Woodward v. City of Lithonia

• Decision Date: 19 October 1940
• Docket Number: 13415.
• Citation: 11 S.E.2d 476,191 Ga. 234
• Parties: WOODWARD v. CITY OF LITHONIA et al.
• Court: Georgia Supreme Court

11 S.E.2d 476

191 Ga. 234

WOODWARD v. CITY OF LITHONIA et al.

No. 13415.

Supreme Court of Georgia

October 19, 1940

Rehearing Denied Nov. 20, 1940.

On May 6, 1940, a municipal ordinance was adopted which declared:

'Whereas the operation of pin-ball machines and similar machines encourages gaming and the general disorder incident thereto and is a threat and menace to the peace and morals of the community; and wherease the operation of said machines has become and does now constitute a nuisance and encourages idling and loitering: Be it ordained by the Mayor and General Council of the City of Lithonia, as follows:

'Section 1. That from and after May 10, 1940, it shall be unlawful for any person, firm, or corporation to own, maintain, or operate any pin-ball machine or similar machine, including all machines operated by depositing a coin therein for the playing of a game or the engaging in of any contest of chance or skill.

'Section 2. The provisions of this ordinance shall not apply to machines owned and operated exclusively for the sale of merchandise, where neither the element of chance nor skill is involved.

'Section 3. That any person convicted of a violation of this ordinance shall be subject to a fine not to exceed two hundred (200.00) dollars and a sentence to the public works of said city for a period not to exceed ninety (90) days, any part of either one or both in the discretion of the mayor.

'Section 4. All ordinances and parts of ordinances in conflict with this ordinance are hereby repealed.'

On May 10, the day the ordinance became effective, the chief of police arrested C. D. Austin, charging him with a violation of the ordinance. On May 11 Austin was again arrested charged with another violation, and was told that the police would continue to make an arrest for each day he operated or maintained such machine within the corporate limits of the city. Austin, who had leased the machine from J. R. Woodward the plaintiff, thereupon canceled his lease contract, and directed the owner to remove the machine. On May 14 Woodward trading as Woodward Amusement Company, instituted an action seeking to enjoin the city from enforcing the ordinance, on the grounds: (a) It is unreasonable in that it proceeds to prohibit the owners of such machines their rights to engage in a lawful and legitimate business within the corporate limits of the city. (b) It is ultra vires and beyond the charter powers of the city. (c) It is an infringement on the right of petitioner to contract, and therefore is violative of article 1, section 3, paragraph 2, of the constitution of Georgia (Const. art. 1, § 3, par. 2, Code, § 2-302), which provides: 'No bill of attainder, ex post facto law retroactive law, or law impairing the obligation of contracts, or making irrevocable grant of special privileges or immunities, shall be passed,' because the ordinance imapirs the contractual powers of petitioner and imposes a limitation upon his power to make contracts. (d) It is violative of article 1, section 10, clause 1, of the Federal constitution (Code, § 1-134), which provides that 'No State shall * * * pass any * * * Law impairing the Obligation of Contracts, or grant any Title of Nobility.' (e) It is violative of the fourteenth amendment to the Federal constitution (Code, § 1-815), providing that no State shall deprive any person of life, liberty, or property, without due process of law. (f) It is violative of article 1, section 1, paragraph 2, of the constitution of Georgia (Code § 2-102), declaring that 'Protection to person and property is the paramount duty of government, and shall be impartial and complete,' because the ordinance is discriminatory and is not impartial, in that other novelty games and games of skill are not included in the ordinance. (g) It is discriminatory, because its effect is to completely destroy and confiscate the business and property of petitioner, which is that of distributing and leasing novelty machines used for pleasure and skill only, whereas other articles of pleasure and skill such as baseball, marbles, playing cards, dice, checkers, golf balls, and golf sticks, and articles of like nature, are not included in the ordinance, whereas all of the articles herein enumerated are used for the pleasure and skill of the citizens of the city. It was further alleged, that it is impossible for petitioner to secure another lessee for the operation of said machine within the corporate limits of Lithonia, because of the passage of the ordinance and because of the arrests as aforesaid; that the passage of the ordinance, with the...