Shurman v. City of Atlanta , 148 Ga. 1 ( 1918 )

Hill, J.

(After stating the foregoing facts.)

1. The plaintiffs seek to have the ordinance just set out enjoined on the ground that it is unreasonable and void as a whole, and that certain sections thereof are void for reasons which will now' be considered either generally or in detail. It is insisted that the court erred in not holding that the provisions of section 6 of the ordinance are unreasonable, arbitrary, unduly discriminatory, and that they deprive them of their liberty of action and contract and of the right to acquire property, and deny them due process of law and equal protection of the laws, in violation of the fourteenth amendment of the constitution of the United States. The evidence in the record shows that prior to the adoption of the ordinance vacant houses in the City of Atlanta were systematically robbed of plumbing and other fixtures; that such houses were practically dismantled by thieves who secured the plumbing, building hardware, gas and electric-light fixtures, metals and brasses, and other articles covered by the ordinance, which they would sell to dealers in junk; that it was necessary to expend large sums of money to repair and restore such houses to their former condition in order to make them tenantable; and that these depredations were of almost daily occurrence. It was in this situation that the mayor and general council were petitioned by citizens of the city to adopt an ordinance which would remedy the evil complained of; and the present ordinance is the result.

Similar ordinances to the one now under review have been considered and passed upon by many courts of other jurisdictions. This court has never been called upon to decide whether a "junk ordinance” quite as drastic as the present one undoubtedly is can stand the legal assaults made upon it. Section 6 of the ordinance is the storm-center of attack, though the ordinance as a whole is assailed. It is argued that this section is arbitrary and unduly discriminatory; that it deprives the plaintiffs of liberty of action, and of the right to contract and to acquire property; and that it deprives them of due process of law and of the equal protection of the laws. A municipality has the authority to place reasonable and necessary regulations on vocations or businesses which come within the proper exercise of the police power. The ordinance here assailed does not prohibit buying, gathering, dealing in, or selling junk of the kinds enumerated, but it provides the manner in which this shall be done; and unless it offends some constitutional right or legal principle applicable, it will be held to be a valid exercise of the police power. It does not follow that, because by enforcing such ordinance a junk dealer may be somewhat injured in his business, this deprives the city of its right to a proper exercise of the police power. City of Cartersville v. McGinnis, 142 Ga. 71 (82 S. E. 487, Ann. Cas. 1915D, 1067).

The present ordinance seems to be in some respects similar to a junk ordinance of the City of Anniston, Ala., which was under review in the case of Levi v. Anniston, 155 Ala. 149 (46 So. 237). From the report of that case it appears that the ordinance required a certificate from the chief of police as to the amount, description, of goods, etc., and the name of the seller, and upon these things being made to' appear a license to purchase the junk would be issued by that official. The ordinance was held valid by the Supreme Court of Alabama, as against the objection that it exempted persons and corporations engaged in the manufacture of brass goods, pig iron, east-iron pipe, etc. And see Soon Hing v. Crowley, 113 U. S. 703, 708-709 (5 Sup. Ct. 730, 28 L. ed. 1145). In Grossman v. Indianapolis, 173 Ind. 157 (88 N. E. 945, 89 N. E. 862), the city was authorized to tax persons dealing in junk; and the ordinance required a license, and a record to be kept of the purchases, showing the prices_ paid, the time of the purchase, the name, residence, age, color, height, weight, complexion, and style of dress and beard of the seller, and a- holding of the junk for 48 hours before reselling, etc. These regulations were held to be a valid exercise of the police power, and not unreasonable. In the case of Gundling v. Chicago, 177 U. S. 183, 188 (20 Sup. Ct. 633, 44 L. ed. 725), it was said: “Regulations respecting the pursuit of a lawful trade or business are of very frequent occurrence in the various cities of the country, and what such regulations shall be. and to what particular trade, business, or occupation they shall apply, are questions for the State to determine, and their determination comes within the proper exercise of the police power of the State; and unless the regulations are so utterly unreasonable and extravagant in their nature and purpose that the property and personal rights of the citizen are unnecessarily, and in a manner wholly arbitrary, interfered with or destroyed without due process of law, they do not extend beyond the power of the State to pass, and they form no subject for Federal interference.” In Rosenthal v. New York, 226 U. S. 260 (33 Sup. Ct. 27, 57 L. ed. 212, Ann. Cas. 1914B, 71), it was held: “A State may, in the exercise of the police power, classify separately particular kinds of personal property which' the legislature considers more susceptible of theft than other property. It is not unreasonable or arbitrary to require dealers in junk to make diligent inquiry to ascertain that persons selling to them wire cable, iron, etc., belonging to railroad compánies, have a legal right to do so. Dealers who provide an important and separate market for a particular class of stolen goods may be put in a class by themselves; and so as to dealers in junk.” In the opinion of the court, rendered by Mr. Justice Pitney, it was said: “Nor can the act in question be deemed to conflict with the ‘equal-protection’ clause because it places junk dealers, etc., in a class by themselves.” See McQuillin on Mun. Cor. § 193. It is argued that under the section of the ordinance now being considered no junk dealer, junk buyer, or junk gatherer, or a person owning a house, and who desires to buy articles enumerated in the section, can receive or possess them without first notifying the chief of.police of the City of Atlanta in writing of the intention to purchase them, giving the name of the seller, a full description of the material to be purchased, the address of the seller, the location of the material to be purchased, with the house and street address, the price to be paid for such article, and receiving from the chief of police a written certificate that such articles have been inspected, etc. These requirements are not more drastic than some of the ordinances which have been upheld by the courts of other jurisdictions as being a proper, exercise of the police power. It would indeed be strange if the city could not adopt an ordinance which would protect its citizens from the thieves who rob their houses for the purpose of selling their loot to junk dealers, even though the business of the junk dealers in buying the stolen articles may be somewhat affected thereby. One purpose of the police power is to" protect the' citizens in their property from those who would deprive them of it, not only without “due process of law,” but contrary to law; and it can not be said, in view of the authorities above cited, and others not cited, that the section of the ordinance under review is open to the objections urged against it. What has been said applies to the ordinance in so far as it relates to dealers, buyers, etc., of junk when dealing with the enumerated articles in connection with the business in which they are engaged. It would be a strained construction of the ordinance to hold that •it would apply to individual purchases made for the purpose of supplying some needed personal use of the buyer, as when building a house for himself and purchasing the necessary articles in the usual manner for that purpose, or articles needed for the repair of his own automobile, and similar cases, even though articles so purchased and used might be among those classified in the act. The purpose of the act was to regulate the handling of the articles referred to in connection with the business of junk dealer, junk buyer, etc., as such. See generally, on the subject of statutory regulation of junk dealers and junk shops, note to Weadock v. Judge, 16 Ann. Cas. 720, 722 (156 Mich. 376, 120 N. W. 991, 132 Am. St. R. 527), and note to Commonwealth v. Maletsky, 24 L. R. A. (N. S.), 1168 (203 Mass. 241, 89 N. E. 245).

2. Error is assigned because the court did not hold that sections 10, 11; 13, 16, 17, 23, 24, 26, and 29, as & whole, are arbitrary, unreasonable, and deny to the plaintiffs due process of law and the equal protection of the laws as guaranteed by the fourteenth amendment to the constitution of the United States. We think what has been said in the preceding division of this opinion, on the proper exercise of the police power, answers the objection urged against these sections of the ordinance; and we hold that the court did not err in not holding them invalid for any of the reasons assigned.

3. Section 14 of the ordinance provides that it shall be unlawful for any common carrier to knowingly receive or accept for delivery from any junk dealer, junk peddler, junk buyer, or junk gatherer, or any agent, servant, or employee of such persons, any junk covered by the ordinance, purchased by the dealer, etc., for shipment or consignment, unless the same is "tagged” as provided by the ordinance. It is insisted that this section is unreasonable and illegal, because the mayor and general council have no authority to enact such ordinance, and because it is in conflict with section 2634 of the Civil Code of 1910, which vests in the railroad commission power to make and enforce such reasonable rules as may be necessary in order to compel and require the several railroad companies of this State to promptly receive, receipt for, forward, and deliver to destination all freight which may be tendered or received by them for transportation. And further, because it is in violation of storage rule 10 of the railroad commission of Georgia, which provides that whenever freight of any character,proper for transportation, whether in car-load quantities or less, is tendered to a railroad company at its customary place for receiving shipments, and correct shipping instructions are given, such railroad company shall immediately receive the same and issue bills of lading therefor. While it is alleged and argued that the railroad commission has such rule as above indicated, there is nothing in the record to show that such is the fact; and it is incumbent on the party asserting it to show that the railroad commission has exercised the authority conferred'on it and has made such rule, and the plaintiffs in error have not done that. This court can not.take judicial cognizance of the fact that the commission has or has not adopted such a rule. Wadley. Southern Ry. Co. v. State, 137 Ga. 497, 503 (73 S. E. 741).

4. Section 17 of the ordinance provides that each applicant for license to do business as a junk dealer shall execute a bond payable to the city in the sum of $1,000, and shall pay an occupation tax of $300 per year; and that each applicant to do business as a junk peddler, junk buyer, or junk gatherer shall each execute a bond in the sum of $250 payable to the city, and pay an occupation tax of $50 per year; all.and each of said taxes to be payable annually in advance. Error is assigned because the court declined to rule that such ordinance is unreasonable and arbitrarily discriminates against the plaintiffs, and exceeds the power of the city to impose an occupation tax. We can not say, as a matter of law, that the amounts so fixed are unreasonable or arbitrary, or that the ordinance denies to the plaintiffs due process of law and equal protection of the laws, or that it discriminates against them. See Hazleton v. Atlanta, 144 Ga. 775 (87 S. E. 1043); City of Grand Rapids v. Braudy, 32 L. R. A. 116 (6), and note (105 Mich. 670, 64 N. W. 29, 55 Am. St. R. 472). Such ordinance is not open to the objection that it places a double tax on junk dealers who are also junk gatherers, buyers, etc., because there is one tax on "dealers” and another tax on "gatherers, buyers,” etc. The businesses have been reasonably classified, and the taxes are imposed on the different classes of business; and if one person conducts two or more kinds of business so classified, he is liable to an occupation tax on each business conducted. Ray v. Tallapoosa, 142 Ga. 799 (83 S. E. 938).

5. The ordinance is not arbitrary and unreasonable as depriving minors of “a clear right” of engaging in any business with the consent of their parents) or without such consent if the parents be dead, because it forbids such dealers to employ any minor under the age of 21 years to work in his junk yard, or on a junk wagon, or as an apprentice, or in any capacity in connection with the junk business, nor because the ordinance prevents the buying or receiving of junk from minors under the age of 18 years. It is the policy of the law to protect minors from temptations which may endanger their health or morals, or from employment which deprives them of an education. Our law prohibits the employment of minors under the age of 14 years in any mill, factory, laundry, manufacturing establishment, of place of amusement. Acts 1914, p. 88. It prohibits any owner or person controlling a' billiard-table, pool-table, or ten-pin alley from permitting any minor to play or roll on the same, without the consent of the parent or guardian. Penal Code, § 406. It prohibits the furnishing of cigarettes, cigarette tobacco, cigarette paper, or any substitute therefor to a minor, under penalty. Penal Code, § 491. It prohibits the sale of liquor to minors. Penal Code, § 444. It prohibits the sale or -furnishing to any minor of a pistol, dirk, bowie-knife, or sword-cane, except under circumstances justifying their use in defending life, limb, or property. Penal Code, § 350. Any person keeping a table, or dealing a game, who shall permit a minor to play and bet thereat, or any person of full age who shall gamble with a minor at certain specified games of cards, is guilty of a misdemeanor. Penal Code, § 393. These are but a few instances in which the law throws its protecting shield around minors in order that their morals may not be corrupted ere they reach manhood’s estate when they have more discretion and are stronger in character than they would otherwise have been had all kinds of temptations been permitted to be thrown around them. See Freund on Police Power, § 259 et seq.; Arthur v. State, 146 Ga. 827, 832 (92 S. E. 637), and authorities cited; Jaques & Tinsley Co. v. Carstarphen Co., 131 Ga. 1 (62 S. E. 82); Kidd &c. Co. v. Musselman, 217 U. S. 461 (30 Sup. Ct. 606, 54 L. ed. 839). We may add, in answer to the assignment of error that the plaintiffs are not permitted to contract with minors under 18 years of age, that the general rule is that a contract made with a minor under 21 years of age is void. Civil Code (1910), § 4233. None of the above statutes, so far as we are aware, have ever been declared illegal or void for any of the reasons here assigned. They declare a sound public policy, and should be upheld by the courts.

6. The ordinance is not invalid because the license to be issued to a junk dealer under it is required to have printed, stamped, or written upon it as a part thereof, “that same shall be revoked, ipso facto, in case of conviction in the recorder’s court,, either of the applicant or any of his servants, agents, or employees, on account of a conviction for violation of any of the provisions of this 'ordinance [or] of the State law against buying and receiving stolen property.” Such regulation, properly construed, means that the license can be forfeited only for cause. See Cassidy v. Macon, 133 Ga. 689 (2), 690 (66 S. E. 941).

7. An ordinance which makes it unlawful for any junk dealer, etc., to melt, cut, mash, or disfigure any junk or material such as is described in section 13 of the ordinance, purchased by him, until the lapse of ten days from the inspection thereof, “provided that the chief of police shall have power to shorten the time hereinafter provided, in cases of emergency, when he shall have reasonable cause to believe that said material is not stolen property and has been acquired in good faith and without any violation of any law of the State of Georgia or of' the City of Atlanta,” is not open to the objection that it is arbitrary and unreasonable, and denies to the plaintiffs due process of law and the equal protection of the laws. Nor is the ordinance or any part thereof invalid for any other reason assigned; and the court did not err in denying an injunction.

Judgment affirmed.

All the Justices concur, except Fish, C. J., absent, and Beck, P. J., who dissents from the ruling in the sixth division of the opinion.