Summary
In Woodward v. City of Lithonia, 191 Ga. 234 (3) (11 S.E.2d 476) our Supreme Court dealt with a similar contention and ruled adversely to appellant's position.
Summary of this case from Page v. City of HapevilleOpinion
13415.
OCTOBER 19, 1940. REHEARING DENIED NOVEMBER 20, 1940.
Petition for injunction. Before Judge Pomeroy. DeKalb superior court. May 17, 1940.
Fraser, Irwin Latimer, for plaintiff.
H. O. Hubert Jr., for defendant.
J. C. Savage, J. C. Murphy, E. L. Sterne, and F. A. Hooper Jr., for persons at interest.
1. The general welfare clause of the charter of the City of Lithonia declared: "That the mayor and council of said City of Lithonia shall have the power and authority to pass all ordinances that they may consider necessary for the peace and good order, health, prosperity, comfort, and security of said city and the inhabitants thereof, and that they may deem necessary to foster and promote virtue and good morals of city; to suppress lewdness, gaming, and disorderly conduct, and to enforce such laws and ordinances by such penalties as are authorized in this charter." Ga. L. 1913, pp. 928, 955. The ordinance adopted on May 6, 1940, provided that "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." Held, that the adoption of the ordinance was within the charter power of the municipality.
2. The ordinance, having been authorized under the general welfare clause of the charter of the municipality enacted in pursuance of the police power of the State, is not violative of the due-process of law clauses of the Federal and State constitutions, for any reason assigned. Shaver v. Martin, 166 Ga. 424 (2) ( 143 S.E. 402); Murphy v. California, 225 U.S. 623 ( 32 Sup. Ct. 697, 56 L. ed. 1229, 41 L.R.A. (N.S.) 153). See Delaney v. Plunkett, 146 Ga. 547 ( 91 S.E. 561, L.R.A. 1917D, 926, Ann. Cas. 1917E, 685).
( a) Nor is the ordinance violative of the equal-protection clauses of the Federal and State constitutions, on the grounds "that said ordinance is discriminatory and is not impartial, in that other novelty games and games of skill are not included in said ordinance."
( b) Nor is the ordinance violative of the provisions of the Federal and State constitutions inhibiting the passage of laws impairing the obligation of contracts, in that it "impairs the contractual powers of petitioner, and imposes a limitation upon his power to make contracts."
3. The ordinance, being in the exercise of the police power and directed against gambling, immorality, and other injurious practices as declared by its provisions, is not void on the ground of unreasonableness, "because the effect of said ordinance is to completely destroy and confiscate the business and property of your 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 said ordinance, whereas all of the articles herein enumerated are used for the pleasure and skill of the citizens of the City of Lithonia."
( a) The petition does not complain of the ordinance upon the ground that it denies petitioner the right of mere ownership in the property itself, but the attack is limited to the complaint that it destroys plaintiff's right to lease such machines to others who would maintain and operate them in the city, and for that reason amounts to a confiscation of his property.
4. The judge did not err, on demurrer to the petition, in dismissing the action.
Judgment affirmed. All the Justices concur, except Duckworth, J., who dissents.
No. 13415. OCTOBER 19, 1940. REHEARING DENIED NOVEMBER 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 whereas 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 persons 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 (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 impairs the contractual powers of petitioner and imposes a limitation upon his power to make contracts. (d) It is violative of article 1, section 10, paragraph 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 arrest as aforesaid; that the passage of the ordinance, with the consequent result as hereinabove described, in effect confiscated without due process of law the property of petitioner, being said lease contract with Austin; that petitioner is without adequate remedy at law; and that unless equity will intervene in his behalf, he will suffer irreparable injury and damage.
The city interposed a demurrer on the grounds: (1) the petition does not set forth a cause of action; (2) it seeks to invoke the aid of a court of equity in construing and invalidating a penal ordinance, and court of equity will not aid in the administration of penal statutes; (3) the plaintiff has a full, complete, and adequate remedy at law to defend himself in the mayor's court of the city. The exception is to an order sustaining the demurrer and dismissing the action.