Opinion
27848.
ARGUED APRIL 9, 1973.
DECIDED JUNE 28, 1973. REHEARING DENIED JULY 12, 1973.
Note: The following is a dissent inadvertently omitted in J L Oil Company, Inc. v. City of Carrollton, page 817, ante.
The statute, Ga. L. 1971, p. 683, though not before us as a matter of constitutionality, pre-empts the entire area of local legislation with regard to self-service service stations and makes lawful and legitimate such businesses. It is pre-emptive because it withdraws from local governing authorities a police power they already presumably possess under the laws of the state, see, e.g., § XL of the City Charter of Carrollton, Ga. L. 1890-91, Vol. II, p. 474, allowing only for the use of such modicum remaining to set further standards for the operation of motor fuel dispensing pumps (the primary subject of the legislation) as may be reasonably imposed in view of local health and safety needs.
The unquestioned purpose of the statute is that of safety to prevent the operation of unsafe self-service service stations. It clearly recognizes differences in the operation of these kinds of stations, and it clearly recognizes that such stations may be legally operated if safe by providing for local licensing. I have no doubt the statute is constitutional for these reasons.
The appellant has argued that the Ordinance is in violation of the equal protection clauses of the State and Federal Constitutions because it establishes a discriminatory classification which is unrelated to any legitimate purpose of the statute. He has argued that as a matter of fact, unlike the plaintiff in Munford, Inc. v. Georgia Oilmen's Assn., Civil Action No. 2655 (U.S. Dist. Ct., M. D. Ga. 1973), cited by the majority, he has carried his burden of showing his station may be operated safely in view of the requirements of § 2 of the statute, of the Federal Occupational Safety and Health Act of 1970, 29 USCA § 651 et seq., and of the National Fire Protection Association standards for self-service stations as adopted by the Georgia Fire Safety Commission for use in all areas of the state in setting the safety standard. See NFPA Pamphlet No. 30 and Georgia Fire Commissioner, Rules and Regulations for Flammable and Combustible Liquids, Chapter 120-3-11. He contends he has met these standards and that in accordance with NFPA Pamphlet No. 30 the Safety Fire Commissioner of Georgia issued him a permit to operate his self-service service station; that he operates stations safely in other states of the Union, and that similar stations are operating under like standards in some 50 other localities of Georgia. For these reasons he contends that to place him in a general classification of self-service service stations and to allow a local governing authority to deny him a license for its operation, when it may be operated safely and whose safe operation was not within the proscriptions of the authorizing statute, would be unconstitutional. I believe this argument is compelling, and I accept it.
For purposes of equal protection, the basic inquiry is whether the classification of those to be regulated under the police power is a reasonable one, and a reasonable classification is that which includes all persons or things similarly situated with respect to the purpose of the law. See Rinaldi v. Yeager, 384 U.S. 305 ( 86 S.C. 1497, 16 L.Ed.2d 577); Carrington v. Rash, 380 U.S. 89 ( 85 S.C. 775, 13 L.Ed.2d 675) and note, Developments in the Law — Equal Protection, 82 Harv. L. Rev. 1065, 1076-87 (1969).
The purpose of the local ordinance in the present case can be no more than that of the statute authorizing local regulation and licensing of self-service service stations. That purpose is the assurance that unsafe stations shall not be operated. The General Assembly distinguished between the operations of such stations but allowed proscription only of those which could not be shown safe. The local ordinance on the other hand established a class of all self-service stations and placed within it the safe and unsafe alike. The ordinance is thereby over-inclusive in view of the purpose of the statute pre-empting local police power to act in this filed. Tussman and tenBroek in their essay, The Equal Protection of the Laws, 37 Cal. L. Rev. 341, 351 (1949), have described the situation of over-inclusiveness as imposing "a burden upon a wider range of individuals than are included in the class of those tainted with the mischief at which the law aims... Herod, ordering the death of all male children born on a particular day because one of them would some day bring about his downfall, employed such a classification. It is exemplified by the quarantine and the dragnet... The prima facie case against such departures from the ideal standard of reasonable classification is stronger than the case against under-inclusiveness. For in the latter case, all who are included in the class are at least tainted by the mischief at which the law aims; while over-inclusive classifications reach out to the innocent bystander, the hapless victim of circumstance or association."
Once the determination was made by the General Assembly that self-service service stations may be safely operated, the ordinance in preventing their licensing under any circumstances was not only in excess of the powers granted by the legislation but also resulted in a prima facie discriminatory classification. It is clearly unconstitutional.
This is not to say that a local governing authority may not impose higher safety standards upon self-service service stations. The statute authorizes it, and I find no constitutional infirmity for doing so if done reasonably while still preserving the idea or the basic modus operandi of these stations. The local authorities may not, in other words, make them into conventional stations — as they have arbitrarily done here — because they are themselves legitimate businesses.
The final question is whether mandamus will lie in this case to force the issue of the license. There seems to be some difficulty because if the ordinance is void, in its absence the city officials would have no authority to issue the license. This is because the statute itself is not self-executing but requires additional legislative action on the part of the local governing authority.
However, the clear legal duty in vindication of which mandamus may operate has been established by the General Assembly in the statute itself. Section 1 provides that those stations showing they will not be injurious to local health and welfare shall be licensed. As I have indicated previously, the standards for issuing licenses must be reasonable in view of the legislative declaration of legitimacy of self-service service stations. Consequently, though mandamus will not lie to compel the issue of the license, such relief of mandamus is here authorized to compel the city authorities to accept and pass upon an application for a license for the self-service service station upon such terms and conditions as may be reasonably fixed in view of the underlying purpose of the authorizing statute. A local governing authority may be compelled to exercise its discretion in the grant of a license and we have so held with regard to wine licensing. Pruitt v. Causey, 226 Ga. 569 ( 176 S.E.2d 57); Murphy v. Withers, 204 Ga. 60 ( 48 S.E.2d 721).
I would reverse the trial court and let the relief of mandamus issue against the city authorities.
I dissent.