Opinion
14909.
JULY 10, 1944.
Injunction. Before Judge Humphrey. Toombs superior court. April 17, 1944.
C. T. McCorkle and T. Ross Sharpe, for plaintiff in error.
W. H. Lanier and B. P. Jackson, contra.
Proceedings to abate a nuisance, public or private, alleged to exist within an incorporated municipality, must be filed with and determined by the municipal authorities, unless there are special circumstances, requiring the intervention of equity.
No. 14909. JULY 10, 1944.
This petition was brought by W. L. Lanier as solicitor-general of the Middle judicial circuit of Georgia on information filed by five named individuals, who are members of the city council of Vidalia, a municipal corporation, and are all the councilmen of said city. The petition named twenty-four defendants, and alleged that these defendants, either as owners of the places of business or as owners of the machines, "are and have been for some time in the immediate past unlawfully keeping, maintaining, employing, and carrying on a certain scheme and device for the hazarding of money or other valuable thing, such scheme or device commonly known as slot machines." The operation of said machines is alleged to be "in violation of the criminal statutes of the State of Georgia;" and "the operation of such machines and devices as hereinbefore set out constitutes a public nuisance." The petition was amended "by striking from the petition the names of all . . parties defendant except the name of L. L. Waller, so that the case may proceed henceforth against L. L. Waller only . . . The said slot machines are maintained and operated by the defendant L. L. Waller in the Union bus station in the City of Vidalia, and in so doing he is maintaining and operating a gaming house in violation of a criminal statute of this State. . . The remedy provided by law for the abatement of nuisances in municipalities is inadequate for the reason that the present mayor of the City of Vidalia, if not in sympathy with the slot-machine operators, fails to co-operate with the members of the city council in their effort to do away with them . . for a time said mayor placed such machines in places of business of his; the council . . passed a resolution to do away with the slot machines . . and said mayor vetoed the resolution. There is no mayor pro tem." The prayer was for an injunction.
The defendant in the court below, now the plaintiff in error, filed his demurrer, designated as a plea to the jurisdiction, contending that the exclusive jurisdiction to hear and determine the question raised was lodged in the Mayor and City council of the City of Vidalia, and not in the superior court of Toombs County or in the judge of said court. The petition was demurred to on the ground that no cause of action was alleged, and on the ground of jurisdiction. The plea to the jurisdiction and the demurrer were overruled, and exceptions pendente lite were duly filed. After hearing evidence, the judge enjoined the defendant, as prayed.
The bill of exceptions assigns error on the judgment overruling the plea to the jurisdiction and demurrer. The exception to the judgment enjoining the defendant simply raises the question that no evidence should have been heard, since the question was only one of law. Therefore no question is raised as to the sufficiency of the evidence.
"If a nuisance complained of shall exist in a town or city under the government of a mayor, intendant, aldermen, wardens, or a common council or commissioners, such nuisance, by and with the advice of said aldermen, wardens, council, or commissioners, may be abated and removed by order of said mayor, intendant, or commissioners; but if the nuisance complained of shall exist in a city having a population of 20,000 or more, the police court of such city, whether known as mayor's or recorder's court or otherwise designated, shall have jurisdiction to hear and determine the question of the existence of such nuisance, and, if found to exist, to order its abatement, which order shall be directed to and executed by the sheriff or the marshal of said town or city, or his deputy." Code, § 72-401. This court has recognized certain exceptions to the rule laid down in the above-quoted Code section, and under the circumstances of these cases, has held that equity will take jurisdiction. We will refer to some of these decisions. In Mayor Council of Columbus v. Jaques, 30 Ga. 506, the municipality itself was a party, and for that reason equity assumed jurisdiction. In Williamson v. Souther, 172 Ga. 364 ( 157 S.E. 463), equity assumed jurisdiction because the city had accepted dedication of the land on which the street in controversy was located, and therefore was an interested party. Hill v. McBurney Oil Fertilizer Co., 112 Ga. 788 ( 38 S.E. 42, 52 L.R.A. 398), was a case in which, "it appears that a majority of a town council are disqualified by reason of removal from town, interest in the case, or relationship to the parties," and equity assumed jurisdiction. In Calhoun v. Gulf Oil Corporation, 189 Ga. 414 ( 5 S.E.2d 902), it was held that the plaintiff had waived the disqualification of the city authorities by voluntarily submitting the question for their consideration. City of Blue Ridge v. Kiker, 189 Ga. 717 ( 7 S.E.2d 237), dealt with a nuisance which the city itself maintained, and equity assumed jurisdiction. In the instant case, no reason is offered why the city authorities were disqualified, other than the contention to the effect that the mayor was in sympathy with the operators of the slot machines. The city is governed by a mayor and five councilmen; and surely it can not be contended that simply because the mayor, one out of six, has views not in harmony with the other five members of the governing body, the city authorities are disqualified, and for that reason equity will assume jurisdiction. We do not think this position tenable.
It is further contended that equity should assume jurisdiction because the alleged nuisance is a public nuisance. The Code section first cited in this opinion makes no such distinction. "To abate a nuisance, public or private, the remedy provided in the Code, § 4094-9 [now § 72-401] should be resorted to, unless the special facts make that remedy inadequate." Broomhead v. Grant, 83 Ga. 451. See Spencer v. Tumlin, 155 Ga. 341 ( 116 S.E. 600). "If the nuisance was a public one merely, and no private individual suffered special damages therefrom, then the proceedings to abate the same should have been in the name of the city, acting either upon the motion of the corporate body itself, or in the name of the city upon the application of some citizen." Trust Company of Ga. v. Ray, 125 Ga. 485, 486 ( 54 S.E. 145).
We conclude that the Code section first cited in this opinion means what it says, and that when proceedings to abate a nuisance, public or private, alleged to exist within an incorporated municipality, are brought, the proper forum is the municipal authorities, unless there are special circumstances, requiring the intervention of equity. No such special circumstances are here alleged. Rose Theatre v. Lilly, 185 Ga. 53 ( 193 S.E. 866); Atkinson v. Lam Amusement Co., 185 Ga. 379 ( 195 S.E. 156), and Rosser v. Lam Amusement Co., 185 Ga. 725 ( 196 S.E. 404), are all cases in which it was sought simply to enjoin the operation of moving-picture shows on the Sabbath day only, a perfectly legitimate business on other days. There was no effort to permanently abate the operation of picture shows as a public nuisance, but simply to enjoin the defendants from operating them on the Sabbath day; hence equity assumed jurisdiction. The instant case is a proceeding to generally and permanently abate the thing complained about, slot machines, as a public nuisance on all days and at all times, and does not fall within the rule laid down in the picture-show cases.
The demurrer, designated as a plea to the jurisdiction, having been erroneously overruled, all that thereafter followed was nugatory.
Judgment reversed. All the Justices concur.