Shurman v. City of Atlanta

95 S.E. 698, 148 Ga. 1, 1918 Ga. LEXIS 162
CourtSupreme Court of Georgia
DecidedApril 12, 1918
DocketNo. 730
StatusPublished
Cited by19 cases

This text of 95 S.E. 698 (Shurman v. City of Atlanta) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shurman v. City of Atlanta, 95 S.E. 698, 148 Ga. 1, 1918 Ga. LEXIS 162 (Ga. 1918).

Opinion

Hill, J.

(After stating the foregoing facts.)

1. The plaintiffs seek to have the ordinance just set out enjoined on the ground that it is unreasonable and void as a whole, and that certain sections thereof are void for reasons which will now' be considered either generally or in detail. It is insisted that the court erred in not holding that the provisions of section 6 of the ordinance are unreasonable, arbitrary, unduly discriminatory, and that they deprive them of their liberty of action and contract and of the right to acquire property, and deny them due process of law and equal protection of the laws, in violation of the fourteenth amendment of the constitution of the United States. The evidence in the record shows that prior to the adoption of the ordinance vacant houses in the City of Atlanta were systematically robbed of plumbing and other fixtures; that such houses were practically dismantled by thieves who secured the plumbing, building hardware, gas and electric-light fixtures, metals and brasses, and other articles covered by the ordinance, which they would sell to dealers in junk; that it was necessary to expend large sums of money to repair and restore such houses to their former condition in order to make them tenantable; and that these depredations were of almost daily occurrence. It was in this situation that the mayor and general council were petitioned by citizens of the city to adopt an ordinance which would remedy the evil complained of; and the present ordinance is the result.

Similar ordinances to the one now under review have been considered and passed upon by many courts of other jurisdictions. This court has never been called upon to decide whether a "junk ordinance” quite as drastic as the present one undoubtedly is can stand the legal assaults made upon it. Section 6 of the ordinance is the storm-center of attack, though the ordinance as a whole is assailed. It is argued that this section is arbitrary and unduly discriminatory; that it deprives the plaintiffs of liberty of action, and of the right to contract and to acquire property; and that it deprives them of due process of law and of the equal protection of the laws. A municipality has the authority to place reasonable and necessary regulations on vocations or businesses which come within the proper exercise of the police power. The ordinance here assailed does not prohibit buying, gathering, dealing in, or [11]*11selling junk of the kinds enumerated, but it provides the manner in which this shall be done; and unless it offends some constitutional right or legal principle applicable, it will be held to be a valid exercise of the police power. It does not follow that, because by enforcing such ordinance a junk dealer may be somewhat injured in his business, this deprives the city of its right to a proper exercise of the police power. City of Cartersville v. McGinnis, 142 Ga. 71 (82 S. E. 487, Ann. Cas. 1915D, 1067).

The present ordinance seems to be in some respects similar to a junk ordinance of the City of Anniston, Ala., which was under review in the case of Levi v. Anniston, 155 Ala. 149 (46 So. 237). From the report of that case it appears that the ordinance required a certificate from the chief of police as to the amount, description, of goods, etc., and the name of the seller, and upon these things being made to' appear a license to purchase the junk would be issued by that official. The ordinance was held valid by the Supreme Court of Alabama, as against the objection that it exempted persons and corporations engaged in the manufacture of brass goods, pig iron, east-iron pipe, etc. And see Soon Hing v. Crowley, 113 U. S. 703, 708-709 (5 Sup. Ct. 730, 28 L. ed. 1145). In Grossman v. Indianapolis, 173 Ind. 157 (88 N. E. 945, 89 N. E. 862), the city was authorized to tax persons dealing in junk; and the ordinance required a license, and a record to be kept of the purchases, showing the prices_ paid, the time of the purchase, the name, residence, age, color, height, weight, complexion, and style of dress and beard of the seller, and a- holding of the junk for 48 hours before reselling, etc. These regulations were held to be a valid exercise of the police power, and not unreasonable. In the case of Gundling v. Chicago, 177 U. S. 183, 188 (20 Sup. Ct. 633, 44 L. ed. 725), it was said: “Regulations respecting the pursuit of a lawful trade or business are of very frequent occurrence in the various cities of the country, and what such regulations shall be. and to what particular trade, business, or occupation they shall apply, are questions for the State to determine, and their determination comes within the proper exercise of the police power of the State; and unless the regulations are so utterly unreasonable and extravagant in their nature and purpose that the property and personal rights of the citizen are unnecessarily, and in a manner wholly arbitrary, interfered with or [12]*12destroyed without due process of law, they do not extend beyond the power of the State to pass, and they form no subject for Federal interference.” In Rosenthal v. New York, 226 U. S. 260 (33 Sup. Ct. 27, 57 L. ed. 212, Ann. Cas. 1914B, 71), it was held: “A State may, in the exercise of the police power, classify separately particular kinds of personal property which' the legislature considers more susceptible of theft than other property. It is not unreasonable or arbitrary to require dealers in junk to make diligent inquiry to ascertain that persons selling to them wire cable, iron, etc., belonging to railroad compánies, have a legal right to do so. Dealers who provide an important and separate market for a particular class of stolen goods may be put in a class by themselves; and so as to dealers in junk.” In the opinion of the court, rendered by Mr. Justice Pitney, it was said: “Nor can the act in question be deemed to conflict with the ‘equal-protection’ clause because it places junk dealers, etc., in a class by themselves.” See McQuillin on Mun. Cor. § 193. It is argued that under the section of the ordinance now being considered no junk dealer, junk buyer, or junk gatherer, or a person owning a house, and who desires to buy articles enumerated in the section, can receive or possess them without first notifying the chief of.police of the City of Atlanta in writing of the intention to purchase them, giving the name of the seller, a full description of the material to be purchased, the address of the seller, the location of the material to be purchased, with the house and street address, the price to be paid for such article, and receiving from the chief of police a written certificate that such articles have been inspected, etc. These requirements are not more drastic than some of the ordinances which have been upheld by the courts of other jurisdictions as being a proper, exercise of the police power. It would indeed be strange if the city could not adopt an ordinance which would protect its citizens from the thieves who rob their houses for the purpose of selling their loot to junk dealers, even though the business of the junk dealers in buying the stolen articles may be somewhat affected thereby. One purpose of the police power is to" protect the' citizens in their property from those who would deprive them of it, not only without “due process of law,” but contrary to law; and it can not be said, in view of the authorities above cited, and others not cited, that the section of the ordi

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Bluebook (online)
95 S.E. 698, 148 Ga. 1, 1918 Ga. LEXIS 162, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shurman-v-city-of-atlanta-ga-1918.