Clein v. City of Atlanta

Hines, J.

(After stating the foregoing facts.)

Does the petition set forth a cause of action against the individual defendants ? The case against these defendants is based upon the existence of an alleged conspiracy between them in procuring and in seeking to have enforced against petitioners, with the purpose of driving them out of business, the ordinance which is set out in the statement of facts, and which petitioners allege to be without the competency of the mayor and general council of the City of Atlanta to pass, as well as unreasonable and unconstitutional. If the mayor and general council of the city possessed the power to pass said ordinance, and if it is not unreasonable, unconstitutional, or void, it is clear that no cause of action is set out against the individual defendants or against the City of Atlanta. A conspiracy is a combination either to accomplish an unlawful end, or to accomplish a lawful end by unlawful means. Brown v. Jacobs’ Pharmacy Co., 115 Ga. 429 (41 S. E. 553, 57 L. R. A. 547, 90 Am. St. R. 126). It is well settled that in an action on the case for conspiracy, the conspiracy per se is not the gravamen of the charge, but may be both pleaded and proved as aggravating the wrong of which the plaintiff complains, and enabling him to recover in one action against all as joint tort-feasors. Woodruff v. Hughes, 2 Ga. App. 361 (58 S. E. 551); National Bank of Savannah v. Evans, 149 Ga. 67 (99 S. E. 123). So it follows that if the individual defendants combined to procure and have enforced this ordinance, they would not be liable merely on account of the conspiracy, but would only be liable for some wrong done the petitioners in pursuance of the conspiracy. It further follows that if this ordinance is not ultra vires, is not unreasonable, or unconstitutional, or void for any reason, the defendants would not commit any tort in procuring its passage and in seeking to enforce it. Every person has the right to press and procure by proper means the enactment of legislation, either State or municipal; and when enacted, every person can use legitimate means to enforce such legislation. We shall undertake to show, in dealing with this action against the city, that this ordinance is not ultra vires, is not unreasonable, and is not unconstitutional or void upon the grounds on which petitioners attack it. Therefore the petition sets forth no cause of action against the individual defendants, and the trial judge properly sustained their demurrer.

Does the petition set forth any cause of action against the City of Atlanta? Petitioners seek to enjoin this ordinance upon the grounds, (a) that the mayor and general council of the City of Atlanta were without power to enact it, (b) that it is unreasonable, and (c) that it is unconstitutional because it violates the due-process clauses of the Federal and State constitutions. The mayor and general council of the City of Atlanta are clothed with authority, under the police power of the city, to pass an ordinance regulating the business of auctioneers of jewelry, and such an ordinance would not be an unjustified regulation of and interference with the business of petitioners, on account of lack of power in the governing authorities of the city to pass it. Clein v. Atlanta, 159 Ga. 121 (124 S. E. 882). Lawful trades or businesses are subject to regulation under the police power vested in the City of Atlanta. What such regulations shall be, and to what particular trade, business, or occupation this will apply, are questions for .the city to determine. Their determination comes within the proper exercise of its police power; and unless the regulations are so utterly unreasonable and extravagant that the property and personal rights of the citizens are unnecessarily, and in a manner wholly arbitrary, interfered with or destroyed without due process of law, they do not exceed the limits of the police power of the city to pass. Shurman v. Atlanta, 148 Ga. 1, 11 (95 S. E. 698). Is this ordinance unreasonable? Petitioners assert that its unreasonableness consists in the fact that it imposes harsh and inequitable terms upon those engaged in the business of auctioning jewelry; that the city can no more prohibit the business of dealing-in jewelry and allied articles at auction than it can prohibit the dealing in any other article; that it is no more improper to sell such articles at'auction than to sell them at private sale; and that no reason exists which makes it any more improper to sell jewelry at night than to sell it in the daytime. We have seen above that the mayor and general council of the City of Atlanta are clothed with authority, under the police power of the city, to pass an ordinance regulating the business of auctioneers of jewelry. This power involves the right of classification. While it is perfectly legal to auction jewelry, the city can regulate that business, and leave unregulated jewelry dealers who sell at private sale. So the ordinance is not unreasonable upon the ground that it discriminates against those engaged in auctioning jewelry, and in favor of dealers in jewelry who sell at private sale. .

Does this ordinance impose harsh and inequitable terms upon those engaged in the business of auctioning jewelry? By its first section it prohibits the offering for sale or selling of certain articles between the hours of six o’clock p. m. and six o’clock a. m. We can not say that this feature of the ordinance is so arbitrary and such an unlawful interference with the business of petitioners as to be unreasonable. In Jenkins v. State, 119 Ga. 430 (46 S. E. 629), this court held that “It was within the province of the General Assembly of this State, in the exercise of its police powers, ‘to make it unlawful to transport seed-cotton in or from the county of Harris, or from one place to another in said county, between the hours of sunset and sunrise, except wlien carried from the field where picked to the place of storage on the premises of .the owner, and to prescribe a penalty for the violation’ ” of the act containing these provisions. In Bazemore v. State, 121 Ga. 619 (49 S. E. 701), this court declared, that, “Under the police power, laws may be passed for regulating common occupations which from their nature afford peculiar opportunity for imposition- and fraud.” In that case the court was dealing with an act which prohibited the sale of seed-cotton between the 1st of August and the 20th of December in each year. As we have seen, the regulation of the business of jewelry auctioneers falls within the police power of the city. This power is very broad. Jackson v. Beavers, 156 Ga. 71, 75 (118 S. E. 751). In Biddles v. Enright, 239 N. Y. 354 (146 N. E. 625), the New York Court of Appeals held that a statute forbidding auction sales at night in large cities had such relation to the peace, safety, and protection of citizens as to come within the police power. In People v. Weller, 237 N. Y. 316 (143 N. E. 205, 38 A. L. R. 613), the New York Court of Appeals held that a statute forbidding auction sales at night was a reasonable effort to insure fair public sales, to prevent fraud and deception, and to protect purchasers from the dangers lurking in the darkness of the night, and was not such arbitrary legislation as to be unconstitutional. The cases cited deal with statutes regulating the sale of jewelry at auction. While this is so, they throw light upon the question which we now have under consideration. A municipality is a minor State. City of Atlanta v. Holliday, 96 Ga. 546, 553 (23 S. E. 509). In Gilham v. Wells, 64 Ga. 192, this court held that the authorities of the town of Stone Mountain, though having power by charter to grant or withhold licenses to retail liquor, and to establish police regulations generally, could not, after granting a license, and while retaining the fee paid for the same, pass an ordinance requiring all retailers to close doors and forbear to sell whilst, and at all times when, “any denomination of Christian people” are holding divine service anywhere in the town, the ordinance being silent as to any and all other worshippers. The invalidity of this ordinance was apparently put upon its discrimination in favor of the denominations of Christian people as against any and all other worshippers. We may remark that this decision was rendered when intoxicating liquors were in better repute than they now are.

In Watson v. Thompson, 116 Ga. 546 (42 S. E. 747, 59 L. R. A. 602, 94 Am. St. R. 137), it was decided that “A municipal corporation can not, under the general welfare clause usually found in municipal charters, prohibit one from carrying on a lawful vocation on Christmas day, when there is nothing in the character of the business carried on which is calculated to interfere with the peace, good order, and safety of the community.” The ordinance dealt with in that case prohibited the carrying on of a lawful vocation on Christmas day, both in the daytime and nighttime. In Morris v. Rome, 10 Ga. 532, an ordinance prohibiting the retail of spirituous liquors by those to whom licenses had been granted, within the City of Eome, after the hour of ten o’clock at night, was held not to essentially impair the right to retail under the license granted, but was only a regulation of the exercise of it for the benefit of the peace, order, and good government of the city. In Sanders v. Elberton, 50 Ga. 178, it was decided that a town council, having power to license and regulate the sale of spirituous liquors, could legally, in issuing a license, confine the sale of liquor to a particular room in a house. In Badkins v. Robinson, 53 Ga. 613, this court upheld the validity and reasonableness of an ordinance which prohibited the sale by retail of fresh meats and vegetables during market hours at any other place than the market-house. In Rothschild v. Darien, 69 Ga. 503, an ordinance making it penal to “open any store for -the sale of merchandise of any kind or sort, works of necessity, etc., excepted,” on the Sabbath day, was held not covered by the State law, and a valid ordinance which could bo enforced. In Braddy v. Milledgeville, 74 Ga. 516 (58 Am. R. 443), an ordinance prohibiting disreputable women from standing Or loitering about the streets or stores at night, unless on unavoidable business, was held to be “a police regulation within the power of the municipal authorities to make.” In Manor v. Bainbridge, 136 Ga. 777 (71 S. E. 1101), an ordinance prescribing the territory within which “near beer” could be sold, and making it unlawful to sell that article without such territory in the city limits, was held to be reasonable. In Holsman v. Thomas, 112 Ohio St. 397 (147 N. E. 750), an ordinance providing that no jewelry should be sold at auction for a period greater than sixty days in one year, and that the auctioneer must have been a resident of the municipality for one year, and must have had a regular stock of jewelry for six months of that year, was held to be reasonable and valid. In City of Roanoke v. Fisher, 137 Va. 75 (119 S. E. 259), it was held that an ordinance prohibiting auctioneers of jewelry from conducting such business between the hours of six p. m. and eight a. m. was not unreasonable. In City of Buffalo v. Marion, 34 N. Y. Supp. 945 (13 Misc. 639), an ordinance prohibiting the auctioning of watches after 6 o’clock p. m. was held valid. The legislature has undertaken to prohibit the sale of jewelry at auction, by the act of 1925, supra.

It is true that the authority to a municipality to regulate does not confer the power to prohibit entirely. Purvis v. Ocilla, 149 Ga. 771 (102 S. E. 241). We think this is a sound principle and should not be departed from, although there is respectable authority to the effect that an ordinance authorizing the licensing of auctioneers, but forbidding the sale at auction of jewelry or watches, was valid. State v. Bates, 101 Minn. 301 (112 N. W. 67); Mogul v. Gaither, 142 Md. 380 (121 Atl. 32). Counsel for plaintiffs in error rely upon Hayes v. Appleton, 24 Wis. 542, and People v. Gibbs, 186 Mich. 127 (152 N. W. 1053, Ann. Cas. 1917B, 830). In those cases the statutes involved prohibited all auctions at night.' So we are of the opinion that the provision of this ordinance prohibiting the sale of jewelry at auction between- 6 o’clock p. m. and 6 o’clock a. m. is not unreasonable on the ground that it prohibits the sale of jewelry at auction. This provision is not such an impairment of the right to conduct this business as amounts to an absolute prohibition of the business. As the sale of jewelry at night affords opportunity for fraud and imposition upon the buyers, we can not say that the prohibition against conducting this business at night is unreasonable.

Is the requirement that an auctioneer shall give bond in the sum of $5,000, payable to the city, and conditioned to pay the city or any one suing in its name for their use, any damages sustained on account of the dishonest or fraudulent conduct of said business, arbitrary and unreasonable ? In Hazleton v. Atlanta, 144 Ga. 775 (87 S. E. 1043), this court was dealing with an ordinance regulating the licensing and operation of jitneys or jitney-buses within the city. The ordinance declared that it was unlawful for any person to act as driver of any motor-bus without complying with certain requirements, one of which was that each person, firm, or corporation operating any such bus should, before the same was placed in operation, file with the city clerk an indemnity bond in the sum of $5,000 for each vehicle, conditioned for the payment of any damages sustained by any person or property, caused by the operation of any such vehicle,-for which the owner would be liable under the laws of this State. A majority of this court held in that case that this requirement was not unreasonable and oppressive as to the amount thereof. In Shurman v. Atlanta, supra, this court was dealing with an ordinance regulating the business of junk-dealers, and requiring each junk-dealer to execute a bond in the sum of $1000, payable to the city, conditioned to pay the city, or any one suing in its name, for damages sustained on account of dishonest, fraudulent, immoral, or improper conduct of the administration of the business of the junk-dealer. The majority of this court held that this provision as to the bond was not unreasonable, and did not arbitrarily discriminate against the class of junk-dealers embraced in said ordinance. By like logic and reasoning, we can not'say that this' requirement of a bond is unreasonable. Auctioneers are often transient persons. Sometimes they are irresponsible financially. Purchasers at auction sales, who are damaged by fraud of the auctioneers, would for these and other reasons be left remediless. In People v. Grant, 126 N. Y. 473 (27 N. E. 964), a statute requiring auctioneers to obtain license and to give bond was held reasonable and valid. The other provisions of this ordinance do not seem to be so arbitrary and unreasonable as to authorize us to declare this ordinance to be invalid.

In view of what has been said above, we do not think that this ordinance violates the due-process clauses of the Federal and State constitutions. It does not deprive petitioners of their property without due process of law, and does not deny to them the equal protection of the law. It applies to all auctioneers of jewelry. It was competent for the mayor and general council of the City of Atlanta to make this classification, and to pass reasonable regulations governing the conduct of this business. The Supreme Court of the United States has many times affirmed the general proposition that it is not the purpose of the fourteenth amendment, in the equal-protection clause, to take from the States the right and power to classify the subjects -of legislation. It is only when such attempted classification is arbitrary and unreasonable that the court can declare it beyond the legislative authority. That a law may work hardship and inequality is not enough. Many valid laws and ordinances, from the generality of their application, necessarily have that effect. Necessarily the legislature or municipality must be allowed a wide field of choice in determining the subject-matter of laws and ordinances. Jeffrey Mfg. Co. v. Blagg, 235 U. S. 571 (35 Sup. Ct. 167, 59 L. ed. 364). It is only where the legislative or municipal action is arbitrary and has no reasonable relation to. a purpose which it is competent for government to effect, that the legislature or municipality transcends the limits of their power. Where there is reasonable relation to an object within the governmental authority, the exercise of legislative or municipal discretion is not subject to judicial review. Chicago etc. R. Co. v. McGuire, 219 U. S. 549 (31 Sup. Ct. 259, 55 L. ed. 328). In Baccus v. Louisiana, 232 U. S. 334 (34 Sup. Ct. 439, 58 L. ed. 627),-the Supreme Court of the United States held that the State had the power to prohibit sales by itinerant vendors of any drug, nostrum, ointment, or application of any kind intended for the treatment of any disease or injury, while allowing 'the sale of such articles by other persons. This being so, we can not hold that this ordinance violates the due-process clauses of the Federal and State constitutions, in that it denies to petitioners the equal protection of its laws, or deprives them of their property without due process of law. City of Roanoke v. Fisher, supra; Shurman v. Atlanta, supra; Gundling v. Chicago, 177 U. S. 183 (20 Sup. Ct. 633, 44 L. ed. 725); Biddles v. Enright, supra.

It is strenuously urged by counsel for the plaintiffs that the individual defendants pressed and procured the passage of this ordinance with sinister and evil motives. They assert that the purpose of the defendants was to stifle competition, and to drive plaintiffs and other auctioneers out of the business of auctioneering jewelry and allied articles. It is further alleged that these defendants formed an association to accomplish these,selfish purposes, and that they overawed the mayor and general council of the City of Atlanta, and forced this body, in fear of the power exerted by it, to pass this ordinance. The courts can not inquire into the motive of the defendants in pressing and procuring the enactment of this ordinance, or of the mayor and general council of Atlanta in enacting the same; nor can they set the same aside, if it is not arbitrary and unreasonable, is not ultra vires, or is not unconstitutional. Puckett v. Young, 112 Ga. 578, 582 (37 S. E. 880); People v. Gibbs, supra; Gardner v. Bluffton, 173 Ind. 454 (90 N. E. 898, Ann. Cas. 1912A, 713); 7 McQuillin, Municipal Corporations, § 732. Judgment affirmed.

All the Justices concur.