De Berry v. City of La Grange

• Decision Date: 12 March 1940
• Docket Number: 27836.
• Parties: DE BERRY v. CITY OF LA GRANGE.
• Court: Georgia Court of Appeals

8 S.E.2d 146

62 Ga.App. 74

DE BERRY v. CITY OF LA GRANGE.

No. 27836.

Court of Appeals of Georgia, Division No. 1.

March 12, 1940

[Copyrighted Material Omitted]

Grover C. Powell, of Atlanta, and W. A. Mason, of Macon, for plaintiff in error.

J T. Thomasson, of La Grange, for defendant in error.

GUERRY Judge.

The plaintiff in error was convicted in the recorder's court of the City of La Grange upon a charge of violating the following ordinance of the city, to wit: "The practice of going in and upon private residences in the City of LaGrange, Georgia, by solicitors, peddlers, hawkers itinerant merchants and transient vendors of merchandise, not having been requested or invited so to do by the owner or owners, occupant or occupants of said private residences, for the purpose of soliciting orders for the sale of goods, wares and merchandise, and/or for the purpose of disposing of, and/or peddling or hawking the same, is hereby declared to be a nuisance, and punishable as such."

The plaintiff in error filed her demurrer to the charge and contended by such demurrer that said ordinance prohibited "the circulation of the printed page at the homes of the people of LaGrange when the same is not given away free, thus curtailing the freedom of the press and the free and uninterrupted distribution or circulation of the printed page, contrary to the due process clause of the 14th amendment to the Constitution of the United States and contrary to the first amendment thereto and contrary to Article one, section one, paragraph 3 of the Constitution of the State of Georgia (Code, § 2-103) and that the ordinance is invalid under the due process clause of the 14th amendment to the Constitution of the United States (Code, § 1-815), and in that it unduly and unreasonably restricts or absolutely prohibits the carrying on of certain harmless occupations, and by declaring that to be a nuisance which in fact is not a nuisance, and is therefore unreasonable, and thus seeks to deprive the defendant of a valuable property right, and is also discriminatory and contravenes a common right."

Exceptions are taken to the overruling of this demurrer. This court is asked to declare the above ordinance unconstitutional, or unreasonable or arbitrary. In order to justify a court in pronouncing a legislative act unconstitutional or a provision of a state constitution to be in contravention of the Constitution of the United States, the case must be so clear as to be free from all doubt. 11 Am. Jur. 719, § 92. This same rule of construction ordinarily is applied by this court in passing upon the validity of ordinances of a municipalty the charter of which gives to it the right to make or pass such ordinances. However, "municipal ordinances must be reasonable. The limitations of the power of a city council in this regard are not to be measured by the more extensive powers of the state Legislature." Mayor & Aldermen of Savannah v. Cooper, 131 Ga. 670, 676, 63 S.E. 138, 141. "Ordinances cannot be oppressive or unreasonable, nor can they unfairly discriminate in favor of one citizen or of one class against another." Toney v. Mayor and Council of Macon, 119 Ga. 83, 87, 46 S.E. 80, 82; City of Acworth v. Western & Atlantic Railroad Co., 159 Ga. 610(2), 126 S.E. 454. In approaching such a question, or in determining such a question, it should be borne in mind that there is a presumption in favor of the constitutionality of a legislative enactment. In Cooper v. Rollins, 152 Ga. 588, 110 S.E. 726, 20 A.L.R. 1105, it was said: "This court will not declare an act of the Legislature unconstitutional, unless the conflict between the act and the Constitution is clear and palpable." An ordinance, however, may be declared invalid because unreasonable without declaring it unconstitutional. Richardson v. Coker, 188 Ga. 170, 3 S.E.2d 636, 637(2); Chaires v. City of Atlanta, 164 Ga. 755, 139 S.E. 559, 55 A. L.R. 230; City of Acworth v. Western & Atlantic Railroad Co., supra; Mayor and Aldermen of Savannah v. Cooper, supra.

Such an ordinance as this one is undoubtedly an attempt by the municipality to exercise the grant of the police power as given to it by its charter. It contravenes no provision of the constitution with respect to the freedom of speech. Unless this police power is restricted by the definite provisions of the Constitution of the United States or the Constitution of the State of Georgia, courts are powerless to declare ordinances passed under such police power to be invalid.

The police power is an attribute of sovereignty and a necessary characteristic of every civilized government. It is inherent in the State of Georgia and in municipal corporations where there has been an express grant by the state to the municipal corporations through their charters.

It is an inherent power of government because the existence of government, as well as the social order, security, life and health of the individual citizen, depend upon it. In American government the police power is a grant from the people to their governmental agents. This is recognized by the Constitution of Georgia, Article 1, Section 1, paragraph 1 (Code, § 2-101), which provides: "All government, of right, originates with the people, is founded upon their will only, and is instituted solely for the good of the whole." This police power may be said to be the bed rock of government; all other governmental powers are ancillary and corollary to it. Blackstone defines it as "The due regulation and domestic order of the Kingdom, whereby the individuals of the state, like members of a well governed family are bound to conform their general behavior to the rules of propriety, good neighborhood and good manners, and to be decent, industrious, and inoffensive in their respective stations." Sweet v. Rechel, 159 U.S. 380, 399, 16 S.Ct. 43, 40 L.Ed. 188.

It will be borne in mind that the congress or legislature is but the authorized agent of the whole people, and that the constitution, whether state or federal, is in respect to laws a limitation on the powers which are otherwise inherent in the people or their duly constituted representatives. Unless therefore a statute or ordinance passed by a duly constituted legislative authority is violative of the limitations placed on the police power by the constitution, or as is more commonly stated, is repugnant to the constitution, it is not invalid.

When a law is attacked on the ground that it deprives a citizen of liberty or property without due process of law, we should call to mind that the underlying principle of laws passed under the inherent police power of the government is that it is the duty of each citizen to use his property and exercise his rights and privileges with due regard to the personal and property rights of others. The old saying, "my right ends where your nose begins," though trite, is applicable. The safety of the people is the supreme law of the land. Justice Holmes, quoting approvingly from Camfield v. United States, 167 U.S. 518, 17 S.Ct. 864, 42 L.Ed. 260, has said that "in a general way *** the police power extends to all the great public needs," saying further: "It may be put forth in aid of what is sanctioned by usage, or held by the prevailing morality or strong and preponderant opinion to be greatly and immediately necessary to the public welfare." Noble State Bank v. Haskell, 219 U.S. 104, 111, 31 S.Ct. 186, 188, 55 L.Ed. 112, 32 L.R.A.,N.S., 1062, Ann.Cas.1912A, 487. The fact, however, that it may be exercised for the promotion of the general welfare does not mean that it is unlimited. There is no exact definition of its limitations for the reason that the provisions of the constitution itself which limit its application are themselves necessarily statements of general principles, whose application is, and must be, left to the determination of the courts. The 14th amendment does not curtail, restrain, destroy or take from the States the right duly and properly to exercise the police power. The law passed by reason of such inherent powers of government must not unreasonably invade the rights guaranteed by the constitution and thus become repugnant to it. The question then becomes, in the present case, whether the exercise of the police power by the mayor and council of the city of LaGrange given to them by their charter is an invasion of the due process clause of the state or federal constitutions.

If a vocation or business, or the manner of exercising it, is injurious to the rights of others or is inconsistent with the public welfare, it may be regulated or prohibited altogether by the State or its delegated authorities. The Supreme Court of this state, in Clein v. City of Atlanta, 164 Ga 529, 139 S.E. 46, 49, 53 A.L.R. 933, has said, "unless the regulations are so utterly unreasonable and extravagant that the property and personal rights of the citizen are unnecessarily, and in a manner wholly arbitrary, interfered with or destroyed without due process of law, they do not exceed the limits of the police power of the city to pass." The power to regulate, however, does not imply the power to prohibit entirely, unless such business comes within a class that may be declared harmful. The regulations imposed upon an ordinarily harmless business or vocation must not be unreasonable or arbitrary. The right to earn a living by pursuing an ordinary occupation is protected by the constitution. This right is fundamental, natural, inherent, and is one of the most sacred and valuable rights of a citizen. His business or calling is properly within the meaning of the due process clause of the constitution. In Cosgrove v. City Council of Augusta, 103 Ga. 835, 836, 31 S.E. 445, 42 L.R.A. 711, 68 Am.St.Rep. 149, it was said: "It is elementary that...