City of Nashville v. Snow
| Citation | 49 S.E.2d 808,204 Ga. 371 |
| Docket Number | 16294,16319. |
| Decision Date | 16 September 1948 |
| Parties | CITY OF NASHVILLE et al. v. SNOW et al. SNOW et al. v. CITY OF NASHVILLE et al. |
| Court | Supreme Court of Georgia |
Rehearing Denied Oct. 13, 1948.
Syllabus by the Court.
1. The allegations of the petition were not sufficient to state a cause of action for declaratory relief, and the trial judge should have sustained a demurrer attacking the petition for that reason.
2. Since the entire petition should have been dismissed on demurrer, it is unnecessary to pass on the question presented by the cross-bill of exceptions.
J P. Knight and Jack Knight, both of Nashville, for plaintiffs in error.
Langdale Smith & Tillman, of Valdosta, and Fred L. Belcher, of Nashville, for defendants in error.
On February 9, 1948, the City of Nashville adopted an ordinance concerning the use of its streets and alleys. Section one of the ordinance, among other things, made it a penal offense for any person, firm or corporation to use its streets and alleys for gain or profit 'in connection with the soliciting of business, processing, cleaning, taking orders for or picking up or delivering any merchandise, laundry, or dry cleaning, goods, or other articles' until the city has first granted a permit to use them for such purpose. Section two of the ordinance expressly provided that it is not the intention of the city to establish and fix rules, regulations, restrictions or conditions upon compliance with which it will grant such a permit, but that the city in all cases retains the right, within its discretion, to grant or refuse any application for such a privilege. Under the third section of the ordinance all applications for such a permit must be made in writing. On March 31, 1948, the city, with reference to the use of its streets and alleys, took this further action: 'Be it hereby resolved and ordained by the mayor and council of the City of Nashville, Georgia, that: (1) In order for any person, firm, or corporation to obtain a permit from the City of Nashville, Georgia, for the purpose of using the streets of said city for soliciting, transporting, or collecting dry cleaning or laundry, for hire, or gain, said person, firm or corporation shall first obtain the special license as fixed upon said business or businesses by said city, and shall comply with all the requirements, as set out in paragraph 2 of this ordinance, for obtaining said special license; (2) any person, firm, or corporation desiring to engage in the business of dry cleaning and pressing clothes and/or operating a laundry, or taking clothing for dry cleaning, pressing or laundering shall be issued a special license to carry on said business or businesses in said city upon complying with the following requirements: (a) Any person, firm, or corporation operating a dry cleaning and/or pressing establishment shall pay a special license tax of $25; (b) any person, firm or corporation operating a laundry or laundering clothing shall pay a special license tax of $25; (c) if any person, firm, or corporation, whether principal or agent, resident or non-resident, owns, controls, operates, carries on, and/or engages in said business in more than one locality, within a radius of seventy-five (75) miles of the City of Nashville, Georgia, the said applicant shall set out a schedule of charges for work similar in kind to that proposed to be carried on in the City of Nashville, Georgia, that is charged in each said locality wherein said applicant as principal or agent, owns, controls, and operates, carries on, and/or engages in the business the applicant intends to carry on in said City of Nashville, Georgia; and the mayor or council of said City of Nashville, Georgia, shall from an inspection of such schedule of charges, determine whether the applicant intends to engage in unfair competition in said City of Nashville, Georgia, with any person, firm or corporation licensed or who may be licensed to engage in said business in said city, and issue or decline to issue the license according to whether the question is determined in the negative or affirmative; (d) if said person, firm or corporation engages in or carries on any of the aforesaid businesses in the City of Nashville, Georgia, and removes or causes to be removed from the City of Nashville, Georgia, any article belonging to residents of the City of Nashville, Georgia, for the purpose of having the said article laundered, cleaned, or dyed, before engaging in business in said City of Nashville, Georgia, or before removing any article belonging to residents of said city from the said City of Nashville, Georgia, shall be required to file with the clerk of the City of Nashville, Georgia, a bond in the sum of $2500 signed by a reliable surety company to indemnify any resident of said city against loss by reason of any damage to property or person caused by said person, firm, or corporation so engaging in said business; (e) if said person, firm or corporation shall not be a resident of Berrien County, Georgia, an attorney-in-fact, with authority to accept service of suits and be sued in Berrien County, Georgia, shall be appointed by and for said person, firm, or corporation, so that all persons, firms or corporations engaging in said businesses in said city may be subject to suit in Berrien County, Georgia; and (f) any person, firm or corporation, or the agents and employees thereof, engaging in said business or businesses without having first obtained said special license shall be guilty of doing business without having obtained a license and shall be punished as provided in section 99 of the Code of ordinances of the City of Nashville, Georgia, of 1915.'
Snow's Laundry & Dry Cleaning Company (a partnership composed of William A. Snow, Alfred Gardiner, Sidney Tidwell, and George Stelljes, all of Bibb County, Barney B. Ratliff and D. L. Bliss, of Chatham County, Joseph Sandefur, of Muscogee County, and D. L. Maddux, of Lowndes County, brought a suit in the Superior Court of Berrien County against the City of Nashville and its corporate officers for a declaratory judgment and certain equitable relief.
The petition, as amended, alleges that the plaintiff is engaged in a general laundry and dry-cleaning business in the City of Valdosta and the surrounding territory, including the City of Nashville. Its employees, driving trucks, call at the homes and places of business of customers to pick up articles to be laundered and dry-cleaned, and to deliver articles previously picked up for that purpose. To render this service in the City of Nashville, it is necessary for the plaintiff to use the streets and alleys of the city. The plaintiff, although expressly denying the validity of the ordinance of February 9, 1948, in order to preserve its business and avoid irreparable injury thereto, made application to the City of Nashville for the special license required by the ordinance of March 31, 1948, and in compliance with section two of the latter ordinance tendered the fees due under subparagraphs (a) and (b), filed the schedule of charges required by subparagraph (c), offered to give the bond provided for by subparagraph (d), but declined to appoint an attorney in fact under subparagraph (e). The defendant city refused to grant the application and has notified the plaintiff of its intention to enforce its ordinances and to arrest the members, agents, and employees of the plaintiff and cause them to be fined or imprisoned, or both, unless the plaintiff complies with all of the terms and provisions of both of its ordinances. Such action by the defendant city will seriously hamper and interfere with the transaction of the plaintiff's business, will result in repeated criminal prosecutions, and will cause it to suffer irreparable injury. The ordinance of February 9, 1948, is invalid, void, and without legal effect because the city is without charter power or other authority to adopt it; it is arbitrary and unreasonable in that it seeks to limit the use of the streets and alleys of the city by those who are legally entitled to the unrestricted enjoyment thereof; and because it is in violation of stated provisions of the State and Federal constitutions. Subparagraph (c) of section 2 of the ordinance of March 31, 1948, is null, void, and without binding effect because it is arbitrary and unreasonable, in that it requires the applicant for a special license to disclose the charges made for like services rendered in other localities within a given radius, this being a question about which the defendants can have no lawful interest or concern; the city is without charter power or other authority to enact it and the same is an ultra vires act, since the defendants have no right or power to regulate the business or activities of the plaintiff either inside or outside of the City of Nashville or to declare the same to be an unfair method of competition; and because the condition furnishes no proper basis upon which the defendant city may determine whether or not the plaintiff is engaged in unfair competition. It is further alleged that subparagraph (e) of the same section of said ordinance of March 31, 1948, is null, void, and of no effect because it violates art. 6, sec. 14, par. 4, Code, Ann.Supp. § 2-4904, of the constitution of 1945, fixing the venue of civil actions against copartners; and further because it is arbitrary, unreasonable, and contrary to public policy, in that it requires the plaintiff, as a condition precedent to obtaining a license for the conduct of a lawful business, to waive the legal right which copartners have to be sued in the county where one or more of such partners reside.
Besides for process, the petition prayed that the court by declaratory judgment...
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