Chaires v. City of Atlanta
| Docket Number | 5648,5649. |
| Decision Date | 14 September 1927 |
| Parties | CHAIRES et al. v. CITY OF ATLANTA. CITY OF ATLANTA v. CHAIRES et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
The city of Atlanta passed an ordinance which, in the second section, contains the provision that "all barber shops in the city of Atlanta shall hereafter be closed during the week days at 7 o'clock p. m., except on Saturdays, when they shall close at 9 o'clock p. m." By amendment to this section it is provided that the opening hour shall be 5:30 a. m. Held, that the ordinance is void on the ground that it is unreasonable.
The court did not err in enjoining the enforcement of so much of section 1 of the ordinance as prohibits colored barbers "from serving as barbers [white] children under the age of 14 years." This section is void, being in violation of those sections of the state and federal Constitutions which guarantee equal protection of the laws, inviolability of property rights, and due process of law.
There was no such error in the court's ruling upon admissibility of evidence as requires the grant of a new trial.
While equity will not ordinarily enjoin a criminal prosecution, yet where repeated prosecutions are threatened under a void municipal ordinance, and the effect of such prosecutions would tend to injure or destroy the property of the person so prosecuted or interfere with and destroy the lawful business of such person, or deprive him of the legitimate prosecution of his business, equity will entertain a suit to inquire into the validity of the ordinance and to enjoin its enforcement.
Error from Superior Court, Fulton County; John D. Humphries, Judge.
Petition for injunction by R. C. Chaires and others against the city of Atlanta. Judgment for plaintiffs for part of the relief demanded, plaintiffs bring error, and defendant files cross-bill. Reversed on main bill of exceptions; affirmed on cross-bill.
Brandon & Hynds, Little, Powell, Smith & Goldstein and Alston Alston, Foster & Moise, all of Atlanta, for plaintiffs in error.
James L. Mayson and Alexander & McLarty, all of Atlanta, for defendant in error.
1. We are of the opinion that the court erred in refusing to enjoin the enforcement of section 2 of the ordinance in question. The amendment to section 2, which is shown in the evidence did not remove the objectionable features of the ordinance. The questions made as to the validity of section 2 of the ordinance are important, but are by no means novel. The same questions have been considered and decided by courts of last resort in several states of this country. While the precise question presented has not been ruled on by this court, decisions have been rendered by this court which announced principles that are applicable to the issues here presented. We can reach no other conclusion than that section 2 of the ordinance is not based upon a lawful classification, and that it is discriminatory. The provisions of section 2 are not made applicable to other places of business, with the exception of certain places of business of such a character as differ in such material particulars as to justify a closing ordinance as to them. For instance, pool and billiard rooms are required to close at 10 o'clock at night; pawnshops are closed at 8 o'clock; junk dealers are forbidden by an ordinance of the city from carrying on their business of handling junk, as dealer or buyer or otherwise, later than 6 o'clock p. m. or earlier than 6 o'clock a. m.; and soda water, soft drink and ice cream vendors are forbidden to sell on the sidewalk near the places of business of such dealers except from 9 o'clock in the morning until 11:30 at night, though sales are at all times permitted inside the dealers' places of business. There are reasons for closing pawnshops and junk shops and pool and billiard rooms, which it is not necessary here to set forth, but which are clearly not applicable to barber shops.
Persons engaged in the operation of barber shops are carrying on a perfectly lawful business. It is not, in any sense of the word, a noxious business. In fact, the business may be regarded as indispensable in the present development of our civilization, if we have regard to the requirements of decency and cleanliness. There is ample evidence in the record to show that if the barber shops are closed at 7 o'clock in the evening and not permitted to open until next morning, there will be a large and numerous class of citizens, both white and colored, who cannot avail themselves of the service of barbers. It is shown that certain mercantile establishments, having in their service numerous employees, require the attendance of those employees until a later hour than that at which the barber shops under this ordinance would be required to close. And in addition to this, those engaged in domestic service and in the various branches of such service are detained in the discharge of their duties in this employment to an hour that would prevent their availing themselves of the service rendered in barber shops, if such shops are closed at the hour of 7 o'clock. The section of the ordinance with which we are now dealing is therefore void, as being unreasonable, upon the grounds which we have stated above, and other grounds could be adduced if necessary. And it is discriminatory, because it selects one particular lawful business that is in no wise noxious, and requires those operating this business to close at a very early hour, but leaves unregulated as to hours of closing various other businesses.
In Ex parte Leo Jentzsch, 112 Cal. 468, 44 P. 803, 32 L.R.A. 664, the Supreme Court of California thus decides the identical question which we have before us:
"A statute prohibiting barbers to carry on business after 12 o'clock on Sunday or on a legal holiday, and applying to no other class of labor, is unconstitutional as special, unjust, and unreasonable, working an invasion of individual liberty, since it is based upon no distinction to justify singling out that class of laborers."
In the course of the opinion the California court' said further:
If section 2 of the ordinance was adopted because, as it is urged, barber shops afford peculiar facilities for the commission of offenses against the laws, and because their remaining open at night makes it more difficult to enforce the laws referred to, and particularly those laws which relate to the illegal sale of narcotics and intoxicants, it cannot be sustained; because, while some facts are shown by the city sustaining the contention that the prohibition laws were violated in certain instances in barber shops at night, those instances were comparatively few, and it is certainly not shown that more violations of the laws referred to would have been apprehended in case barber shops were allowed to remain open until late hours at night than would have been if certain other businesses were kept open by those operating them until a late hour. For instance, pool and billiard rooms can be operated until 10 o'clock at night, and other businesses might be specified which can be carried on, under the ordinance of the city, until a much later hour. In the case of Watson v. Thomson, 116 Ga. 546, 42 S.E. 747, 59 L.R.A. 602, 94 Am.St.Rep. 137, it was said:
"A municipal corporation cannot, under the general welfare clause usually found in municipal charters, prohibit one from carrying on a lawful vocation on Christmas Day, when there is nothing in the character of the business carried on which is calculated to interfere with the peace, good order, and safety of the community."
In the case of Clein v. Atlanta, 164 Ga. 529, 139 S.E. 46, this court had under consideration an ordinance regulating the hours during which the business of auctioning jewelry might be conducted. This also involved the right, of course, to make a classification of the business of auctioning jewelry. The classification was there recognized as legitimate, but the features of that business which rendered the classification there legitimate do not exist as regards the barber business. In the decision of the Clein Case several cases are cited which bear upon the question now before us, and for that reason we have referred to the case.
A case closely in point here is that of Yee Gee v. San Francisco (D. C.) 235 F. 757, where the plaintiff, a native-born citizen of the United States but of the Chinese race, had for many years owned and conducted a public laundry in the city of San Francisco, and he brought his bill in equity to restrain the enforcement of an ordinance of the board of supervisors, regulating laundries, and particularly to restrain the enforcement of certain provisions thereof on the ground that they violated the Fourteenth Amendment to the Constitution of the United States, and that such enforcement would deny to plaintiff the equal protection of the laws and deprive him of his property rights without due process of law. The general assignment of invalidity involving the operation of the ordinance as a whole was "that it is unreasonably and arbitrarily discriminatory." Among the features of the ordinance assailed was a provision limiting and restricting the hours of the day within which such business might be carried on and laundry work performed in a manner and to an extent which it was asserted...
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