Rogers v. Carr , 203 Ga. 594 ( 1948 )

Where a city ordinance providing for the issuance of licenses to operate taxicabs authorizes the mayor and council to grant or refuse a license in their discretion, the courts will not control their discretion by the writ of mandamus.

No. 16206. MAY 12, 1948. John R. (Jack) Rogers filed a petition for mandamus against the Mayor and Councilmen of the City of Blairsville. He sought a license to operate a taxicab, and alleged that he had complied with all prerequisites of the city ordinance relating thereto, and he expressed a readiness to abide by all regulations imposed by the ordinance, but that his application had been denied without cause, which was arbitrary, illegal, capricious, was a gross abuse of discretion, and denied him equal protection of the laws in violation of the Fourteenth Amendment to the United States Constitution (Code, § 1-815), and impartial and complete protection of the laws in violation of article 1, section 1, paragraph 2, of the Georgia Constitution (Code, Ann. Supp., § 2-102). To his petition was attached a copy of the ordinance. A rule nisi was issued. The mayor and councilmen filed an answer, admitting that they had declined to issue the license, and asserting that they had authority so to do under the terms of the ordinance. At the hearing the issue was submitted to the trial judge without evidence except the admission of facts in the pleadings in the case. A mandamus absolute was denied, and to this order exceptions were taken. The ordinance here in question contains the following provision: "Each and every applicant for a license shall and will be carefully considered by the Mayor and Councilmen of the City of Blairsville, and after a careful consideration of all the facts and circumstances, any and all applications, in the discretion of the authority aforesaid, they will then grant or deny the applicant a license."

The transportation of passengers for hire upon the streets of a city is not an inherent right, but a privilege which the municipality, in the exercise of discretion may grant or refuse.Schlesinger v. Atlanta, 161 Ga. 148 (2) (129 S.E. 861);Clem v. LaGrange, 169 Ga. 51 (4) (149 S.E. 638, 65 A.L.R. 1361).

The writ of mandamus will issue only to enforce a duty which is imposed by law. The law must not only authorize the act to be done, but must require its performance. It must appear that the petitioner has a clear legal right to have performed the particular act which he seeks to have enforced. Hart v. Head,186 Ga. 823 (199 S.E. 125); Harmon v. James, 200 Ga. 742 (38 S.E.2d 401).

The ordinance under which the license is sought authorizes the mayor and council to grant or deny the application in their discretion; and where they have exercised the discretion reposed in them and refused an application, the courts will not control their discretion by the writ of mandamus. Harbin v. Holcomb,181 Ga. 800 (184 S.E. 603); Tate v. Seymour, 181 Ga. 801 (184 S.E. 598); Hodges v. Kennedy, 184 Ga. 400 (191 S.E. 377).

The instant case differs from the case of McWhorter v.Settle, 202 Ga. 334 (43 S.E.2d 247), as the ordinance there relied upon made no provision for the exercise of the discretion of the mayor and council in granting or denying a license.

Judgment affirmed. All the Justices concur, except Candler,J., who is disqualified.