City Council v. Sanders , 164 Ga. 235 ( 1927 )

Atkinson, J.

1. The act approved December 17, 1896 (Acts 1896, p. 119), amending the charter of the City of Augusta, confers express authority to require by ordinance payment of a “license tax upon any occupation, trade, or business followed or carried on within the corporate limits of the city,” except such as are “taxed exclusively by the State,” whether or not, the person carrying on the business “resides within said city limits.” But neither the provisions of the general welfare clause as contained* in section 3 of the original charter of the city, assented to January 31, 1798 (Marbury & Crawford’s [1802] Digest of the Laws of Georgia, 136), nor the conference of powers as expressed in sections 1 and 4 of the amendatory act approved August 15, 1922 (Acts 1922, p. 537), expressly or by necessary implication confer authority to refuse to grant a license to pursue a useful and per se perfectly lawful occupation such as the keeping of. a meat market and grocery business, or, .having granted such a license, to arbitrarily revoke it.

2. As to a useful and per se perfectly lawful occupation, such as the keeping of a meat market and grocery business, the City of Augusta has no authority to arbitrarily revoke a business license which for the purpose of raising revenues it has granted to the proprietor thereof, nor has it authority to revoke such license by ex parte action upon the part of . . the officers of the city or the mayor and city council, on account of the manner in which the business is conducted. If, after a futile attempt to revoke a license of the character above mentioned, the city attempts to prevent the proprietor from carrying- on the business for which the license was issued, by continuously arresting him and prosecuting him for conducting the business without a license, equity will afford the proprietor a remedy by injunction. Peginis v. Atlanta, 132 Ga. 302 (63 S. E. 857, 35 L. R. A. (N. S.) 716) ; Brown v. Thomasville, 156 Ga. 260 (118 S. E. 854).

3. As the mayor and city council would have no charter authority to refuse a license of the character above mentioned, or, having issued a license, to revoke it, that body could not create such authority to revoke by provisions in the ordinance under which the license was issued, or in a pre-existing ordinance purporting to reserve the right to the city to revoke such license.

{a) A license of the character above mentioned is not revoked by the ■ mere act of a policeman, under direction of the mayor, in demanding and taking physical possession of the license certificate, and the subsequent ratification of such act by formal resolution of the city council.

4. Under application of the foregoing principles, the' judge did not err in overruling the general demurrer to the petition, or in granting a temporary injunction preventing- interference with the plaintiff in carrying on the business of conducting a meat market and grocery business under the license granted to him.

5. The mayor and city council did not attempt to abate the business as a nuisance, under the Civil Code (1910), § 5331, relating- to abatement of nuisances generally in cities having a population of twenty thousand pr more; or the place as a nuisance under the act approved December 19, 1899 (Acts 1899, p. 73, Civil Code (1910), § 5335), relating to abatement of “blind tiger” nuisances.

Injunctions, 32 C. J. p. 240, n. 51; p. 259, n. 9.

Licenses, 37 C. J. p. 187, n. 5; p. 238, n. 42; p. 240, n. 76; p. 247, n. 87, 88, 90, 91, 4; p. 248, n. 7; p. 262, n. 95.

Municipal Corporations, 28 Cyc. p. 745, n. 22; p. 748, n. 43.

No. 5626. May 3, 1927.

Judgment affirmed.

All the Justices concur. Archibald Blaclcshear, for plaintiffs in error. Peebles & Bowden, contra.