Opinion
17307.
JANUARY 9, 1951.
Injunction. Before Judge West. Clarke Superior Court.
James Barrow, for plaintiff in error.
Carlisle Cobb, Rupert A. Brown, and Edwin H. Fortson, contra.
1. "Equity will take no part in the administration of the criminal law. It will neither aid criminal courts in the exercise of their jurisdiction, nor will it restrain or obstruct them." Code, § 55-102. The same rule applies in quasi-criminal proceedings; and prosecutions for violations of municipal ordinances, which are punishable by fine or imprisonment, are of that nature. Mayor c. of Shellman v. Saxon, 134 Ga. 29, 32 ( 67 S.E. 438); Starnes v. City of Atlanta, 139 Ga. 531 ( 77 S.E. 381). In several prior cases involving applications for injunctive relief, which were brought for the primary purpose of preventing further injury to property and property rights, but where penal prosecutions were incidentally involved, this court has held that, because of the pleaded special facts, the rule here announced was not applicable there. Among the more recent of these cases are Great Atlantic Pacific Tea Co. v. City of Columbus, 189 Ga. 458 ( 6 S.E.2d 320); City of Albany v. Lippitt, 191 Ga. 756 ( 13 S.E.2d 807); Braddy v. City of Macon, 194 Ga. 871 ( 22 S.E.2d 801); New Mission Baptist Church v. City of Atlanta, 200 Ga. 518 ( 37 S.E.2d 377); Moultrie Milk Shed v. City of Cairo, 206 Ga. 348 ( 57 S.E.2d 199). However, those cases are because of their special facts clearly distinguishable from the present case, and it would serve no useful purpose in this opinion to point out again the pleaded facts which took them from under the operation of the rule, namely, that equity will take no part in the administration of the criminal law; but it is sufficient to say that they are neither in conflict with the rule, nor an exception to it.
2. A threat to arrest and prosecute the plaintiffs and their employees for any future violation of a municipal ordinance, alleged to be null and void because in conflict with the statute of 1941 (Ga. L. 1941, p. 526), being a mere apprehension of injury to property or property rights, will not authorize the grant of an injunction. Paulk v. Sycamore, 104 Ga. 24 ( 30 S.E. 417, 41 L.R.A. 772, 69 Am. St. R. 128); Candler v. City of Atlanta, 178 Ga. 661 ( 174 S.E. 129); West v. Chastain, 186 Ga. 667 ( 198 S.E. 736); Winchester v. City of Gainesville, 193 Ga. 33 ( 17 S.E.2d 66); Deaton v. Mayor c. of Tallapoosa, 200 Ga. 632 ( 38 S.E.2d 284); Wallace v. City of Atlanta, 200 Ga. 749 ( 38 S.E.2d 596); City of Nashville v. Snow, 204 Ga. 371 ( 49 S.E.2d 808); City of Brunswick v. Anderson, 204 Ga. 515 ( 50 S.E.2d 337); Associated Cab Co. v. City of Atlanta, 204 Ga. 591 ( 50 S.E.2d 601); Moore v. City of Tifton, 204 Ga. 599 ( 50 S.E.2d 595); City of Tifton v. Cooper, 206 Ga. 379 ( 57 S.E.2d 196). In other words, equity will not intervene for the purpose of protecting property or property rights until some overt act has been committed which injuriously affects the same; and this is well settled by the cases cited above. The words of the Master, uttered centuries ago, are applicable here: "Sufficient unto the day is the evil thereof." Matthew, 6:34.
3. Where a court of equity does not have jurisdiction, it will not assume jurisdiction for the purpose, as in this case, of inquiring into the validity of a municipal ordinance. City of Douglas v. South Georgia Grocery Co., 178 Ga. 657 ( 174 S.E. 127); City of Brunswick v. Anderson, supra.
4. Under the above principles, the petition in the instant case did not state a cause of action for the equitable relief prayed. Consequently, it should have been dismissed on the general demurrer interposed thereto; and, since for that reason all further proceedings taken in the case were nugatory, it is unnecessary to rule on the other assignments of error.
Judgment reversed. All the Justices concur.
No. 17307. JANUARY 9, 1951.
August 26, 1950.
On February 7, 1950, the Mayor and Council of the City of Athens adopted an ordinance regulating the use of its streets for taxicab business, and providing for the issuance of taxicab permits. Section 23 (d) of the ordinance was repealed on August 8, 1950, and, in lieu thereof, it was ordained: "No driver, owner or operator of a taxicab shall solicit passengers on a route officially designated by the City of Athens as a bus route; nor shall any driver, owner or operator of a taxicab accept any passenger on such bus route except in answer to a telephone call from such passenger requesting such service; nor shall any driver, owner or operator of any vehicle whatever stop for any reason within an officially designated bus stop area; provided, however, that the provisions of this subsection shall be inapplicable during hours when the city bus system is not in operation."
On August 10, 1950, Co-Op Cab Company, a corporation, C. H. Settle and Fred Smith, doing business under the name and style of Veteran's Cab Company, and W. W. Brooks, an individual, brought an action in the Superior Court of Clarke County against the Mayor and Council of the City of Athens for equitable relief. In substance, their joint petition alleged: The petitioners, other than W. W. Brooks, have a permit to operate and are operating a taxicab business in the City of Athens. They have large sums of money invested in their respective businesses. If the city's amended ordinance is enforced, their respective taxicab businesses will be seriously impaired and, as a result therefrom, they will each suffer a great property loss. The city's ordinance, as amended, is null and void because it is in conflict with a general law passed by the legislature in 1941 regulating the operation of taxicabs in the several municipalities of this State. (Ga. L. 1941, p. 526, Code, Ann. Supp., §§ 68-635, 68-636, 68-637, 68-9922, 68-9923). Obedience to the city's amended ordinance by these petitioners, if it is enforced, will, under the provisions of the act of 1941, subject them and the drivers of their taxicabs to damages, suspension of their chauffeur's license by the Georgia Department of Public Safety, and to penal prosecutions in the courts of this State; and as a consequence these petitioners will lose much of their present taxicab patronage. The other petitioner, W. W. Brooks, is a citizen and taxpayer of the City of Athens and a frequent user of taxicabs. As such, he has a right to contract with taxicab drivers for transportation and, if the city's amended ordinance is enforced, he will be wrongfully deprived of his legal right to use taxicabs as a means of transportation. The City of Athens has instructed its police officers to enforce the provisions of the ordinance in question by arresting and making cases against those who violate it. A great many cases will be made for violations of the ordinance, and it will be necessary for the offenders to defend themselves in the recorder's court and apply for the writ of certiorari when the decision of that court is adverse to them. It was also alleged that the petitioners have no adequate remedy at law. Waiving discovery, the prayers of the petition were: 1. For process. 2. That the ordinance in question be declared null and void. 3. That the defendant be enjoined, temporarily and permanently, from enforcing the ordinance through arrests and by prosecutions. 4. For general relief. A general demurrer — which challenged the sufficiency of the petition to state a cause of action for any of the relief sought, and upon the further ground that it shows upon its face that the petitioners have an adequate and complete remedy at law — was overruled and that judgment is properly excepted to. The substantial allegations of the petition were denied by the answer. The parties submitted their evidence, and the trial judge afterwards granted the temporary injunction prayed for. The defendant excepted also to that judgment and sued out a writ of error to this court.