Jones v. City Of Atlanta

• Decision Date: 03 May 1935
• Docket Number: No. 24658.,24658.
• Citation: 51 Ga.App. 218,179 S.E. 922
• Parties: JONES. v. CITY OF ATLANTA.
• Court: Georgia Court of Appeals

51 Ga.App. 218

179 S.E. 922

JONES.

v.CITY OF ATLANTA.

No. 24658.

Court of Appeals of Georgia, Division No. 1.

May 3, 1935.

Syllabus by the Court.

The power granted a municipality to regulate the conduct and operation of a business which is in all ways lawful does not embrace the power to prohibit or destroy. The power to regulate markets and provide reasonable rules for their conduct, looking to the health and safety of a city or community, is a power within the scope of the power of a municipality, and the court will not look closely into mere matters of judgment where there may be a difference of opinion. A municipality, however, has no authority, by ordinance, to declare a useful and per se perfectly lawful business a nuisance, and provide for the issuance of permits by the city, which may be granted or declined in the discretion of the governing authorities. The conviction of the defendant was therefore contrary to law. The judge of the superior court erred in denying the petition for certiorari.

Error from Superior Court, Fulton County; Edgar E. Pomeroy, Judge.

J. F. Jones was convicted in the Recorder's Court of the City of Atlanta of operating a curb market without a permit, and he brings error.

Reversed.

J. K. Jordan, J. Hugh Rogers, and Geo. G. Finch, all of Atlanta, for plaintiff in error.

J. L. Mayson, C. S. Winn, and J. C. Savage, all of Atlanta, for defendant in error.

GUERRY, Judge.

The defendant was convicted in the recorder's court of the city of Atlanta of operating a curb market on Washington street in that city. It appears that he made appli cation for a permit to operate such market and tendered to the city in cash the license fee, and a permit was refused him. It was shown that a permit was issued to others in the immediate vicinity to conduct a similar business. He was tried for and convicted of a violation of the following ordinance:

"Whereas, the presence of curb markets has grown to be a nuisance in many sections of the city where they are now located, and Council should pass upon these locations frequently in order to protect the communities from such nuisances; therefore be it ordained by the Mayor and General Council as follows:

"Section 1. That operators, owners, and managers of curb markets shall obtain a permit from the Council every six months, beginning with the first day of July, 1933, meaning by this that on or before that date the operators, managers, or owners of curb markets in the City of Atlanta shall apply and obtain the approval for the operation of these places and shall thereafter each six months from that date secure such a similar approval."

"Section 3. All owners, operators, or managers of curb markets shall make an application to this body, giving the name of the owners, or manager of such curb markets, and the location of the same, together with the size of the market incorporated therein or used in connection therewith. Said application shall state whether or not a permit has heretofore been granted for such curb market, and shall give such other information as may seem advisable to the applicant. When this permit has been filed it shall be referred to the City Planning Commission, who shall give notice in a newspaper of general circulation in the city, the time and place of meeting for the consideration of same. After said hearings, upon such applications, the Commission shall report its findings to the Police Committee for their consideration. Before the Commission holds public hearings on such matters, it is the duty of one or more investigators from the Police Department, jointly with one or more investigators from the office of the Commission, to make a survey of conditions surrounding such locations, and to report jointly to the Commission at its hearings and the Police Committee at its hearings. After said hearings, upon such applications, the Police Committee shall report back to this body their findings either for or against the grant of permit for the operation of said curb market or markets, and Council shall thereupon take final action upon same.

"Section 4. For the purpose of this ordinance, curb markets defined as follows: Those markets established upon vacant lots or parts of lots, or on vacant portions of lots in front or rear of buildings, for the sale of produce, fruits, meats, etc., from trucks or other modes of transportation, or from boxes set upon the ground or otherwise.

"Section 5. The above language defining the things that may be sold in said markets is general and not exclusive, and in construing same, the sale of articles, in, or on such places, being articles which are ordinarily sold at such markets and places, are included herein."

The ordinance was attacked on the ground that it was unreasonable and void, for that it declares curb markets to be a nuisance, and for that reason grants to the mayor and council the arbitrary authority to grant or withhold the right to operate the same "without any guide or reason other than the whim or caprice of such governing authority, " and thereby prevent any citizen from conducting a lawful business on his own property, however perfect or inoffensive such business may be, and because it grants authority to favor locations, rather than the character of the business operated, and tends to create a monopoly in those whose influence is sufficient to secure permits and prevents competitors from securing such permits; that it is not authorized by the charter of the city of Atlanta, that it is violative of the constitutional provision, that "private property shall not be taken, or damaged, for public purposes, without just and adequate compensation being first paid" (Const art. 1, § 3, par. 1); that it deprives the owner of a curb market of his lawful business of operating the same and destroys the value of his improvements without compensation, and is violative of the due process clause. Civil Code 1910, § 6359 (Const. art. 1, § 1, par. 3), and of paragraph 2, section 1, article 1, of the Constitution (Civ. Code 1910, § 6358), which provides that: "Protection to person and property is the paramount duty of government and shall be impartial and complete."

The right to transact a business within realms or bounds which are not contrary to public health, safety, morals, or policy is a property right, and must be preserved to the citizen without discrimination. Civil Code 1910, §§ 6388, 6358 (Const art 1, § 1, par. 2; art 1, § 3, par. 1). Schlesinger v. City of Atlanta, 161 Ga. 148, 129 S. E. S61; McIntyre v. Harrison, 172 Ga. 65, 157 S. E. 499. A citizen's business is a property right and, as such, Is entitled to protection against discriminatory or prohibitive legislation. Schlesinger v. City of Atlanta; McIntyre v. Harrison, supra. The power to regulate markets and provide reasonable rules for their conduct, looking to the health and safety of a city or community, is a right within the scope of municipal regulation, and the court will not look "closely into mere matters of judgment where there may be a difference of opinion, " and will not interfere with the exercise of the discretion granted to municipalities upon the ground of unreasonableness, except in a clear case. "Regulations relating to markets must be reasonable, and not arbitrary or discriminatory. The regulation must have its foundation on public necessity, it must have some rational tendency to promote the public health, safety and welfare of the community." 43 C. J. p. 392. "The power to regulate does not include the power to destroy." The power to license includes the power to regulate, and the power to...