Owens v. Rutherford

• Decision Date: 04 October 1945
• Docket Number: 15283.
• Citation: 36 S.E.2d 309,200 Ga. 143
• Parties: OWENS et al. v. RUTHERFORD, Mayor, et al.
• Court: Georgia Supreme Court

36 S.E.2d 309

200 Ga. 143

OWENS et al. v. RUTHERFORD, Mayor, et al.

No. 15283.

Supreme Court of Georgia

October 4, 1945

Rehearing Denied Dec. 3, 1945.

Syllabus by the Court.

The petitioners sought to enjoin the enforcement of a revocation of their licenses to sell intoxicating liquors, granted to them by the City of Austell after the county in which the city was located had, in pursuance of the act of 1938 Ga.L.1937-38, Ex.Sess., p. 103; Code (Ann.Supp.), § 58-1001 et seq., voted in favor of taxing and controlling alcoholic beverages and liquors. Disregarding the conclusions of law as dealt with in the opinion, infra, the petition as amended properly construed, shows only the revocation, under the delegated police powers of the municipality, of licenses which constituted no property right in the licensees but only permits to do that which otherwise would be unlawful and revocable at any time without cause. The revocation was not in violation of the due-process clause of the State and Federal constitutions or of the provision of the State constitution that laws of a general nature shall have uniform operation throughout the State. The petition as amended did not set forth a cause of action for the relief sought, and the court did not err in sustaining the general demurrer and dismissing the action.

Statement of facts by DUCKWORTH, Justice:

Charlie Owens, T. N. Compton, and E. E. Stone, brought an equitable action against W. D. Rutherford, L. A. Farmer, H. McLendon R. W. Perkerson, Obe Johnston, G. L. Stricker, and Hubert Whitfield, constituting the mayor and general council of the City of Austell, Georgia, to enjoin them from enforcing a resolution revoking their 'business licenses.' The petition alleged substantially the following: Pursuant to the act of 1938, Ga.L.1937-38, Ex.Sess., p. 103, Code (Ann.Supp.), § 58-1001 et seq., an election was duly held in Cobb County, in which a majority of the votes cast were in favor of taxing and controlling alcoholic beverages and liquors and the distribution thereof in said county. The petitioners are, and have been for more than a year next preceding the filing of the petition, citizens and taxpayers of the county, each of them owning and operating a lawful business establishment within the county and being engaged in the business of selling at retail liquors and distilled spirits under and by virtue of licenses issued to them respectively by the State of Georgia, acting through the State Revenue Commissioner, and also by the City of Austell, Georgia. There are no other persons to whom retail liquor licenses have been issued by the city during the calendar year 1945, and thus they operate the only retail liquor stores within the city.

Notwithstanding these facts, a special called meeting of the city council of Austell was held on May 17, 1945, in which a motion was unanimously passed, purporting to revoke the said licenses, it being stated, as a part of said motion, that the purported revocation would be effective on and after May 17, 1945, and further purporting to allow the petitioners a period of time expiring June 30, 1945, to dispose of their respective stocks of goods and inventories. The said motion also embodied a statement purporting to fix the city license fee for the remaining six months of the calendar year of 1945 at the sum of $20,000 for businesses engaged within the city selling at retail distilled spirits and alcoholic beverages. A copy of the minutes of the said meeting of the general council as furnished to the petitioners, was attached to the petition as exhibit 'A' and made a part thereof. This exhibit recites the following: 'Call meeting of mayor and council called to order by mayor, with all councilmen present except councilmen Strickler and McLendon. Mayor asked for spokesman to state cause of meeting. Dan Collins as spokesman stated in was for the purpose of getting rid of liquor stores. Motion was made to vote to revoke liquor license, which was carried by unanimous vote. Motion was made and carried to revoke license as of Jan. 1, effective May 17, 1945, and giving dealers until June 30, 1945, inc. to dispose of stock. Motion made and carried to set license for the remainder of 1945 as $20,000. Motion made and carried to zone from Mulberry to Spring St. (including Broad and Mosley) as only place in town for selling liquor, wine, or beer.' The petition further alleged that the ordinance of the City of Austell makes specific provisions for the issuance of licenses for the conducting of businesses, including those of the petitioners, within the city, and also provides the exclusive lawful method for the revocation of such business licenses within the city, section 2 of the said ordinance providing as follows: 'The following special tax ordinance shall be adopted annually to become effective on the first of February each year and extending to the last day of January of each year. The amount of taxes to be paid by each of the businesses hereinafter set forth shall be set at the first annual meeting of each year by the mayor and council: Section A. That on and after the frist of February, 1930, it shall be unlawful for any person or persons, corporation, or company, to begin or carry on any of the occupations or business hereinafter mentioned in the City of Austell without first applying to the clerk and obtaining from him a license for carrying on said business or occupation for the year 1931. Section B. Be it further enacted by the authority aforesaid that it shall be the duty of the clerk of said city of Austell upon the payment to him of the prescribed fee to issue said license. Provided, however, that a license may be revoked by the mayor for cause any time during the year. * * * Section F. Be it further ordained by the authority aforesaid that the mayor of the city shall have the right to revoke any license under this ordinance whenever a person doing business under such license shall violate any law or ordinance of the United States, or of the State of Georgia or of the City of Austell, in pursuance of such business conducted under such license, or when it shall be proven before the mayor that the health, morals, interest, and convenience of the public demand the revocation of such license, or the person, firm, or corporation holding such license was issued, and said mayor shall report his revocation of such license to the next regular meeting of the city council for their ratification or rejection, and should the action of the mayor be sustained by the council, then the said license shall be permanently revoked, otherwise it shall be restored and remain in full force.'

The petition alleged that Charlie Owens and T. N. Compton were respectively issued licenses to operate their said business within the City of Austell for the calendar year 1945 in January, 1945, and paid the annual amount fixed by the city for each of said licenses in the amount of $750. The petitioners Charlie Owens and E. E. Stone were issued a joint license by the said city in March, 1945, for the operation of their said business of selling at retail within the said city distilled spirits and alcoholic beverages for the calendar year 1945, and paid to the said city the prescribed fee for the said license, to wit, the sum of $750. The mayor of Austell has never purported or undertaken to revoke said business licenses heretofore issued to the petitioners as aforesaid, and the described action by the defendants, acting in their official capacity as the general council of the City of Austell is null and void, ultra vires, and totally unauthorized by law. Notwithstanding the fact that such attempted action on the part of the defendants is contrary to law, each of the petitioners has received what purports to be an official notification from the clerk of the City of Austell, Georgia, of such purported revocation of the petitioners' said licenses in the language set forth in the attached notice to the petitioner T. N. Compton, which attached notice is marked exhibit 'B' and made a part of the petition. The exhibit of notice, dated June 5, 1945, reads as follows: 'Your retail liquor license has been revoked by the mayor and city council at a special meeting of May 17, 1945. You will be given until June 30, 1945, inc. to dispose of your stock. You will be reimbursed, proration [sic], for your liquor license for the remainder of the year after June 30, 1945.'

The petition alleged that the said proposed action on the part of the defendants is contrary to law and constitutes an attempted deprivation of the petitioners' rights and privileges under article 1, section 1, paragraph 3, of the constitution of Georgia, as well as the fourteenth amendment of the constitution of the United States, in that such action is an attempted deprivation of the petitioners' lawfully established business and property without due process of law. Such proposed action is purported and attempted local legislation inconsistent with and directly in connflict with the general law of Georgia as expressed in the statute hereinbefore cited and dealing completely with the subject matter of licensing, controlling the sale and distribution of alcoholic beverages and liquors within the State of Georgia and is specifically violative of article 1, section 4, paragraph 1, of the constitution of Georgia, which declares in part: 'Laws of a general nature shall have uniform operation throughout the State, and no special law shall be enacted in any case for which provision has been made by an existing general law.' The defendants, acting in their official capacity as representing the City of Austell, Georgia, and pursuant to section 2 of said ordinance, fixed the amount of license fee, at the first annual meeting of the mayor...