Opinion
16726.
SEPTEMBER 13, 1949.
Mandamus. Before Judge E. R. Smith. Atkinson Superior Court. May 4, 1949.
L. A. Hargreaves, M. D. Dickerson, and Gibson Maddox, for plaintiff in error.
Franklin, Eberhardt Barham, contra.
1. The petition as amended set forth a cause of action for a mandamus absolute to require the defendants to issue a building permit for the construction of an office and gum platform, and the trial court did not err, for any reason assigned, in overruling the defendants' general grounds of demurrer.
2. Evidence that a named person offered to lease an old turpentine still to an agent, whose authority was limited to buying gum on a commission basis for the petitioner, was immaterial to any issue in the case, and the trial court did not err in excluding the same for any reason assigned.
3. The uncontradicted evidence showing that the city authorities rejected the application for a building permit on the sole ground that the land was restricted for residential purposes, but such restriction was based on a void zoning ordinance, a finding was demanded that the petitioner was entitled to the permit, and the court did not err in directing the jury to return such a verdict.
No. 16726. SEPTEMBER 13, 1949.
The Glidden Company, a corporation, filed in Atkinson Superior Court, against the City of Pearson and its Mayor, Clerk, and members of Council, a petition for mandamus which as twice amended alleged substantially the following: On September 11, 1945, the mayor and council adopted an ordinance which provided among other things that it should be unlawful to erect any building within the city without the approval of the building committee, and further that no business structures should be erected on designated streets. On December 10, 1946, the mayor and council adopted another ordinance which provided that it should be unlawful to erect any buildings within the city without submitting the plans for such structure to the city council and receiving from them a permit in writing, authorizing the erection of the same. On April 13, 1948, the petitioner was the owner of a leasehold estate in described property under a five-year lease. The petitioner negotiated the lease for the purpose of constructing an office and gum platform to be used in the purchase of crude gum, which is a legitimate business. On the date last mentioned the petitioner presented to the building committee, and to the entire mayor and council, an application for a building permit. The city authorities rejected the application on the ground that the property in question was restricted under the ordinance of September 11, 1945, to residential uses. Under the practices of the city, building permits are issued by the city clerk upon instructions from the building committee or from the mayor and council as a whole. After the action of the building committee and of the mayor and council, the city clerk declined to issue to the petitioner any building permit. The city has never been granted authority by the General Assembly to enact zoning or planning ordinances. The ordinance of September 11, 1945, is violative of the State and Federal Constitutions for stated reasons. Having made application in due form and in compliance with the ordinances of September 11, 1945, and December 10, 1946, the petitioner is entitled to have a building permit issued to it for the construction of the office and gum platform described in the plans and specifications attached to the application. Unless the defendants are required to issue a building permit, the petitioner will suffer pecuniary loss for which it cannot be compensated in damages, for the reason that the petitioner expects to engage in the business at said location of buying crude gum, and there is no means by which the amount of profit which it will make in the conduct of said business would be ascertainable. The petitioner has paid the rental for the entire five-year period covered by the lease. If a permit to build the office and gum platform is denied the petitioner, it will lose the rentals thus paid, and it is already suffering a loss of a portion of such rentals each day that a delay occurs in the granting of the permit, and is suffering a loss of profits that it might make in the operation of its business. The city authorities are under a legal duty to issue a permit to the petitioner. In rejecting the petitioner's application for a building permit, the city authorities, if vested with any discretion in the matter, have grossly abused such discretion, and have acted in an unlawful, arbitrary, and unconstitutional manner. Unless the city authorities are required to issue a building permit, a defect of legal justice will ensue, and there is no specific legal remedy available to the petitioner other than that of mandamus. The petitioner prayed: that the court decree the ordinance of September 11, 1945, to be unconstitutional and void, and that the action of the city authorities in denying a building permit be decreed to be illegal; that the court issue a mandamus nisi directed to the city and to its governing authorities, requiring them to show cause why a mandamus should not be issued requiring them to issue a building permit; that on the hearing the mandamus be made absolute; and for process.
A demurrer on general and special grounds was interposed to the petition as amended. The trial court overruled the general grounds of demurrer. Certain special grounds were overruled, and other special grounds were sustained. Exceptions pendente lite were filed by one of the defendants, assigning error on the overruling of its general demurrer.
At the trial there was evidence to the following effect: The city authorities rejected the application for a permit for the erection of a gum platform because the land in question was restricted for residential uses; the mayor and council offered to assist the petitioner in finding another location for the gum platform; the petitioner leased another place in the city, but could not make permanent improvements, since the lease was only from month to month, and the petitioner was losing money on account of the refusal to issue the permit; there was no way to tell the amount of money which the petitioner was losing; the city authorities had granted permits for the erection of the following buildings in the restricted area, (1) a filling station and garage, (2) an American Legion clubhouse, and (3) a tractor-sales place.
After hearing evidence the trial court directed a verdict in favor of the petitioner. The defendant city's motion for new trial as amended was overruled, and the case comes to this court for review upon its exceptions to that judgment.
1. Prior to the adoption of the Constitution of 1945 (Code, Ann., § 2-1923) the General Assembly had no authority to grant the right to enact zoning or planning laws to any municipalities in this State, other than those specified in the 1928 amendment to the Constitution of 1877 (Code, § 2-1825), which did not include the City of Pearson. See, generally, Smith v. Atlanta, 161 Ga. 769 ( 132 S.E. 66, 54 A.L.R. 1001).
Neither the charter of the City of Pearson nor any act of the General Assembly contradicts the allegation of the petition that the City of Pearson had never been granted authority by the General Assembly to enact zoning laws. Accordingly, taking the allegations of the petition to be true, as must be done on general demurrer, the City of Pearson was without authority to pass a zoning ordinance on September 11, 1945, and the ordinance passed on that date was invalid in so far as it attempted to zone the area in question for residential purposes. Neither was the ordinance of September 11, 1945, authorized under the act (Ga. L. 1946, p. 191; Code, Ann. Supp., § 69-801 et seq.) conferring on municipalities generally the right to pass zoning ordinances, for the reason that such act was not passed until after the adoption of the zoning ordinance.
Counsel for the defendants insist, however, that the petitioner cannot be permitted to take an inconsistent position, in that, if the ordinances under which the defendants are acting are unconstitutional and void, the court cannot grant a writ of mandamus to compel them to act under an unconstitutional ordinance or ordinances. Since the attack here made was on the ordinance passed on September 11, 1945, and not on the ordinance of December 10, 1946, under the terms of which the petitioner sought a building permit, the petition was not subject to demurrer on the ground that the petitioner, while attempting to claim that the ordinances under which the defendants were acting were unconstitutional, was at the same time seeking to compel the defendants to perform an act which was required by the ordinances.
The instant case is distinguished on its facts from Adams v. Johnson, 182 Ga. 478 ( 185 S.E. 805), relied on by the defendants, where only one ordinance was involved. Nor was the petition subject to demurrer on the grounds, (a) that it showed upon its face that the time in which a mandamus absolute might be granted had expired; (b) that the petition fails to state in what way the petitioner would suffer pecuniary loss, and why it cannot be compensated in damages.
The petition as amended set forth a cause of action for a mandamus absolute, and the trial court did not err in overruling the defendants' general grounds of demurrer for any reason assigned.
2. The first special ground of the motion for new trial complains of the exclusion of evidence to the following effect: Tom Smith offered to lease to H. S. Propes an old turpentine still in Pearson next door to the place Propes was operating. Propes purchased gum for the petitioner on a commission basis. He had not been able to buy much gum, as he did not have room enough, and could only rent by the month the place he was already operating. He was on the pay roll of the petitioner as a buying agent, and his authority was limited to buying gum on a commission basis. The petitioner furnished the money. Propes was not authorized to lease any property.
In order for the exclusion of oral testimony to be considered as a ground for a new trial, it must appear that such testimony was material, and would have benefited the complaining party. Griffin v. Henderson, 117 Ga. 382 (2) ( 43 S.E. 712); Crawford v. Gale, 204 Ga. 448 (2) ( 49 S.E.2d 905).
The above evidence in the present case was immaterial to any issue in the case, and the court did not err in excluding the same for any reason assigned.
3. The second special ground complains that the court erred in directing a verdict in favor of the petitioner, since there were questions of fact under the pleadings and evidence which should have been passed on by a jury.
The ordinance of December 10, 1946, was not a zoning or planning ordinance. It simply required that every person who proposed to erect a building within the city should submit his plans to the city authorities and receive from them a permit in writing authorizing the erection of the same. Under an ordinance of this type, when the applicant has complied with all of the requirements of the ordinance, the city authorities are not authorized to decline the permit unless the proposed structure is a nuisance per se. See Burrus v. Columbus, 105 Ga. 42, 46 ( 31 S.E. 124); Simpson v. DuPont Powder Co., 143 Ga. 465, 467 ( 85 S.E. 344); Brown v. Thomasville, 156 Ga. 260 (2) ( 118 S.E. 854); Warren v. Dickson, 185 Ga. 481, 483 (3) ( 195 S.E. 568). Compare McWhorter v. Settle, 202 Ga. 334 (2) ( 43 S.E.2d 247).
The uncontradicted evidence showing that the city authorities rejected the application for a building permit on the sole ground that the land was restricted for residential purposes, but such restriction was based on a void zoning ordinance, a finding was demanded that the petitioner was entitled to the building permit, and the court did not err in directing the jury to return such a verdict. Judgment affirmed. All the Justices concur.