City of Cartersville v. McGinnis

• Decision Date: 15 July 1914
• Docket Number: 430.
• Parties: CITY OF CARTERSVILLE v. MCGINNIS ET AL. MCGINNIS ET AL. v. CITY OF CARTERSVILLE.
• Court: Georgia Supreme Court

82 S.E. 487

142 Ga. 71

CITY OF CARTERSVILLE v. MCGINNIS ET AL.

MCGINNIS ET AL. v. CITY OF CARTERSVILLE.

No. 430.

Supreme Court of Georgia

July 15, 1914

Syllabus by the Court.

The act approved August 18, 1911 (Acts 1911, p. 919), entitled "An act to amend, consolidate and supersede the several acts incorporating the city of Cartersville in the county of Bartow, state of Georgia," etc., is not unconstitutional because it does not distinctly describe the law to be amended.

Nor is the act open to the constitutional objection of a plurality of subject-matters, or that it contains matter different from what is expressed in the title thereof.

The recital, in the minutes of the municipality, of the enactment of the ordinance shows substantial compliance with the method prescribed by the charter for the enactment of ordinances.

The weighing ordinance of the city of Cartersville is not antagonistic to Civil Code 1910, §§ 1844-1850, and therefore is not invalid on the ground of special legislation concerning matter already provided for by a general law.

A municipal ordinance requiring, under appropriate penalty bulky commodities like cotton and coal for sale within the city limits to be weighed on public scales maintained by the city is a valid exercise of police power.

The wisdom of legislation within the power of the municipality to enact is to be decided by the proper municipal authorities.

An ordinance requiring the weighing of heavy commodities, sold in bulk and by weight in the city limits, on the city scales under an appropriate penalty, is not unreasonable and in restraint of trade. Such legislation is designed to prevent fraud and imposition upon the citizens, and is a legitimate market regulation.

A weighing ordinance, requiring that certain commodities shall be weighed on the public scales before being offered for sale in the municipality, must contain ample provision for compliance with its terms, and must be reasonably administered. The evidence does not show that the ordinance was being administered in an unreasonable manner.

That one may suffer in his business by the enforcement of an ordinance under the police power does not deprive a city of its right to a proper exercise of it.

The enactment and enforcement of a weighing ordinance is in discharge of a governmental function, and does not engage the city in commercial business.

While municipal authorities may lawfully pass an ordinance requiring bulky commodities intended to be sold in the municipality to be weighed on public scales, and that such commodities be sold in the municipality at that weight, yet they cannot give to the public weigher full discretionary power to fix the tare and reductions from the gross weight of any article weighed "according to the custom of the trade, or as conditions necessary to fairness and justice require," and make the tare or reduction thus ascertained by him a conclusive determination of same.

The charter limited the municipality to fixing the penalty by imprisonment to 60 days for the violation of an ordinance. The ordinance fixed the limit of imprisonment at 90 days. In so far as the time fixed by the ordinance exceeded the limitation prescribed by the charter, the ordinance is invalid; but such excess in the time of imprisonment does not impair the validity of the ordinance as a whole.

Error from Superior Court, Bartow County; A. W. Fite, Judge.

Petition by B. H. McGinnis and others against the City of Cartersville to enjoin the enforcement of a weighing ordinance. Judgment for plaintiffs, and defendant brings error, and plaintiffs file cross-bill of exceptions. Affirmed on main bill of exceptions and reversed on cross-bill.

J. H Wikle, Neel & Neel, and J. T. Norris, all of Cartersville for plaintiff in error.

Finley & Henson, of Cartersville, for defendants in error.

EVANS P.J.

This is a petition by B. H. McGinnis and E. M. Goding against the city of Cartersville to enjoin the enforcement of an ordinance requiring cotton and certain other bulky articles sold within the municipality to be weighed on the city scales. It was alleged that McGinnis was engaged in the business of buying and selling cotton under a municipal license, and that Goding was a weigher duly licensed by the ordinary in compliance with Civil Code 1910, § 1844 et seq., and engaged in the business of weighing cotton, and in the employment of his coplaintiff. The court temporarily restrained the defendant from enforcing the ordinance. Subsequently the restraining order was "modified so as to permit the defendant to continue weighing cotton for the public at ten cents per bale, but plaintiffs are required in the meantime to keep a strict account of the number of bales weighed by them during the continuance of the restraining order, to be reported to this court." After hearing evidence on the day set for the interlocutory hearing, the court continued the restraining order, as modified, until the further order of the court, and further directed that this order apply to all buyers of cotton and produce in the city of Cartersville. The city of Cartersville sued out a bill of exceptions, complaining of the continuance of the restraining order, and the plaintiffs sued out a cross-bill of exceptions, complaining that the court erred in refusing to grant a temporary injunction without the modifications imposed by the court.

The substantial features of the ordinance, so far as applicable to the facts of the case, are as follows:

"An ordinance to provide for a public weigher and a system of public weighing, the regulation of weights and measures of cotton, coal, produce, and other commodities sold in the city of Cartersville.

Section 1. The public weigher shall procure from the ordinary of Bartow county a set of standard weights and measures, and shall examine each and every scale and other instrument for weighing and measuring in the city, and all weights and measures shall conform to standards, and for each examination and arrangement of said scales he shall receive the sum of ten cents, and shall stamp the instrument with the letter C."

Section 2 provides for the report of the persons using false weights and measures.

Section 3 provides that: "A system of public weighing is hereby established, and the scales put in service by the ordinance shall be the standard for the city of Cartersville."

"Section 4. One or more weighers shall be employed by the board of commissioners of said city, whose salary shall be $______ per month, and he shall be required to take an oath to justly, fairly, and impartially weigh all articles presented for weighing, and to give a true certificate or other evidence of each article weighed by him. He shall also be required to give bond with good security in the sum of $1,000 conditioned for the faithful performance of his duties as such public weigher."

Section 5 provides for the appointment and removal from office of the public weigher.

"Section 6. Every person, firm, or corporation, before selling in said city any cotton, hay, grain, produce or other article, or anything sold in bulk from wagon or other vehicle, except as herein provided [is required] to have same weighed by the public weigher, who shall make a record, upon a book kept for that purpose, of the date, description of article and weight, and the owner or person having same weighed, and at the same time make out in ink or indelible pencil a certificate or ticket showing the same information, with the correct weight thereof, and sign same in person, and such weight so certified shall be the weight by which such article shall be bought or sold in said city, and for which he shall collect a fee of ten cents, unless otherwise provided by law, to be paid by the owner or person having same weighed; and it shall be the duty, and the purchaser is hereby required, to retain the ticket or certificate and deduct from the purchase price the sum of ten cents for each bale of cotton and ten cents for each load or part of wagon load weighed and certified by him. And the weigher shall daily collect from the purchaser the weighing fee aforesaid, and place same in the city treasury. In the event of any mistake in weight the person getting the advantage occasioned by such error shall refund or make good to the losing party the amount of such error on demand.

Section 7. It shall be the duty of the public weigher to determine all questions of tare or reduction from gross weights of any article weighed, according to the custom of the trade, or as conditions necessary to fairness and justice require; and his decision shall be considered the fair and correct reduction. And, in all weighing, to furnish a certificate of tare, gross, and net weight thereof."

Section 8 provides for the attendance of the public weigher from sun up until sunset, equipped with necessary books, tags, and appliances for carrying out the provisions of the ordinance.

Sections 9, 10, 11, 12, 13, 14, and 15 refer to the weighing of coal.

"Section 16. Any person, firm, or corporation violating this ordinance shall on conviction be fined not exceeding $50, and confined in the city prison or work upon the public streets of the city chain-gang not exceeding ninety days. Either one or more or all of said penalties may be imposed in the discretion of the court; and in the event of violation of this ordinance by a corporation, its chief or managing officer shall be subject to the penalty herein provided, in the discretion of the court."

The validity of this ordinance is attacked on the grounds that the act incorporating the city of Cartersville is unconstitutional; that the ordinance was never adopted as required by the statute; and that it is void as being unreasonable and in restraint of trade, and...