Miller v. City of Memphis

• Decision Date: 04 March 1944
• Citation: 178 S.W.2d 382
• Parties: MILLER v. CITY OF MEMPHIS et al.
• Court: Tennessee Supreme Court

Page 382

178 S.W.2d 382

MILLER v. CITY OF MEMPHIS et al.

Supreme Court of Tennessee.

March 4, 1944.

Appeal from Chancery Court, Shelby County; Lois D. Bejach, Chancellor.

Suit for declaratory judgment by Lee Miller against the City of Memphis and others. From a decree for defendants, complainant appeals.

Affirmed.

Wils Davis and W. H. Fisher, both of Memphis, for complainant.

John L. Exby, Frank B. Gianotti, Jr., and Sylvanus W. Polk, all of Memphis, for the City.

NEIL, Justice.

The complainant Lee Miller filed his original bill under the declaratory judgment statute, in which he alleged that a certain ordinance of the City of Memphis is invalid, the same requiring a permit for the operation of music boxes, commonly spoken of as "juke" boxes. The complainant alleges that he leases these music machines to various persons in the City of Memphis and elsewhere and that they are operated by an electric current; that they play selections of music automatically upon the insertion of a coin placed in a slot by customers; that he has paid State, County, City, and Federal Government privilege taxes; that he held licenses issued by the City of Memphis to operate machines for 1943, a separate license being issued for each machine; but in April, 1943, the City passed an ordinance which imposed an additional requirement, in that it required, as a prerequisite to the installation and operation of a machine, the securing of a permit from the Chief of Police at a cost of two dollars for each permit and making it unlawful to operate it otherwise. It is further alleged that some permits were granted and some denied; that he was advised that no more blank forms for applications for permits would be given him and no further permits would be issued. The validity of the ordinance is assailed on the following grounds: (1) said ordinance is in violation of the due process clause of the Constitution of the United States (Section 1 of the Fourteenth Amendment) and that it violates Article 1, Section 8, of the Constitution of Tennessee; (3) that the ordinance is ultra vires and not fairly referable to the police power of the municipality; (4) that said ordinance is unreasonable and deprives complainant of the lawful right to operate his business, etc.; (5) that it vests the City of Memphis with power to impair the revenue of the State, County, and Federal Government; (6) said ordinance abridges the privileges and immunities of complainant and other citizens; and (7) that it is "unreasonable, arbitrary, discretionary, oppressive, and unequal in its application to persons and citizens". The prayer of the bill is that defendants be enjoined from enforcing the ordinance.

The Chief of Police and Commissioner of Public Safety who were made parties defendant demurred to the bill on the ground that no relief is sought against them. The City of Memphis demurred upon the following grounds:

"The payment of the taxes for the privilege of operating said mechanical music machines does not preclude the City of Memphis from making reasonable regulations pertaining to their use and operation.

"(A) Nor does the ordinance in regulating the use and operation of said mechanical music machines violate any constitutional rights of complainant or others similarly situated.

"(B) Nor does the regulation imposed thereby violate any constitutional rights and privileges of complainant, or others similarly situated, in that it may impose some additional burden or requirements upon the exercise of the privilege of operation of said machines.

"The provisions in Section Six (6) to Sixteen (16) of said ordinance are not invalid because the requirements made therein are designed to and do protect the safety, health, general welfare, peace and morale and do not violate any provisions of the Constitution of the United States or of the State of Tennessee."

The Chancellor sustained the demurrers and dismissed the bill, holding that the ordinance was neither invalid nor unreasonable and that it did not violate the Constitution of the United States or of the State of Tennessee, that the Court had no jurisdiction to enjoin the enforcement of a penal law, and that complainant had not exhausted his remedy by appeal to the City Commission as provided by the ordinance.

Complainant has appealed and the several assignments of error raise the single question as to the authority of the City of Memphis to regulate the operation of musical machines or "juke boxes" by requiring a permit of the owner or lessor. Complainant contends (1) that the ordinance is unconstitutional for the reasons above mentioned; (2) that it is not based upon any statutory authority; and (3) that it is not within the general police power of the municipality. The defendants by demurrer challenge the correctness of complainant's contention and insist that it is a valid ordinance; that it is based upon an express statute, and, moreover, is a valid exercise of authority under the general police power.

Before discussing the legal question involved we should give attention to the pertinent sections of the ordinance that is assailed. Section 1 makes it unlawful for "any person to set up or operate within the city limits of Memphis any mechanical amusement device without first obtaining a permit from the Chief of Police," etc. Section 2 defines a mechanical amusement device as follows:

"`Mechanical Amusement Device' shall mean any machine or device which, upon the insertion of a coin, slug or token in any slot or receptacle attached to said machine or connected therewith, operates or which may be operated for use as a game, contest or amusement or which may be operated for the playing of music or may be used for any such game, contest or amusement and which does not contain a pay-off device for the return of slugs, money, coins, checks, tokens or merchandise."

Section 4 makes it unlawful for any owner or operator of such a device to cause, permit, or allow same to be located, operated, or maintained within six hundred feet of the nearest street entrance to or exit from any public playground or public or private school of elementary or high-school grades. Section 5 provides for making application to the Chief of Police for such permit and that the applicant shall give the following information:

"(a) Name of applicant;

"(b) Place where said mechanical amusement device is to be placed, maintained to be operated or operated; and, if said mechanical amusement device is to be placed, maintained to be operated or operated in connection with any other business or calling, the character of said business or calling;

"(c) The number of mechanical amusement devices placed, maintained to be operated, or operated then in the place where said mechanical amusement device is to be placed."

Section 6 requires the payment of two dollars for each application and it shall be renewed annually. Section 8 provides that the Chief of Police shall "cause to be investigated the statements as set forth in the application". Section 10, that the Chief of Police may, "in exercise of sound discretion, if he deems that the applicant for said permit is not of good moral character, deny said permit, and he may,...