Under the pleadings and the evidence in this case, the trial court did not abuse its discretion in granting an interlocutory injunction.

No. 17295. JANUARY 8, 1951.

On August 2, 1950, L. C. Minton and others filed in Fulton Superior Court, against the City of East Point, and its Chief of Police, a petition which alleged substantially the following: Petitioner Minton owns the fee-simple title to 9 acres of land and operates thereon a trailer park, known as East Point Trailer Park. On February 18, 1946, the mayor and council, realizing that there was an acute housing shortage in the city, co-operated with Minton in the construction of the trailer park by furnishing water, electricity, sewerage, and in laying out streets and pants. Minton expended approximately $20,000 in establishing the trailer park, which was made available to trailer owners in October, 1946, and it has been continuously used as such ever since. All of the petitioners, except Minton, are residents and taxpayers of the city, and are owners of and reside in house-trailers located at the trailer park. These petitioners were induced to purchase house-trailers, at an average cost of from $2500 to $6000 each, for their respective residences by the acts and conduct of the governing authorities of the city, in causing the trailer park to be established, which acts amounted to an invitation for them to do so. Petitioners, in addition to purchasing the trailers, went to considerable expense in moving the trailers to the lot, connecting them with necessary facilities, making concrete platforms or landings at the entrance to the trailers, planting shrubbery and flowers, and otherwise beautifying the ground on which the same are located. The trailer park has been at all times operated in accordance with the health and sanitation laws of the city and no complaint from such authorities has ever been made about its operation. Petitioners have been at all times law-abiding and peaceable citizens and residents of the city, permanently residing at the trailer park, and have at all times maintained at the trailer park a proper moral and spiritual atmosphere becoming to residents of a Christian community. At the time the trailer park was established, it was some distance from any residence and out of sight of all houses except perhaps one, and the location was selected as a suitable place for said purpose. The trailer park was operated continuously without objection until the street on which the lot abuts was paved and some houses were built adjacent thereto and to the facilities of the trailer park, at which time some of the governing authorities of the city began an effort to prevent the property from being used as a trailer park. On July 17, 1950, the mayor and council adopted an ordinance, which among other things made it unlawful for any new tenants to move on the lot, and, after the expiration of 60 days from the passage of the ordinance, made it unlawful for anyone to continue using any trailer as a residence. Since the adoption of the ordinance, the police department of the city has made repeated arrests and cases against Minton for permitting house-trailers to enter the trailer park, and against house-trailer owners for moving on or attempting to move on the trailer park, and has been and is threatening petitioners and other house-trailer owners with repeated and continued arrests for violating the provisions of the ordinance. Minton, who is the sole owner of the trailer park, is thereby deprived of the lawful use of his property and is suffering irreparable injury to the same on account of the acts and conduct of the defendants. Defendants have notified petitioners who own and occupy house-trailers that, unless they move their trailers from the park on or before September 17, 1950, they will be arrested and prosecuted for violating the provisions of the ordinance, and petitioners will be denied the use of water, lights, electricity, sewerage, and other facilities by the city. There is still an acute shortage of houses in the city, and petitioners consider the price of houses to be excessive and beyond their ability to purchase; and, unless defendants are enjoined from enforcing the ordinance, petitioners will either be subjected to repeated arrests and prosecutions, or be compelled to remove beyond the limits of the city and away from their work, stores, churches, and schools, and will be thereby deprived of their citizenship in the city. The various provisions of the ordinance, made applicable to petitioners by the express terms thereof, are violative of designated provisions of the State and Federal Constitutions, and are arbitrary and unjust. Unless defendants are enjoined from attempting to enforce the ordinance, they will subject petitioners to repeated prosecutions and arrests and will continue to interfere with Minton and his patrons and each and all of the other petitioners who remain in the trailer park, by threatening them with arrest and prosecution for operating and patronizing the trailer park, all of which acts will cause petitioners to suffer the loss of their investments and cause Minton to lose his business as owner and operator of the trailer park. Unless enjoined, the defendants will cut off the water, lights, sewerage, and other facilities at the trailer park, and will thereby deny the petitioners the use of services and facilities that are necessary to make living conditions possible and will create such unsanitary and unhealthful conditions as to jeopardize the life and health of petitioners and other citizens of the city. Petitioners have no adequate remedy at law, and unless a court of equity intervenes, they will suffer irreparable injury, and a multiplicity of suits and circuity of actions will result. A copy of the ordinance was attached to and made a part of the petition.

The prayers, besides for process and a rule nisi, were: that the ordinance, and particularly each and every section thereof applicable to petitioners respectively, be declared unconstitutional, unreasonable, arbitrary, null and void; that the defendants be temporarily restrained and permanently enjoined from attempting to enforce the same and from interfering with petitioners in the operation and use of the trailer park, and from arresting or prosecuting petitioners for violating the ordinance, and from cutting off or denying them services of water, light, electricity, sewerage, or other facilities now used and enjoyed by them, or in any manner preventing them from the otherwise peaceable and lawful use and occupancy of the trailer park; and that petitioners have such further relief as may be equitable and proper.

The defendants, subject to their demurrers (which were not specified in the bill of exceptions as material to a clear understanding of the errors complained of and so far as appears there was no ruling thereon), filed an answer. The answer as amended denied material allegations of the petition and averred among other things: On October 26, 1939, the city, under and by virtue of an act (Ga. L. 1939, p. 1018), which was authorized by an amendment of the Georgia Constitution of 1877 (Code, Ann., § 2-1826) adopted a zoning ordinance dividing the city into dwelling-house, apartment-house, business, and industrial districts. The tract of land owned by Minton is an area which was restricted for residential purposes. Section 10 of the zoning ordinance authorized temporary permits for not more than two-year periods for structures and uses that did not conform to the regulations prescribed in the ordinance; and, due to a housing shortage, the zoning and planning commission on April 25, 1946, adopted a resolution favoring the use by trailers of the lot in question as a temporary measure. Thereafter the trailer-park operators sought to obtain the right to use the lot permanently as a trailer park, whereupon home owners filed complaints with the city council. The trailers used as living quarters are not permanent stationary residences within the meaning of the zoning ordinance, and the permission for the temporary use of the lot, granted in April, 1946, has expired. The lot is being used in violation of the zoning ordinance, and the trailers are being unlawfully used and kept thereon. The housing shortage does not exist any more, and the Federal control of rent in the city was recently lifted. The ordinance mentioned in the petition was adopted by the council on July 17, 1950, and in addition thereto, the city adopted two other ordinances, one making it unlawful for any officer or employee of the city to be engaged in the operation of a trailer park, and the other requiring trailer-park operators to file certain information with the city. Minton has failed and refused to file the reports therein called for, or to discontinue accepting new patrons on the trailer park. The cases made against Minton were made under the ordinance of July 7, 1950, as well as the ordinance of July 17, 1950, which was attacked by petitioners.

The evidence for the petitioners consisted of their verified petition, certain excerpts from the minutes of council authorizing the trailer park to be established, copies of various charges brought by the city against Minton and occupants who had moved on the trailer park after passage of the ordinances of July 17, 1950, affidavits by occupants concerning the circumstances under which they entered upon the premises and tending to support the allegations of the petition, and an affidavit by Minton that he had furnished all reports required by the ordinance of July 7, 1950.

The evidence for the defendants consisted of their verified answer as amended, copy of the zoning ordinance of October 26, 1939, copy of resolution of council to the effect that no housing shortage now exists, an affidavit by the city clerk identifying a zoning map, and a copy of said map.

The trial court granted an interlocutory injunction restraining the defendants from prosecuting said cases and from making any other cases or prosecutions under the ordinance of July 17, 1950. The defendants excepted.

ATKINSON, Presiding Justice. (After stating the foregoing facts.)

"Equity will not enjoin a criminal prosecution solely to prevent such a prosecution, but it will in any proper case, by injunction or otherwise, prevent injury or destruction of property." Great Atlantic and Pacific Tea Co. v. City of Columbus, 189 Ga. 458 (1), 464 ( 6 S.E.2d 320), and cases cited; City of Albany v. Lippitt, 191 Ga. 756 (1) ( 13 S.E.2d 807); Chandler v. City of Tifton, 206 Ga. 43 (4) ( 55 S.E.2d 568). The pleadings and evidence in the present case, showing that the defendants, in addition to making numerous cases against Minton, had arrested new tenants attempting to move on the trailer park, and had threatened to institute criminal prosecutions against any of the petitioners who remained on the lot after the expiration of the 60 days referred to in the ordinance of July 17, 1950, were sufficient to authorize a court of equity to intervene.

While the bill of exceptions recites that "the court ruled that the only ordinance of which determination of the constitutionality was necessary to a determination of the issue in said case and that would be dealt with by the court in its judgment, was the ordinance of July 17, 1950," yet, neither the bill of exceptions, nor the judgment granting a temporary injunction, shows which if any of the provisions of the ordinance in question were held to be unconstitutional. Under a proper construction of the record as presented, the trial court merely granted an interlocutory injunction until the demurrers could be passed upon, and the case could be considered on the final hearing.

It is insisted that the undisputed evidence showed that Minton did not have a legal right to operate the trailer park, because the area on which it was located had previously been zoned for residential purposes by an ordinance duly adopted on October 26, 1939. The sole assignment of error is: "To which judgment granting said temporary injunction and enjoining the defendants, the defendants . . then and there excepted, and now except, and assign the same as error as being contrary to law, and say that the said judge then and there should have refused said injunction." In injunction cases, where the question usually is whether a judge abused his discretion in granting or refusing the writ, general assignments of error have been held sufficient to withstand a motion to dismiss. Anderson v. Newton, 123 Ga. 512 ( 51 S.E. 508); Peginis v. City of Atlanta, 132 Ga. 302 ( 63 S.E. 857). But in such cases, under a general assignment alone, special questions, "not shown to have been passed on, do not arise for decision." Patterson v. Beck, 133 Ga. 701, 707 ( 66 S.E. 911). Since it appears from the record that the trial court did not pass upon the effect of the prior zoning ordinance, no such question is now presented for decision.

Counsel for the city finally state in their brief: If the "court is of the opinion that the case is one of conflicting evidence, of which the grant or refusal of a temporary injunction was discretionary with the trial court, and so holds, then the defendants will have suffered no injury, as they will not be cut off from their day in court on the issue of estoppel on the trial." The evidence was conflicting on the issue of whether a housing shortage still existed, and whether Minton had given reports required by the ordinance adopted July 7, 1950. "In the grant or refusal of interlocutory injunctions, the trial judge is vested with a wide discretion, which will not be controlled by this court unless abused." Verner v. DeKalb County, 207 Ga. 436 (2) ( 61 S.E.2d 921).

Applying the foregoing principles to the pleadings and evidence, the trial court did not abuse its discretion in granting a temporary injunction.

All such questions, as whether the defendants were estopped from enforcing the 1939 zoning ordinance, and which, if any, of the provisions of the ordinance of July 17, 1950, are violative of the State or Federal Constitution, are expressly left open for determination by the court below on the final trial of this case.

Judgment affirmed. All the Justices concur.