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Ralston Purina Co. v. Acrey

Supreme Court of Georgia
Apr 8, 1965
220 Ga. 788 (Ga. 1965)

Opinion

22880.

ARGUED MARCH 8, 1965.

DECIDED APRIL 8, 1965.

Injunction. Habersham Superior Court. Before Judge Smith.

Kimzey Kimzey, Herbert B. Kimzey, for plaintiff in error.

Jack N. Gunter, contra.


1. (a) Where the petition alleges that the defendant commenced the operations which are sought to be enjoined almost a year and a half after the adoption of a zoning ordinance, the mere possibility that construction of the plant began before the adoption of the zoning ordinance does not amount to an allegation of the existence of a prior nonconforming use allowed by Code Ann. § 69-835.

(b) Since no ground upon which the doctrine of laches might be applied appears affirmatively from the allegations of the petition, it was not subject to general demurrer.

2. Where a general law provides ample authority for cities of the State to pass zoning ordinances, whether a subsequent local law, enacted to clothe a particular city with the same authority, is valid does not affect the power of the city to adopt a zoning ordinance in conformity with the general law.

ARGUED MARCH 8, 1965 — DECIDED APRIL 8, 1965.


Everette H. Acrey, a citizen, property owner and taxpayer of the City of Cornelia, brought this equitable suit in Habersham Superior Court against Ralston Purina Company, Inc., seeking to enjoin the defendant's alleged violation of a zoning ordinance of the City of Cornelia. The petition alleged that the Mayor and City Council of Cornelia adopted the zoning ordinance on June 4, 1962; that the defendant maintains, uses and operates a rendering plant located in an industrial zone within 400 yards of the plaintiff's home which is located in a residential zone; that the defendant completed construction of the rendering plant in November, 1963, and within a few days thereafter commenced operation of the plant; that the defendant has been operating the plant 24 hours a day, five days a week, since commencing; that the defendant daily brings to its plant the offal from approximately 180,000 chickens and processes and reduces the offal by cooking and pulverizing various portions into meal and by rendering it to produce large quantities of fats and oils; that such process gives off offensive and obnoxious odors; that more than 100 dwelling houses are within one-fourth mile of such illegally operated plant and unless equity intervenes a multiplicity of suits will result; that the operation and maintenance of the plant as described is violative of certain portions of the city's zoning ordinance; that the plaintiff has no adequate remedy at law and is entitled under Georgia law and specifically Ga. L. 1946, pp. 191, 202 ( Code Ann. § 69-839), to equitable relief in the form of temporary and permanent injunction.

The pertinent provisions of the zoning ordinance are attached as an exhibit to the petition. The enacting clause sets out that the city commission "deems it necessary in order to lessen congestion in the streets; to secure safety from fire panic and other dangers; to provide adequate light and air; to prevent the overcrowding of land, to avoid undue concentration of population; to facilitate the adequate provisions of transportation, water sewerage, schools, parks and other public requirements and otherwise to promote the public safety, health, convenience and general welfare in accordance with a comprehensive plan." The ordinance recites that it was adopted "in pursuance of the authority granted by the Charter of Cornelia as amended by the Act approved March 9, 1959 (Ga. L. 1959, p. 2178), as amended."

Among the purposes of the ordinance are: "to lessen congestion in the streets; to secure safety from fire, panic, and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population; to facilitate the adequate provision of transportation, water sewerage, schools, parks, and other public requirements; to sustain the stability of neighborhoods; to protect property against blight and depreciation; to secure economy in governmental expenditure; to conserve the value of buildings; to encourage the most appropriate use of land and buildings. . ."

Under the provisions relating to industrial districts the ordinances states that the following uses are prohibited within an I (Industrial) Zone: distillation of bones; garbage, offal, dead animal reduction or dumping; rendering or refining of fats and oils; any other use that is noxious or offensive by reason of the emission or creation of odor, dust, fumes, smoke, gas, noise, vibration or similar substances or conditions which in the opinion of the planning commission would be detrimental to the community interest.

The defendant demurred to the petition on the following grounds: that the petition sets forth no cause of action; that the plaintiff is not entitled to the relief sought; that the zoning ordinance upon which relief is sought is null and void because the 1959 Act, supra, upon which it is based contravenes Art. I, See. IV, Par. I of the Georgia Constitution ( Code Ann. § 2-401) since the 1959 Act is a special law for which provision had been made by a general law, Ga. L. 1946, p. 191; that it affirmatively appears from the petition that the City of Cornelia has not elected to come within the provisions of the 1946 Act; that the zoning ordinance is null and void because the special law upon which it is based contravenes Art. III, Sec. VII, Par. VIII of the Georgia Constitution ( Code Ann. § 2-1908) in that it contains matter different from that expressed in the title.

The trial judge overruled all the grounds of the defendant's demurrer, to which judgment exception is taken.


1. The defendant makes two contentions regarding his grounds of general demurrer. First, it is argued that the petition failed to allege when the construction of the plant was begun. Hence, construing the pleadings most strongly against the pleader, it would appear that the construction began prior to the enactment of the ordinance and would qualify as a protected nonconforming use.

The general rule is that a petition need not by anticipation negative possible defenses on the part of the defendant. Wright v. Conner, 200 Ga. 413, 415 ( 37 S.E.2d 353). Here the petition alleges that the defendant commenced the operations which are sought to be enjoined almost a year and a half after the adoption of the zoning ordinance. The mere possibility that construction of the plant began before the adoption of the ordinance does not amount to an allegation of a pre-existing nonconforming use allowed under the statute. See Ga. L. 1946, pp. 191, 200 ( Code Ann. § 69-835). Furthermore, prior nonconforming uses are not absolutely protected from subsequent zoning regulations. The law, Code Ann. § 69-835, supra, provides means by which such uses may be phased out or required to cease, and this court has held that it is incumbent upon one seeking to use property for a nonconforming use after a rezoning ordinance to show that his prior use of the property was legal and not unlawful. Troutman v. Aiken, 213 Ga. 55, 56 ( 96 S.E.2d 585).

Hence, even a nonconforming use would not be protected unless it appeared that it was lawful at its inception. Clearly, such a matter is within the province of defensive pleadings and the plaintiff is not required to negative this possible defense.

Second, the defendant urges that, since the plant was completed in November, 1963, and its operations began and continued until the time the suit was filed in November 1964, the plaintiff was guilty of laches and by his delay was estopped to assert his rights. A general demurrer asserting that no cause of action is set forth does not raise the question whether the plaintiff is barred by laches. Concrete Coring Contractors v. Mechanical Contractors Engineers, 220 Ga. 714 ( 141 S.E.2d 439), and cases cited.

Even if this were not so, we find no merit in the defendant's contention. Where, according to the petition, the defendant acted in direct violation of the plain prohibition of the zoning ordinance, it could not be said to rely on the plaintiff's inaction in not immediately insisting upon or compelling enforcement of the zoning ordinance. Especially is this true where the petition does not disclose that the plaintiff had any knowledge of the use to which the building would be put prior to its completion, nor is there anything to show that the defendant has incurred additional expense since the commencement of its operations or suffered loss of any kind through the plaintiff's delay in bringing suit. No ground upon which the doctrine of laches might be applied appears affirmatively from the allegations of the petition. Hence, it was not subject to demurrer. Hadaway v. Hadaway, 192 Ga. 265, 269 ( 14 S.E.2d 874).

2. We now consider the constitutional attacks raised in the defendant's demurrers. The thrust of the defendant's argument is that the zoning ordinance was based on the 1959 Act, supra, which was unconstitutional for various reasons.

This court has held that the omission of an enacting clause does not invalidate an ordinance. City of Cartersville v. McGinnis, 142 Ga. 71, 76 (3) ( 82 S.E. 487, AC 1915D 1067). The general rule is: "Even a misrecital in an ordinance of the source of the power by which the ordinance is passed does not invalidate it if in point of fact the power to enact it existed." 62 CJS 791, Municipal Corporations, § 414 (c). See McCallum v. Bryant, 211 Ga. 98, 100 ( 84 S.E.2d 39). For whatever reason the 1959 Act was enacted it was superfluous since the 1946 Act gives full power to cities to adopt zoning ordinances for certain specified purposes. As far as the record shows, this ordinance fully complied with the general law's terms and conditions and is expressly adopted for the purposes sanctioned and required by the 1946 Act. Further, no question is raised that the zoning ordinance is in any way contrary to or violative of the general law. We find no valid reason to hold that the ordinance must stand or fall dependent upon the validity of the 1959 Act, where such ordinance comes within the terms of the 1946 Act. It would be useless formality to rule upon the constitutionality of the 1959 Act; for, even if it were found to be unconstitutional, the ordinance, being within the purview of the 1946 Act, would still be sustainable. Stegall v. Southwest Ga. Housing Authority, 197 Ga. 571, 585 ( 30 S.E.2d 196).

Judgment affirmed. All the Justices concur.


Summaries of

Ralston Purina Co. v. Acrey

Supreme Court of Georgia
Apr 8, 1965
220 Ga. 788 (Ga. 1965)
Case details for

Ralston Purina Co. v. Acrey

Case Details

Full title:RALSTON PURINA COMPANY, INC. v. ACREY

Court:Supreme Court of Georgia

Date published: Apr 8, 1965

Citations

220 Ga. 788 (Ga. 1965)
142 S.E.2d 66

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