Jewel Tea Co., Inc. v. City of Cartersville

• Decision Date: 09 March 1938
• Docket Number: 12059.
• Citation: 196 S.E. 712,185 Ga. 799
• Parties: JEWEL TEA CO., Inc., v. CITY OF CARTERSVILLE et al.
• Court: Georgia Supreme Court

196 S.E. 712

185 Ga. 799

JEWEL TEA CO., Inc., v. CITY OF CARTERSVILLE et al.

No. 12059.

Supreme Court of Georgia

March 9, 1938

Error from Superior Court, Bartow County; C. C. Pittman, Judge.

Suit by the Jewel Tea Company, Inc., against the City of Cartersville and another to restrain the defendants from enforcing against the plaintiff and its agents an ordinance prohibiting personal calls at private residences for the purpose of soliciting orders for the sale of merchandise unless the caller was first invited to make the call by the occupant. A judgment was entered refusing an interlocutory injunction and the plaintiff brings error.

Affirmed.

RUSSELL C.J., dissenting.

Syllabus by the Court.

On conflicting evidence the judge was authorized to find that the instant case did not present any exception to the general rule that injunctions will not issue to restrain criminal prosecutions. Accordingly, there was no abuse of discretion in denying an interlocutory injunction.

Richard D. Sturtevant, of Barrington, Ill., E. J. Summerour, of Cartersville, and Albert E. Mayer, of Atlanta, for plaintiff in error.

Finley & Henson and Neel & Ault, all of Cartersville, for defendants in error.

BELL Justice.

The question in this case is whether the court erred in refusing an interlocutory injunction as prayed by the plaintiff. The Jewel Tea Company by its petition as amended sought an injunction against the City of Cartersville and L. V. Payne as chief of police, to restrain the defendants from enforcing against the plaintiff and its agents an ordinance adopted by the City of Cartersville on April 16, 1937, and reading as follows:

'Section 1. The practice of going in and upon private residences in the City of Cartersville, and upon the public streets of the City of Cartersville, by solicitors, peddlers, hawkers, itinerant merchants, and transient vendors of merchandise, not having been requested or invited to do so by the owner or owners, occupant or occupants of said private residences, and by the proper officials of said City of Cartersville as to the streets of said City of Cartersville, for the purpose of soliciting orders for the sale of goods, wares, and merchandise, and/or for the purpose of disposing of and/or pedding or hawking the same, is hereby declared to be a nuisance, and punishable as such nuisance as an offense against the City of Cartersville.

'Section 2. The chief of police and the police force of the City of Cartersville are hereby authorized, required, and directed to suppress and abate any such nuisance as is described in section one hereof.

'Section 3. Any person, persons, firm, or corporation convicted of a nuisance as described in section one hereof upon conviction shall be punished as provided in section 595 of the Code of the City of Cartersville.

'Section 4. Be it further ordained, that if for any reason any part of this ordinance be held unconstitutional or invalid, such holding shall not affect or destroy the constitutionality or validity of any other portion or part of the ordinance.

'Section 5. All ordinances and parts of ordinances in conflict herewith are hereby repealed.'

The petition was filed on May 28, 1937. The plaintiff alleges that it is engaged in the business of selling coffee, tea, toilet articles, and other merchandise, which it delivers directly to consumers, and has established a valuable business in Cartersville; that on May 27, 1937, its branch salesman and route manager C. B. Garrison was arrested and required to give bond in the sum of $100 for his appearance in the recorder's court on May 31, 1937, to answer for an alleged violation of the ordinance; and that other prosecutions are threatened and will be instituted against Garrison and other agents of the plaintiff, unless the defendants are enjoined. It is alleged that the ordinance is invalid, because it violates stated provisions of the State and Federal Constitutions, and because it is arbitrary and unreasonable. An injunction was sought upon the additional ground that in prosecuting the plaintiff's agents, including Garrison, the city authorities are enforcing the ordinance unevenly, in that they are discriminating against the plaintiff and its agents because they are nonresidents of the city, and no attempt is being made to enforce the ordinance against local merchants. The petition also alleges in effect, that the defendants are not acting in good faith, but are prompted by an intention to destroy the business of the plaintiff and its agents; and that the recorder and the police officers would even prevent the agents of the plaintiff from calling at private residences for any purpose, whether on invitation or otherwise, notwithstanding many of the residents were indebted to the plaintiff for goods sold and delivered and had placed orders which the plaintiff desired to fill. The plaintiff prayed for an injunction restraining the defendants from future interference with the plaintiff's business, from prosecuting its branch salesmen or route manager C. B. Garrison, or any other agent of the plaintiff, and from carrying out the 'aforesaid threats of continued prosecution;' for a decree declaring the ordinance void; and for general relief.

The defendants filed an answer in which they admitted the passage of the ordinance in question and their intention to enforce it against Garrison and others violating its terms, but denied the other material allegations of the petition, and especially averred that 'the only purpose of the city authorities is to enforce the provisions of the ordinance in question where an offense is committed in violation thereof; there has not been in the past and there will not be in the future any effort to abate or destroy any business. If the plaintiff or its agents have a request or invitation to go in and upon private residences before doing so, or the visit is made for the purpose of collecting debts or delivering goods sold prior to the adoption of the ordinance there will be no violation of the ordinance, and no interference with such transactions is contemplated or intended.'

The petition as amended and the answer were positively verified, and both were introduced in evidence at the interlocutory hearing. The plaintiff introduced additional evidence in support of the allegations of the petition, and the evidence for the defendants supported in equal degree the denials and allegations contained in their answer. The judge denied the interlocutory injunction. He decided that the ordinance was valid; but he held also that under the evidence the plaintiff was not entitled to an injunction, for the reason that it had an adequate remedy at law by defending the prosecutions. The plaintiff excepted.

The general rule is that an injunction will not issue to restrain a criminal prosecution, and the rule is not changed by the fact that the prosecution may be based upon an invalid ordinance, in the absence of other circumstances to justify interference by a court of equity. This is true for the reason that the ordinance may be attacked as well by a defense to a prosecution as by injunction. Snow's Laundry v. Dublin, 182 Ga. 316, 185 S.E. 343. In the instant case the allegations of the petition and the evidence for the plaintiff, if accepted without question, may have shown sufficient ground for the interposition of a court of equity; but, as stated above, the plaintiff's...