While as a general rule a court of equity (or one exercising equitable jurisdiction) will not enjoin a proceeding before a recorder of a city, instituted for the purpose of punishing the violation of a penal ordinance, yet in certain cases a court having equitable jurisdiction may intervene to protect property or property rights from irreparable damage by wrongful conduct of municipal officers, although repeated prosecutions in the recorder's court, or threats thereof, may be used as a means of consummating the wrong. [See 10 Ann. Cas. 760; 19 Ann. Cas. 459; 35 Am. St. Rep. 677.]

5. Petition Held Sufficient.

The allegations of the petition in this case were sufficient to withstand a general demurrer, which admits the facts alleged; and it was error to sustain the demurrer and dismiss the petition.

(Syllabus by court.)

Error to Superior Court, Fulton county: PENDLETON, Judge.

Action for injunction. Helen Cutsinger, plaintiff, and City of Atlanta et al., defendants. Judgment for defendants. Plaintiff brings error. REVERSED.

[556] Helen Cutsinger, who alleged that she was a citizen of the United States, and of Fulton County, Georgia, filed her petition against the City of Atlanta, the chief of police of that city, the recorder, the mayor, aldermen, and members of council, alleging in substance as follows: On and prior to October 7, 1912, the City of Atlanta [557] had permitted a rooming house or lodging house to be conducted at number 1151 Decatur street. Being physically unable, at that time, to conduct it herself, she employed one Harding to conduct it for her. On the date mentioned Harding applied for and obtained a license to operate the business and conduct it for the plaintiff until she was able to take charge of it for herself. Early in January, 1913, having resumed the conduct of her own business, the plaintiff applied to the city clerk for a license, tendering him $6.25, the amount due for one quarter, in accordance with the tax ordinance of the city. The clerk declined to receive the tender or issue the license, stating that she would be compelled to file a written application therefor. While not conceding the right of the mayor and general council to pass upon such applications as to a business of this character, which was a useful and lawful business, or to deny her a license, yet, in order to be in harmony with the defendants

if possible, she filed an application for a license to operate a lodging house for men only at the place named. Pending this application she was advised by the chief of police, through her counsel, that "no case would be made against her" for conducting the business until after the application had been passed on, and then only if it should be refused. She accordingly proceeded with the conduct of her business until a few days before the filing of the petition, when she was notified by a police officer, who stated that he was acting under the direction of the chief of police, that her application had been refused and she would be compelled to close, and would not be allowed longer to operate her lodging house, that if she attempted to do so she would be charged with the commission of a violation of the municipal ordinance of the city against doing business without a license, that her employees would be arrested, and that she would be carried before the recorder and tried and punished by fine or imprisonment, and that other cases would be instituted against her from day to day until she closed her lodging house. During all the time in which she has been engaged in the business she has been conducting an orderly place, catering to white male trade only, and strictly complying with the laws of the State and the ordinances of the city, and seeking to earn an honest living by the proper pursuit of a legitimate line of business. She has been persecuted, harassed, humiliated, and damaged by the chief of police by continually "flooding" her place of business with police officers and plain-clothes [558] detectives, without any search-warrant or other legal authority. By reason of these continued raids the business and patronage of her lodging house has been considerably and materially diminished, and her revenue has been much reduced. She caters to a class of "country white male trade," and the poorer classes of white men, many of whom pay only twenty-five cents for a bed or cot. Such men are easily intimidated and alarmed at police raids and illegal searches, and they either leave or do not return to her place of business; and she is also humiliated, disgraced, and mortified by such continued illegal and unwarranted action on the part of the police officers under the direction of the chief. She has had as many as ten policemen in her house at one time. A squad of "plainclothes men" will suddenly enter her house; the officer in command will take charge of the front door, the only place of exit, and will send his force from room to room search

ing the house. These police squads have taken possession of her lodging-house register and have gone from room to room and asked the occupant of each bed or room his name, waking them if necessary, and seeing if they

were in the proper room, and if their names corresponded to the names on the register. To the best of her knowledge and belief, at none of these times has there been any warrant of any kind or character for such action. She has protested against these raids, but has been advised that she had better submit without comment and allow such persecution, as it would be necessary for her to have the permission of the chief of police in order to procure her license, and that he would oppose her obtaining the license if she did not submit. She filed her application for the license on January 3, 1913, but the council did not refuse it until March 6 following. During that period her place of business has been under constant police surveillance and subject to frequent raids, and at no time has there been a single complaint of any violation of any City, State, or Federal law by her or any occupant or patron of her lodging house. Although she has conducted her business at the place mentioned for months, and in absolute compliance with the law and all police regulations, and has submitted to the police raids mentioned, nevertheless she is advised by a representative of the chief of police that she must close her place of business and yield her right to make an honest living, "unless she meekly submits to the will of the chief of police, J. L. Beavers, who, petitioner believes, [559] is responsible for the denial of her application for license by the mayor and general council of the City of Atlanta." Her lodging house is located near to the police headquarters and within two blocks of the call-office of the police department. On March 23, 1913, the chief of police went in person to her place of business, took charge of her register, instructed an officer who accompanied him to take the names of men who had registered therein, ordered her to allow no one else to register, and to close up her house, and served her with a copy of charges to appear at the recorder's court for violating the rooming-house ordinance. A case was docketed against her, which is now pending. "Your petitioner is advised and believes that said chief Beavers, although he knew that he had used every endeavor possible to find your petitioner violating some law or ordinance, and had failed, yet wrote the police committee of the general council," to whom this application was referred, and recommended to them that the application of petitioner be denied." The action of the chief of police in making this case and in threatening to make other cases from day to day is based upon an amendment to the charter of the City of Atlanta, enacted by the legislature in 1912 (Acts 1912, p. 573, sec. 13), which reads as follows: "That the Mayor and General Council be and they are hereby authorized to regulate hotels, lodging

houses, dance halls, rooming houses, and similar places, and they are further authorized and empowered, by ordinance, to require all person or persons owning or operating such hotels, houses, or halls to apply for a license for the operation of same, and such license may be granted or refused in the discretion of the Mayor and General Council, and their action in the premises shall be final. For a violation of such ordinance or the operation without a license granted, as herein provided, any person or persons adjudged guilty thereof in the Recorder's Court shall be subject to a sentence to pay a fine of not exceeding five hundred dollars, or to work on the public works of the city for not exceeding thirty days, either or both in the discretion of the recorder." Under this the mayor and general council adopted an ordinance the first section of which reads as follows: "Be it ordained by the Mayor and General Council, that any person, firm, or corporation desiring to open or operate a hotel, lodging house, dance hall, rooming house, or similar place shall, before opening or operating such house or place, file a petition for a license, addressed to the Mayor and General Council. If said license is granted, then the City Clerk is authorized [560] to issue and receipt for a business license for such house; but if such license is refused, then such business license shall not be issued, and it shall be unlawful for any person, firm, or corporation to operate such house or place." The second section imposed a penalty upon "any person, firm, or corporation owning or operating any hotel, lodging house, dance hall, rooming house, or similar place, without being granted a license therefor by action of the mayor and general council." Under this ordinance the defendants are now seeking to close her house, stop her business, and involve her in a multiplicity of criminal prosecutions. The application which she filed was referred to a subcommittee of the general council, known as the police committee, though without notice to her. She is advised and believes that the chief of police, "by private official letter" to the chairman of the police committee, without notice to her, undertook to prejudice the chairman and other members of the police committee, and through their report the mayor and general council, against granting the application of the plaintiff, and, to the best of her knowledge and belief, undertook privately in personal conversation to influence the members of the police committee to make an adverse report upon her application, without giving her the privilege of knowing the reasons assigned for such action on the part of the committee, or an opportunity to be heard upon them and to reply thereto. At one time her, counsel happened to be present at a meeting of the committee and spoke to them

in relation to her application, but she is not advised as to whether the committee had passed adversely upon it at that time or not. At that particular meeting the chief of police was present, but offered no public objection to the application, and no notice was given or opportunity for her or her counsel to answer any objection at that meeting. The entry upon the application shows an adverse report by the committee, dated January 20, but it was not passed upon by the council until March 6. She is advised and believes "that said police committee met in secret session about half an hour before the meeting of the general council, and, upon the information, not under oath, of the said chief Beavers, adversed or passed unfavorably upon the petition or application." The action of the general council followed the recommendation of the police committee, without any investi: gation on the part of the general council; and under the ordinances of the city 'she would not have been permitted to be present and to have discussed the merits of [561] her application, and the only method of reaching the city government was through its police committee. She is a woman of mature years, now past middle life. On account of her great weight (two hundred and eighty-six pounds), and on account of her having undergone several surgical operations, she is unable to do manual labor or remain long standing upon her feet. She is familiar with the lodging-house business, and it is practically the only business with which she is familiar and which she is physically able to carry on. She has built up a sufficient business to support herself reasonably, and the name and good will of her business at the location mentioned is an intangible but valuable asset. There can be no reason for any denial of a license to operate a lodging house at this location. The place is located on the second floor of a building, with a stairway entrance to the street, and affects and injures no one; but the location is one where a hotel or lodging house of a cheap character is needed to accommodate a class of poor laboring men working in that locality, and men from the country who have come to town for the sale of their goods and the purchase of merchandise. The business was in operation at the time of the passage of the ordinance above mentioned, and the plaintiff had made large investments in furniture, in papering and painting of walls and woodwork, in carpeting of floors, halls, and steps, and in the installation of gas and electric fixtures and equipment. Practically all of this expenditure will be lost if she is compelled to cease doing business, as well as the name and good will of her business. "Petitioner is advised and believes, that, owing to the antagonistic attitude of the chief of po

lice toward her, she will not be allowed by the mayor and general council of the City of Atlanta to have any license to operate a lodging house at any other point available to her in the City of Atlanta, and that her rights and her experience in the lodginghouse business are forever lost to her, as far as being able to use the same in the City of Atlanta." The patronage of a lodging house is affected by so many considerations that it is impossible to estimate the damages which would result from a destruction of the business. To press the proceeding in the recorder's court would expose her to humiliation, embarrassment, expense, and possibly to temporary confinement, should it become necessary for her to have the action of the recorder reviewed by certiorari; and this might continue for months before the case could be heard. The [562] plaintiff, having no real estate, and not being allowed to continue her business, could in all probability procure no bondsman, but would be compelled to languish in jail, and in the meantime her property, her business, would be destroyed; and even though she should ultimately win, the victory would be an empty one, and she would be discharged from jail without a vestige of property left. The multiplicity of the threatened quasi criminal cases would bankrupt her in the payment of counsel fees and other expenses. "Such action amounts to nothing more or less than absolute confiscation of the property of petitioner and her utter ruin financially and in a general business in the said City of Atlanta." She will therefore be irreparably damaged, and have no legal remedy or redress. "Your petitioner shows that said criminal prosecutions now threatened to be continued are obviously nothing but a circuitous method of depriving petitioner of her property and property rights in said business, and are nothing more than an attempt by the municipal authorities of the city of Atlanta, under the pretense of seeking the good of the portion of society entrusted to their supervision, are in fact attacking the vested rights, property rights, of your petitioner." The threatened repeated prosecutions, under color of municipal ordinances, if not prevented, will practically destroy her vested property rights; "and said criminal prosecutions are a wresting of the criminal side of the law from its legitimate purpose, in matters to which they do not properly apply, and are used merely as a cloak to hide the effort to prevent petitioner from engaging in her useful and lawful occupation.' The act of the legislature above quoted is unconstitutional as being in violation of the fourteenth amendment of the constitution of the United States (Civil Code (1910) § 6700), in that it attempts to vest in the mayor and general council the arbi

trary right to abridge the privilege of the plaintiff to do business, and thus denies to her due process of law and the equal protection of the laws. The ordinance is unconstitutional for the same reason; as is also the action of the mayor and council. The act of the legislature and the ordinance based upon it are also in conflict with the provision of the State constitution which declares that "Protection to person and property is the paramount duty of government, and shall be impartial and complete" (Civil Code (1910) § 6358). They also violate the provision of the State constitution that "no person shall be deprived [563] of life, liberty, or property, except by due process of law" (Civil Code (1910) § 6359). The act of the legislature and the ordinance are unreasonable, and seek to invest the mayor and general council with arbitrary power, with no rule or regulation to guide it, or to prescribe terms for its exercise, or put any limitation upon it, and without prescribing any terms or conditions upon which a permit or license can be obtained, or allowing any appeal from the decision of the general council, or prescribing any rules of procedure. Even if discretion is lodged in the municipal authorities, it has not been fairly administered, but has been arbitrarily and grossly abused, amounting to a discrimination against her and an oppression of her as a citizen, and it is being capriciously exercised in an arbitrary manner. In fact the abuse of discretion amounts to a failure to exercise municipal discretion, and to an arbitrary undertaking to exercise unlimited power, without recognition of the rights of the plaintiff, and without giving to her an opportunity to be heard in her own behalf. She is willing to submit to any reasonable regulations that do not amount to a prohibition or a confiscation of her property and civil rights, and she offers to submit to any reasonable rule and regulations the court may impose. She prays that an injunction be granted to prevent the defendants from interfering with the operation of her business, or proceeding with quasi criminal prosecutions against her.

The defendants demurred to the petition, on the grounds that no cause of action was set out; that it undertook to enjoin a criminal prosecution by equitable procedure; that it appeared that the city was authorized to grant or reject the application for license and that it had rejected the same, and no injunction should be granted against the further prosecution of the plaintiff; and that no grounds of equitable interference are set out. The demurrer was sustained, and the plaintiff excepted.

William M. Smith for plaintiff in error. James L. Mayson and William D. Ellis Jr., for defendants in error.

1.

LUMPKIN, J. (after stating the facts.)—

The police power to grant licenses by which one person can conduct a certain business and another cannot, or by which a business may be conducted at a certain place and not at another, necessarily involves some discrimination for the public welfare. Such licenses have been broadly grouped into four classes: (1) [564] Where promiscuous or indiscriminate freedom to act will disturb public order or interfere with the common use of public places. A type of this class is in regard to permitting the use of the public streets for parades or processions, which may impede public traffic or cause serious collisions if all be allowed the privilege; or the granting of permission to a street railway to lay its tracks in a street, which does not require the same permission to be granted to all other similar companies to the exclusion or injury of the general public. (2) Where an occupation is offensive to comfort or endangers public safety, it may be so restricted as to locality or the manner in which it shall be conducted as not to cause injury. Chemical factories and slaughter-houses furnish examples of this class. (3) In some occupations the lack of personal qualifications or competence causes the danger to the public, and requires to be guarded against. Doctors, dentists, and plumbers are illustrations of this class. (4) Some occupations are held to be such as to involve danger to the public peace, order, or morality, and therefore to be proper subjects for regulation or licensing so as to prevent injury to the public. This is sometimes done by regulating the manner in which the business shall be conducted, and sometimes by means of a license law, so as to see that the business does not fall into the hands of persons of such evil character or reputation as might cause harm to the public. Pawnbrokers and junkdealers illustrate this class, where the grant of a license to a lawbreaker or thief might open the door to making the place one for the reception of stolen goods. In the first two classes the basis of distinction is objective, that is, based on the nature or character of the business; in the last two they two relate rather to the person. Freund on Police Power, § 639. This classification, and these illustrations, not declared to be exhaustive, refer to the police power generally, and not particularly to that granted to towns or cities.

In the growth of municipalities, where the population becomes dense, and new relations and new dangers arise, for the common welfare and protection more extensive power to cope with the new situation becomes necessary,-power to prohibit certain evils and to meet certain dangers. Hence arises the grant of power to regulate, prohibit, or license certain businesses within the municipal

limits (in the proper sense of the word "license," as distinguished from the imposition of a license tax for revenue). The authorities [565] recognize some businesses as proper subjects of police licenses, but doubt or deny whether others can be declared to be illegal unless permitted. We need not discuss the difference. Suffice it to say that the keeping of lodging houses or rooming houses is a business so far affecting the public interest as to authorize the grant of legislative authority for its regulation and licensing, in order to see that such houses do not become places for the practice of vice or crime or menaces to the public welfare. Munn v. Illinois, 94 U. S. 113, 129, 24 U. S. (L. ed.) 77, 85; Bostwick v. State, 47 Ark. 126, 14 S. W. 476.

2. In regard to conferring upon city officials a discretionary power to grant or refuse licenses in those cases which are proper subjects of police licenses, there are two lines of authority. One holds that there should be some uniform rule of action prescribed, governing the exercise of the discretion; and that the conference of a general discretion without this, at least as to occupations not subject to be wholly prohibited, is invalid as conferring arbitrary power. Montgomery v. West, 149 Ala. 311, 42 So. 1000, 123 Am. St. Rep. 33, 9 L.R.A. (N.S.) 659, 13 Ann. Cas. 651. The other class of decisions holds, that, as it is sometimes difficult for the legislature in advance to prescribe all of the conditions upon which the license shall be issued, it is competent for them to confer upon a municipal council the power in general terms, it not being presumed that this is intended to confer power to act arbitrarily, or that the authorities will so act. 2 Dill. Mun. Corp. (5th ed.) § 598 and citations. In some of the cases the ordinances under consideration appear to have been adopted by virtue of what is called the general welfare clause in municipal charters, and the discussions were based on the general requirements that municipal ordinances must be reasonable. In others the direct question of the constitutionality of such ordinances or acts was passed upon.

Judge Dillon says: "Where the legislature, in terms, confers upon a municipal corporation the power to pass ordinances of a specific and defined character, if the power thus delegated be not in conflict with the constitution, an ordinance passed pursuant thereto cannot be impeached as invalid because it would have been regarded as unreasonable if it had been passed under the incidental power of the corporation, or under a grant of power general in its nature. In other words, what the legislature distinctly [566] says may be done cannot be set aside by the courts because they may deem it to

be unreasonable or against sound policy. But where the power to legislate on a given subject is conferred, and the mode of its exercise is not prescribed, then the ordinance passed in pursuance thereof must be a reasonable exercise of the power, or it will be pronounced invalid." 2 Dill. Mun. Corp. (5th ed.) § 600. Some occupations are of such a character that they may be prohibited altogether. The one most frequently before the courts is that of selling intoxicating liquors. There are other occupations which cannot be prohibited, though they may be regulated. 2 Dill. Mun. Corp. (5th ed.) § 666. So there are certain things which a person has no inherent right to do, such as using the public streets or places for purposes other than their normal use. Some of the decisions, in upholding the grant of general discretionary powers, have taken note of the distinction between things which might be prohibited, and those which could not be. But others have not done so.

In the case at bar, the business of keeping lodging houses is a legitimate business. The power to regulate and license it is conferred by express legislation. The question therefore arises upon the validity of the act of the legislature. In Buffalo v. Hill; 79 App. Div. 402, 79 N. Y. S. 449, and ordinance was adopted under a charter power to regulate and license the sale of meats. The ordinance provided for the issuance of a license by the mayor upon direction of the council after a two-thirds vote. Spring, J., in delivering the opinion of the court, said: "The right of the individual to carry on any gainful, lawful occupation without municipal interference unless conducted in a manner detrimental to the public is guaranteed to him as one of his inalienable prerogatives. On the other hand, the right of the legislature, and by its delegation the municipality, to enact laws or ordinances for the preservation of the public health, even though individual loss results, is a necessary power incident to the government of cities. The maxim salus populi lex suprema est is more than a mere sentiment, and has become one of the props of the police power, an elastic mantle whose ample folds cover much municipal legislation which finds no other justification. Between these two clashing principles it is often difficult to determine when the action of the municipality transcends its powers and trangresses upon [567] the rights of the individual." And see Davis v. Massachusetts, 167 U. S. 43, 17 S. Ct. 731, 42 U. S. (L. ed.) 71 (an ordinance prohibiting the making of any public address upon public grounds, except in accordance with a permit from the mayor); Wilson v. Eureka City, 173 U. S. 32, 19 S. Ct. 317, 43 U. S. (L. ed.) 603 (a prohibition against moving