Brown v. City of Thomasville , 156 Ga. 260 ( 1923 )

Bussell, C. J.

(After stating the .foregoing facts.)

The first question raised by the brief and argument of counsel is whether the plaintiff should have proceeded to protect her rights by petition for mandamus rather than by injunction. It is well settled that as a general rule a court of equity will not restrain by injunction a threatened prosecution for a violation of .a municipal penal ordinance, nor in a proceeding for such injunction will it inquire into the validity-of the ordinance. Jones v. Carlton, 146 Ga. 1 (90 S. E. 278), Steinberg v. Savannah, 149 Ga. 69 (99 S. E. 36). However, there is an exception to this general rule, which is well recognized, to the effect that in’ eases where a threatened prosecution is apparently instituted and carried on for the purpose of unlawfully destroying one’s property or business,, or. for the purpose of preventing the exercise- of a business useful and lawful in and of itself, equity will enjoin a criminal prosécution. Peginis v. Atlanta, 132 Ga. 302 (supra), and cit. Of course as to particular eases the distinction between taxes imposed in the exercise of the police power and an occupation tax for revenue is always to be considered and borne in mind.

In the present ease it seems plain that the taxes of $25 for conducting a drug-store, $12.50 for operating a soda-fount, and $12.50 for dealing in cigarettes, are mere occupation taxes imposed solely for the purpose of raising revenue for the City of Thomas-ville. For this reason the ruling in the Peginis case, supra, applies in the instant case: " As to such occupations the municipal authorities are not vested with a discretion to grant or refuse licenses or to revoke such licenses at the will of the grantor. If such power were conceded to the city authorities, they might refuse to allow any dry-goods merchant, hardware dealer, hotel proprietor, confectioner, butcher, or baker to conduct his business, by simply refusing to issue him a business license, or might destroy his business at will, after its establishment, by revoking his license. No such arbitrary power is conferred on municipal councils or municipal authorities.” In the case before us it is alleged that the injunction is necessary, not only to prevent continued prosecutions, but to prevent the municipal authorities from closing the plaintiff’s store and destroying her business. In the fifteenth paragraph of the answer of the defendants, while denying that it is their intention to prosecute the plaintiff for each day that she carries on her business or that it is their purpose to force her to close her store, they admit that it is their intention and purpose to withhold from the plaintiff authority to further conduct the business in which she is engaged, and to prevent her from carrying it on any longer, because, as they insist, the business has previously been carried on in an unlawful manner. This admission, considered in connection with the notice given her by the city marshal, together with the fact that she had been prosecuted in the police court, clearly shows that it was the purpose of the mayor and council to force her out of business. In view of the facts as admitted and disclosed .in the present record, we are of the opinion that injunction was the appropriate remedy; for, as said in Mayor &c. of Shellman v. Saxon, 134 Ga. 29 (67 S. E. 438, 27 L. R. A. (N. S.) 452), "In some cases, involving special facts, injunction may be granted against the unlawful enforcement of municipal ordinances, although they are penal in character, for the protection of property or property rights or franchises against irreparable injury; as, for instance, where, under the guise of enforcing a penal ordinance, it is manifest that prosecutions and arrests are threatened for the sole purpose of unlawfully taking or destroying property or preventing the exercise of a franchise granted by the State.” See also Cutsinger v. Atlanta, 142 Ga. 555 (4) (83 S. E. 263, L. R. A. 1915D, 1097, Ann. Cas. 1916C, 280); City of Albany v. Newark Shoe Stores Co., 152 Ga. 557 (110 S. E. 283); Baldwin v. Atlanta, 147 Ga. 28 (92 S. E. 630); Hewin v. Atlanta, 121 Ga. 723 (49 S. E. 765, 67 L. R. A. 795, 2 Ann. Cas. 296), and cit. According to the undisputed evidence of the plaintiff in this ease, her stock of goods could not be disposed of for anything like their real value, except at retail and in the usual course of business; if her business is broken up, her store fixtures would have but little, if any, market value. From this it appears that the injury that would result to her would be irreparable.

Conceding that a petition for injunction was the plaintiff’s proper method for seeking an adjudication of her rights, the question which must arise is whether the trial judge erred in refusing a permanent injunction. From a view of the evidence as a whole it seems clear that the council delayed granting the license after the receipt of the fees required ($50 in all) until there could be a trial of the plaintiff’s husband upon a charge preferred against him in the city court of Thomasville for the offense of violating the prohibition law; and it is inferable that their final determination as to the formal grant of a license would have been largely dependent upon the result of that trial. For some reason (which we must presume was sufficient and legal) the case pending against plaintiff’s husband was continued by the judge presiding in the city court of Thomasville, and as a consequence the application for a license on the part of the plaintiff was refused; the notice was given by the city marshal that she could no longer carry on a drugstore or sell soda-water or cigarettes, and upon her disregard of this notice a municipal prosecution was inaugurated, upon which she was convicted. In our opinion these facts tend to show that the refusal to grant the license was arbitrary.

A wide distinction exists between the facts of this case and the case of Eisfeldt v. City of Atlanta, 148 Ga. 828 (98 S. E. 495), where the application was for a permit or license to conduct a rooming-house. Unlike drug-stores, or places that sell soda-water and cigarettes, the State law recognizes that there may be disorderly rooming-houses, and rooming-houses kept for purposes of lewdness, as well as lawful rooming-houses;- and the City of Atlanta, by express legislative authority, has been given extreme latitude in the exercise of an unlimited discretion, which is referred to in the Msfeldi case, in the grant or refusal of permits to conduct rooming-houses within that municipality. It does not appear that the City of Thomasville has been clothed with similar powers in this regard. On the contrary, it appears from section 11 of the act incorporating the City of Thomasville (Acts 1889, p. 858) that “All of said taxes [except ad valorem, etc.] shall be in the nature of a license.” For this reason we think that the case at bar stands upon the general principle that a lawful business which per se is useful and recognized as being a fit object for taxation for the purpose of raising revenue cannot be discriminated .against and the owner thereof refused the right to do business capriciously or arbitrarily; and we are further of the opinion that the refusal to grant one a license to engage in a useful and lawful business after payment of the license fees required by law has been tendered, merely upon the ground that a law has been violated at his place of business, must be deemed to be both capricious and arbitrary; and when it appears that the result of such arbitrary action will impose irreparable loss upon the owner of the property, who files a proper petition for relief against prosecutions for doing business without a. license although payment of the license fee has been tendered, an injunction should be granted. The case would be different were the license imposed solely for the purpose of police regulation. But it is plain in this case that the license fees prescribed are imposed solely for the purpose of raising revenue. This being the case, if any penal law of the State has been violated, it must be presumed that the arm of the law is long enough and strong enough to punish the offender, whomever he may be, and the penalty inflicted must be that provided by law, either State or municipal; but refusal to grant a license to conduct a legitimate business is not included among the penalties prescribed by law.

Judgment reversed.

All the Justices concur.