Opinion
17902.
SUBMITTED JUNE 9, 1952.
DECIDED JULY 15, 1952.
Petition for injunction. Before judge Forehand. Irwin Superior Court. April 9, 1952.
McDonald McDonald, for plaintiff in error.
W. R. Mixon, contra.
The petition set forth a cause of action to enjoin the defendants from interfering with the erection of a filling station by the petitioner, and the trial court erred in sustaining the defendants' general grounds of demurrer and in dismissing the action.
No. 17902. SUBMITTED JUNE 9, 1952 — DECIDED JULY 15, 1952.
W. H. Tucker filed in Irwin Superior Court, against the City of Ocilla and its Mayor, and Members of Council, a petition which alleged substantially the following: Petitioner is the owner of designated city lots, and has carried on a wholesale petroleum business thereon since 1944. On April 2, 1946, the mayor and council adopted a zoning ordinance based on the act (Ga. L. 1946, p. 191; Code, Ann. Supp., § 69-801 et seq.) conferring on municipalities generally the right to pass zoning ordinances. On September 24, 1951, petitioner was given a building permit to erect a filling station on his property. Immediately after obtaining the permit, he began to stake out his building and lay a foundation. Thereafter, without any hearing being given to petitioner, the city notified him that his application for a building permit had been reviewed by the mayor and council and that the same had been denied. Petitioner was informed by the municipal authorities that he would not only be prosecuted every day he continued with the erection of the filling station, but that in addition thereto any building he might erect would be dismantled and torn down. The ordinance adopted on April 2, 1946, is the only ordinance of the city which attempts to appoint a zoning board. The purported zoning ordinance is void because it does not comply with various stated provisions of the act of 1946, supra, and therefore no lawful zoning board has been designated by the municipality. The petitioner prayed among other things: That the defendants be enjoined from interfering with the erection of the filling station by the petitioner, from making cases against him for alleged violation of the zoning ordinance, and from carrying out their threats to enter upon the property and dismantle the building; that the ordinance be declared to be void and of no effect; and for general relief.
A demurrer on general grounds was interposed to the petition. The trial court sustained the general grounds of demurrer, and dismissed the action. The petitioner excepted.
A filling station does not constitute a nuisance per se. Rushing v. Thigpen, 200 Ga. 313 (2) ( 37 S.E.2d 180), and citations.
Section 3 of the act (Ga. L. 1946, p. 191; Code, Ann. Supp., § 69-803) provides in part: "In each municipality in which the governing authority undertakes to exercise the powers conferred in this Chapter such authority shall appoint a board of not less than three or more than seven members to be known as the Municipal Planning Board. . . Any citizen of the municipality may be appointed to membership on the board except members of the municipal governing authority." Section 1 of the zoning ordinance, which was adopted in virtue of the above act, provides: "That a standing committee to be known as the `Zoning Committee' is hereby created, the same to be comprised of three members of the council and to be appointed by the Mayor as other members of standing committees are appointed."
The petition alleged that, in pursuance of the ordinance, the mayor appointed three persons, all of whom at the time were and now are aldermen of the city. Accordingly, taking the allegations of the petition to be true, as must be done on general demurrer, the ordinance was void in that it was in direct conflict with section 3 of the act of 1946, supra, and therefore no lawful zoning committee or board was designated by the municipality.
Counsel for the defendants insist, however, that, if the zoning ordinance was void, the petitioner had an adequate and complete remedy at law, namely, mandamus. There is no merit in this insistence. "If the ordinance was void as alleged in the petition, the defendants could not be required by mandamus to perform any alleged official duty under it." Adams v. Johnson, 182 Ga. 478 ( 185 S.E. 805). Nor did the case as made by the petition come within the rule that equity will not enjoin a criminal prosecution for the reason that the petition alleged that, unless enjoined, the defendants would, as they threatened to do, enter upon the plaintiff's property and tear down and dismantle any building constructed by him thereon, thus interfering with the property rights of the plaintiff. New Mission Baptist Church v. City of Atlanta, 200 Ga. 518 (3) ( 37 S.E.2d 377); City of Albany v. Lippitt, 191 Ga. 756 ( 13 S.E.2d 807).
"A general demurrer to a petition will not be sustained if the facts entitle the plaintiff to any of the substantial relief prayed." Arteaga v. Arteaga, 169 Ga. 595 (4) ( 151 S.E. 5). Applying this principle — the petition set forth a cause of action to enjoin the defendants from interfering with the erection of a filling station by the petitioner, and the trial court erred in sustaining the defendants' general grounds of demurrer, and in dismissing the action.
Judgment reversed. All the Justices concur.