The provisions of the act approved August 15, 1910 (Ga. L. 1910, pp. 88, 89), requiring hotels and inns three stories in height and over to provide fire escapes on the outside of such buildings, and providing that the violation thereof shall be a misdemeanor, and that the act shall include only hotels and inns charging patrons or guests $2 per day and more, offends the equal-protection provision of the State and Federal Constitutions, in that the classification is arbitrary, since it is based upon the amount charged the guests and bears no conceivable relation to the purpose of the law, which is the protection of the guests against the danger of fire. The court erred in overruling the demurrer *Page 382 to the indictment based upon this law, which challenged the act upon the ground that it is unconstitutional, in that it offends the equal protection clause of the State and Federal Constitutions.
No. 15814. JUNE 12, 1947. Atkinson, Justice, being disqualified, Judge Boykin was designated for this case.
In indictment in Fulton Superior Court against A. F. Geele Sr., A. F. Geele Jr., and R. E. O'Connell charged the defendants with involuntary manslaughter in the following manner: "Accused did operate and maintain for profit a hotel known as the Winecoff Hotel, in the City of Atlanta, Georgia, said county, said hotel being fifteen stories in height, and operated for the accommodation of the public, having rooms sufficient to accommodate several hundred paying guests, accused charging their patrons and guests two dollars per day or upwards, and did maintain and operate said hotel contrary to law, in that said hotel was not provided with any fire escape on the outside of the hotel building connected on each floor above the first and accessible to the occupants of all floors above the first floor; said hotel not having any fire escape of any kind on the outside of said building. On the date aforesaid, said J. R. Moody was a paying guest to whom accused had rented a room in said hotel, and said J. R. Moody while in said hotel on a floor or story above the third floor of said hotel, was killed by reason of a fire which swept through the corridors, hallways, floors, and rooms of said hotel, scorching, burning, and consuming great portions of the interior thereof; said J. R. Moody in an effort to escape therefrom and save his life did fall from a story or floor above the third floor of said hotel onto the ground beneath, causing serious wounds and bruises upon his person from which he died; the death of said J. R. Moody being the result of and caused by the unlawful act of accused persons in operating and maintaining said hotel building as aforesaid, which unlawful act of accused was wilfully and wantonly engaged in by them in disregard of the probable effects of the absence of such fire escape on the outside of said hotel building; accused well knowing that the probable consequence thereof might be danger to the lives of guests in said hotel in and by fire therein; all of said acts of accused being contrary to the laws of said State, the good order, peace and dignity thereof." *Page 383
The defendants jointly demurred to the indictment, the demurrer being as follows: "1. The accused demur to said indictment upon the ground that the allegations therein do not charge the accused with any offense under the law, and under the allegations therein the accused are not guilty of any offense under the laws of the State of Georgia. 2. The said indictment charges the accused with the commission of involuntary manslaughter by the killing of a human being in the commission of an unlawful act. The alleged unlawful act set out in the indictment is that the accused did operate a hotel without outside fire escapes and did charge the patrons of said hotel in excess of two dollars ($2) per day. The only law or purported law in the State of Georgia requiring outside fire escapes under such circumstances is that law appearing in the Georgia Code of 1933 as sections 52-201, 52-205, and 52-9902. Said Code sections, in so far as they require outside fire escapes on hotels which charge patrons in excess of two dollars ($2) per day are unconstitutional and void and without legal force and effect, for the following reasons: (a) The said statute was enacted for the purpose of protecting the welfare and safety of hotel patrons and guests. By its terms, however, it excepts from its operation all hotels or inns charging guests or patrons less than two dollars ($2) per day. Accused aver that said classification is unreasonable and arbitrary and bears no reasonable relation to the protection of the public or of patrons or guests of hotels or inns; that it bears no reasonable relation to any other thing or matter within the police power of the State of Georgia, and for these reasons said statute deprives the accused, and each of them, of their property and liberty without due process of law, and in violation of the Fourteenth Amendment to the Constitution of the United States, wherein it is provided that no State shall deprive any person of life, liberty, or property without due process of law. (b) Likewise, and for similar reasons, the said statute is violative of article I, section I, paragraph III (Code 2-103) of the Constitution of the State of Georgia, wherein it is provided that no person shall be deprived of liberty or property without due process of law. (c) The said statute and the portion thereof which seeks to require outside fire escapes only upon hotels and inns charging patrons and guests more than two dollars ($2) per *Page 384 day is arbitrary, capricious, and unreasonable, in that the classification, based solely upon the charge to patrons and guests, bears no reasonable relation to the subject-matter and purpose of the legislation; that it bears no reasonable relation to the protection and safety of the public or hotel patrons and guests; that it bears no reasonable relation to any other matter or thing within the police power of the State of Georgia, and said statute is discriminatory and denies the accused and each of them the equal protection of the laws in violation of the Fourteenth Amendment of the Constitution of the United States, wherein it is provided that no State shall deny to any person within its jurisdiction the equal protection of the laws. (d) Likewise, and for similar reasons, the said paragraph is violative of article I, section I, paragraph II (Code 2-102) of the Constitution of the State of Georgia, wherein it is provided that the protection of person and property is the paramount duty of government and shall be impartial and complete. The accused, and each of them, pray that each and every ground of the foregoing demurrer be inquired into and sustained; that said Code sections be declared unconstitutional as in violation of the Constitution of the United States and of the State of Georgia, as hereinabove set out, and the said indictment be quashed, as to each and all of the accused, upon all the grounds above specified." The judgment overruling the demurrer was as follows: "The within demurrers to the indictment in the above-stated case coming on for hearing, after argument and consideration it is considered, ordered and adjudged that the general and special demurrers be and are hereby overruled on each and every ground." (Citing cases.) The exception here is to the judgment overruling the demurrer. The constitutional question here presented is clearly made and calls for a forthright decision. The statute upon which the constitutional attacks are made is the act of 1910, sections 4, 5, and 6 (Ga. L. 1910, pp. 88, 89). The ground of attack is that the statute is discriminatory against hotels and inns charging *Page 385 their guests $2 and more, to which the law applies, and in favor of hotels and inns charging their guests less than $2, which are exempt from the requirement of the law that fire escapes on the outside be provided, and that a failure to conform to this requirement is a misdemeanor.
The applicable rule of law, which is the recognized standard by which classification by legislation must be tested, may be stated succinctly as follows. The basis for classification must relate in some degree to the object or purpose of the legislation. The substance of this rule has been repeatedly stated by this court. In Stewart v. Anderson, 140 Ga. 31,33 (78 S.E. 457), it was stated: "The basis of classification must have some reasonable relation to the subject-matter of the law, and must furnish a legitimate ground of differentiation. Mere arbitrary discriminations are not permissible under the Constitution." This rule was stated in Cooper v. Rollins,152 Ga. 588, 593 (110 S.E. 726, 20 A.L.R. 1105), in substantially the same language as last quoted. In Gregory v.Quarles, 172 Ga. 45, 48 (157 S.E. 306), this court quoted with approval from Judge Powell in Felton v. Atlanta, 4 Ga. App. 183 (61 S.E. 27), as follows: "Such statutes and ordinances must make no discrimination which is not based upon some reason connected with or growing out of that paramount cause in which they find justification for their enactment." InIndependent Gasoline Co. v. Bureau of Unemployment Com.,190 Ga. 613, 616 (10 S.E.2d 58), it was said that "a classification must be reasonable and have a fair and substantial relation to the object of the legislation."
As applied to the equal-protection clause of the Federal Constitution, the Supreme Court of the United States in Southern Railway Co. v. Greene, 216 U.S. 400 (30 Sup. Ct. 287,54 L.ed. 536, 17 Ann. Cas. 1247), stated the rule as follows: "While reasonable classification is permitted, without doing violence to the equal protection of the laws, such classification must be based upon some real and substantial distinction, bearing a reasonable and just relation to the things in respect to which such classification is imposed." That court stated the same rule in Asbury Hospital v. Cass County, 326 U.S. 207, 214 (66 Sup. Ct. 61, 90 L. ed. 6), as follows: "The legislature is free to make classifications in the *Page 386 application of a statute which are relevant to the legislative purpose. The ultimate test of validity is not whether the classes differ but whether the differences between them are pertinent to the subject with respect to which the classification is made." 16 C. J. S. 955, § 489, states the rule as follows: "In order to be valid a statutory classification must reasonably promote some proper object of public welfare or interest, must rest on real and substantial differences, having a natural, reasonable, and substantial relation to the subject of the legislation, and must affect alike all persons or things within a particular class, or similarly situated." The rule is stated in practically the same language in 12 Am. Jur. 144, § 478.
The State constitutional provision involved is article 1, section 1, paragraph 2 and is as follows: "Protection to person and property is the paramount duty of government, and shall be impartial and complete." The Federal constitutional provision here invoked is found in our Code, § 1-815, and is a part of the Fourteenth Amendment requiring due process and equal protection of the law.
Opposing counsel in the present case have cited numerous decisions of this and other courts, some sustaining and some overruling the constitutional attacks here made when lodged against laws there considered. We have found no decision where the court rendering the same disagreed with the applicable rule above stated, the decision in each case turning upon the court's interpretation of the facts in the case considered, the law being sustained if the facts as there considered showed want of discrimination and conformity to the above rule in that the classification bore some reasonable relation to the purposes of the legislation.
Since the law here challenged is plain, the constitutional provision invoked is unambiguous, and the rule by which the law must be tested is clearly established by the decisions of the courts, it becomes necessary, therefore, to place the law by the side of the Constitution and determine if it conforms to the requirements thereof. The obvious and single purpose of the law in requiring outside fire escapes upon hotels and inns three stories in height and over is to protect the lives of the occupants against fire. Classification of these structures, whereby the law is made applicable to those of three stories and higher, and inapplicable to such structures when *Page 387 less than three stories in height, is plainly related to the purpose of the law, in that the lives of the occupants below the third story are not in as much danger as those of the occupants of the third floor and above. But the basis of classification here under attack is not the height of the building, the materials with which the building is constructed, or the surrounding fire hazards. It is the amount per day which the patrons are charged. If that amount is $2 per day or more, the law is made applicable, and requires that outside fire escapes be provided. If the charge is less than $2 per day, the law is inapplicable, and no such fire escapes are required. Does this basis upon which the classification is made relate in any conceivable way to the purpose of the law, which is the safety of the guests from the danger of fire? We agree with counsel for the State that the law should be sustained as against the attack here made if any state of facts can reasonably be conceived that would sustain it, and that the existence of that state of facts at the time the law was enacted must be assumed. Georgia Sou. FloridaRy. Co. v. Adkins, 156 Ga. 826 (120 S.E. 610); Asbury Hospital v. Cass County, supra. It is not conceivable, however, that the amount which a guest is charged would affect the danger of fire to which he would be exposed. If two hotel buildings are erected side by side, constructed of the same materials, and in all respects equally exposed to fire hazards, the occupants of such buildings would be equally exposed to the danger of fire, regardless of the amount they were charged. If the law here challenged is to be sustained, then the equal-protection provisions of the Constitution, so far as arbitrary classification is concerned, would be without meaning. The State is as much concerned in the preservation of the lives of occupants of hotels and inns who pay less than $2 per day as it is in the lives of those who pay $2 per day and more. It can not constitutionally enforce a law that protects the one and affords no protection to the other solely because of the amount they pay per day.
It has been strongly urged by counsel for the State that the necessity for providing lodging for people unable to pay $2 per day and more was a sufficient reason for making the classification here attacked. As a part of this argument it is contended that to require hotels and inns to provide the fire escapes called for in *Page 388 this law would necessitate charging guests $2 per day and more. Many decisions of this and other courts are cited to support this contention. Strong reliance is put upon the decision in AtlanticCoast Line Railroad Co. v. State, 135 Ga. 545 (69 S.E. 725, 32 L.R.A. (N.S.) 20), where the act requiring described headlights on locomotives was expressly made inapplicable to tramroads, mill roads, and roads engaged principally in lumber or logging transportation in connection with the mills. That decision sustained the law as against the attack that the classification was arbitrary and offended the Constitution, but this court there pointed out that the exempted roads did not serve the public, and that their operation without the required lights was not as dangerous as the danger attending the operation of ordinary railroads doing a general passenger and freight business for the public, and that this difference was a valid basis for the classification. An examination of all the cases relied upon by the State will, as stated above, disclose that in rendering them the court found a difference relating to the purpose of the legislation as a basis upon which the classification was sustained. The amount charged the guests having no conceivable relation to the danger of fire, to avoid which is the sole purpose of the law, the classification here is arbitrary, rendering the law unconstitutional. Accordingly, the court erred in overruling the demurrer.
Judgment reversed. Jenkins, C. J., Wyatt, Head, and Candler,JJ., and Boykin, Judge, concur. Bell, J., dissents.