Cosgrove v. City Council of Augusta

• Decision Date: 28 July 1898
• Citation: 31 S.E. 445,103 Ga. 835
• Parties: COSGROVE v. CITY COUNCIL OF AUGUSTA.
• Court: Georgia Supreme Court

31 S.E. 445

103 Ga. 835

COSGROVE v. CITY COUNCIL OF AUGUSTA.

Supreme Court of Georgia

July 28, 1898

Syllabus by the Court.

1. The city council of Augusta has not, under the "general welfare clause" in the charter of that city, the power to pass an ordinance absolutely prohibiting drummers runners, hackmen, cabmen, and all other persons from entering, with the owner's consent, a union passenger depot in such city, "to solicit custom or patrons."

2. The question whether the owner in fee of such a depot, or its lessee, may or may not lawfully grant, to one or more persons, the privilege of entering the same for the purpose of soliciting "custom of patrons," to the exclusion of all others carrying on a like business, is not made in the present case.

Error from superior court, Richmond county; E. H. Callaway, Judge.

C. H Cosgrove was convicted of violating an ordinance of the city council of Augusta, and bring error. Reversed.

Simmons C.J., and Little, J., dissenting.

Jos. B. Cumming and Bryan Cumming, for plaintiff in error.

Wm. H. Davis, Sol. Gen., M. P. Carroll, and Wm. K. Miller, for defendant in error.

FISH J.

1. There is nothing in the charter of the city of Augusta delegating to its city council express power to regulate hacks or the back business. The powers of the council in this respect are derived from the general welfare clause in the act of incorporation. It is elementary that a municipal corporation, in the exercise of police power conferred by the general welfare clause of its charter, for the purpose of promoting the comfort, health, convenience, good order, and safety of its citizens, may pass reasonable ordinances for the regulation of lawful trades and occupations within its limits. But it is not authorized, under such power, to make it unlawful to carry on a lawful trade or business in a lawful manner. There is quite a difference between prohibition of a trade and the regulation of it. Indeed, "a power to regulate seems to imply the continued existence of that which is to be regulated." An ordinance which prescribes that certain persons shall not carry on their business, which would otherwise be legitimate, in a particular place, or on certain premises, is, as to such place or premises, clearly prohibitive; and to authorize the passage of such an ordinance, where the power is undoubted, the injury to the public, which furnishes the justification for the ordinance, should proceed from the inherent character of the business when conducted at such place or upon such premises. Where, however, the business can be conducted there by proper persons without harm or inconvenience to the public, the prosecution of it should not be entirely prohibited, but such necessary police rules and regulations should be prescribed for carrying on such business in that particular locality as may be necessary for the public good. See Corporation of Toronto v. Virgo, 73 Law T. (N. S.) 449. On appeal from the supreme court of Canada, the privy council held (affirming the judgment of the court below) that, where a municipal council had power to make by-laws for "regulating and governing" hawkers, etc., they did not have power to prohibit hawkers from plying their trade at all in a substantial and important part of the city, and that a by-law to that effect was ultra vires; that, when the legislature intended to give power to prevent or prohibit, it did so in express words; and that the provisions of the act did not intend to include a power to prevent or prohibit in a power to regulate or govern. It is stated in the opinion that it was argued that the by-law did not amount to prohibition, because hawkers might still carry on their business in certain streets of the city; but Lord Davey, speaking for the council, said: "The question is one of substance, and should be regarded from the point of view as well of the public as of the hawkers. The effect of the by-law is practically to deprive the residents of the most important part of the city of the power of buying their goods from, or trading with, the class of traders in question. *** At the same time the hawkers, etc., are excluded from exercising their trade in that part of the city." As somewhat in point, see Dill. Mun. Corp. (4th Ed.) § 325; 17 Am. & Eng. Enc. Law, p. 254, and notes; Tied. Lim. 289, 290; Horr & B. Mun. Ord. § 30. The case of Napman v. People, 19 Mich. 352, is very similar to the case at bar. Napman was convicted before the recorder's court of the city of Detroit of violating an ordinance of that city providing that "no porter, runner, hackman, *** omnibus agent *** shall, on the arrival of any *** railroad cars in the city of Detroit, for a period of fifteen minutes thereafter, go upon, or approach within twenty feet of, the *** depot where such *** railroad cars have *** stopped running, or are about to stop running, unless such porter, runner, hackman, *** omnibus agent, *** be requested by a passenger to remove some trunk or other baggage from said depot," etc. The facts, as found by the recorder, were that, by an agreement between the Detroit & Milwaukee Railroad Company and the omnibus company, the drivers and agents...