Opinion
13403.
SEPTEMBER 24, 1940. REHEARING DENIED OCTOBER 15, 1940.
Petition for injunction. Before Judge Pomeroy. Fulton superior court. April 4, 1940.
F. Joe Turner, for plaintiffs.
J. C. Savage, J. C. Murphy, Edwin L. Sterne, and F. A. Hooper Jr., for defendants.
The facts in this case bring it well within the general rule that courts of equity will not enjoin a criminal prosecution. No such property rights are alleged as would take the case out of the general rule. The judgment sustaining the demurrer to the petition is affirmed.
No. 13403. SEPTEMBER 24, 1940. REHEARING DENIED OCTOBER 15, 1940.
The plaintiffs sought an injunction against defendants, alleging, that two ordinances adopted by the City of Atlanta attempting to regulate barbers and the barber trade by fixing a minimum price that must be charged for barber services, and imposing a fine or imprisonment as a penalty for violating the ordinances, are unconstitutional and void, for many reasons; and that the plaintiffs have been arrested by an officer of the City of Atlanta upon charges of cutting prices below those fixed by the city ordinance, and have been ordered to appear in court for trial on such charges. The prayers are for judgment decreeing the ordinances unconstitutional, and that each defendant be enjoined from further molesting plaintiffs in any alleged attempt to enforce said ordinances, and from further prosecuting them under said ordinances until further order of the court. By amendment it was alleged that plaintiffs have been licensed to do barber work under State law, and have a financial interest in the franchise from the State, which interest is freedom to work at their trade as barbers; that they have investments in barber-shop supplies and in leases and ownership of the premises occupied by their shops; that interference has actually been made with their person and property by arrest and imprisonment under the guise of enforcing the ordinances; and that further interference is threatened by further arrests, which will result in the destruction of their franchise from the State, their labor, and the good will which they have established, as well as their good name as law-abiding citizens, and the value of their equipment. The exception is to a judgment sustaining a general demurrer to the petition.
"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. This rule has been applied to municipal ordinances. Phillips v. Stone Mountain, 61 Ga. 386; Garrison v. Atlanta, 68 Ga. 64; Pope v. Savannah, 74 Ga. 365; Mayor c. of Moultrie v. Patterson, 109 Ga. 370 ( 34 S.E. 600); City of Bainbridge v. Reynolds, 111 Ga. 758 ( 36 S.E. 935); Salter v. Columbus, 125 Ga. 96 ( 54 S.E. 74); Mayor c. of Shellman v. Saxon, 134 Ga. 29 ( 67 S.E. 438, 27 L.R.A. (N.S.) 452) ; Mayor c. of Jonesboro v. Central of Georgia Ry. Co., 134 Ga. 190 ( 67 S.E. 716); Starnes v. Atlanta, 139 Ga. 531 ( 77 S.E. 381); Corley v. Atlanta, 181 Ga. 381 ( 182 S.E. 177); Smith v. Carlton, 182 Ga. 494 ( 185 S.E. 777); Spur Distributing Co. v. Americus, post. While it has been held that this rule does not apply where it is evident that criminal proceedings directly threaten private property ( Georgia Railroad Banking Co. v. Atlanta, 118 Ga. 486 (7), 45 S.E. 256); City of Macon v. Samples, 167 Ga. 150 (2), 145 S.E. 57; Southeastern Greyhound Lines Inc. v. Atlanta, 177 Ga. 181, 170 S.E. 43; Walker v. Carrollton, 187 Ga. 237, 200 S.E. 268; Great Atlantic Pacific Tea Co. v. Columbus, 189 Ga. 458, 6 S.E.2d 320), yet in such cases injunction was allowed not for the purpose of preventing criminal prosecutions as such, but for the protection of property. The reasons assigned by plaintiffs in the present case why equity should intervene are reasons that practically any one charged with crime might truly assign for seeking equitable relief. Necessarily arrest and imprisonment deprives one of the right to work, the income from his labor, the use of his property, and the conduct of his business, and might reflect unfavorably upon his reputation as a law-abiding citizen; but his proper remedy, and an adequate remedy, is a defense on the trial of such criminal case. To permit an injunction of the criminal case for these reasons would nullify the statute (Code, § 55-102). The primary purpose of the petition is to enjoin criminal prosecutions, and for this reason it was properly dismissed on demurrer.
Judgment affirmed. All the Justices concur, except Atkinson, P. J., who dissents.