Opinion
19074, 19122.
ARGUED SEPTEMBER 13, 1955.
DECIDED OCTOBER 11, 1955.
Injunction. Before Judge Stephens. Laurens Superior Court. June 15, 1955.
W. W. Larsen, W. W. Larsen, Jr., Herbert Kimzey, for plaintiffs in error.
Wm. Malcolm Towson, R. M. Daley, contra.
1. While the petition contains many grounds of attack upon § 20 of the charter, the zoning ordinances of the City of Dublin, and the manner of their enforcement by the mayor and board of aldermen, some of which might, in a proper case, be held to be meritorious ( Butler v. City of Dublin, 191 Ga. 551, 13 S.E.2d 362), the only possible reason alleged for invoking the equitable remedy of injunction in this case is set out in paragraph 21 of the petition, the allegations of which are as follows: "That the Zoning Ordinance of 1950 provides that any person violating any provision thereof shall be punished as provided in Section 78 and Section 79 of the City of Dublin Code. That your petitioners have been threatened with prosecution if they proceed to improve their property above described by said city and under the terms of said ordinance." Held:
A petition which seeks to enjoin a prosecution under a municipal ordinance on the ground that it is unconstitutional, but which fails to allege that any arrest has been made, or that any property has been levied upon, or that there has been any other interference with the person or property rights of the petitioner, and which alleges merely a threat or mere apprehension of prosecution under the terms of the ordinance attacked, fails to state a cause of action. Code § 55-102; City of Tifton v. Cooper, 206 Ga. 379 ( 57 S.E.2d 196); Thomas v. Mayor c. of Savannah, 209 Ga. 866 ( 76 S.E.2d 796), and cases there cited; City of Bainbridge v. Olan Mills, 207 Ga. 636 ( 63 S.E.2d 655); Baker v. City of Atlanta, 211 Ga. 34 ( 83 S.E.2d 682).
2. The trial judge erred in overruling the general demurrer to the petition, and all further proceedings are nugatory.
Judgment reversed on cross-bill of exceptions; main bill of exceptions dismissed. All the Justices concur.
ARGUED SEPTEMBER 13, 1955 — DECIDED OCTOBER 11, 1955.
M. H. Sikes and L. K. Keen brought their petition against the City of Dublin and the mayor and aldermen thereof, wherein it was alleged: that the petitioners were the owners of a described tract of land in the City of Dublin; that they had filed an application for a building permit with said city as required by and in compliance with § 462 of the Code of 1937 of said city, which provides that, if "any person shall be desirous of erecting . . . any building or structure within the limits of the City of Dublin, he shall make application at the office of the city clerk for a permit for that purpose," and specifies the information to be furnished with the application, and that "it shall not be lawful to proceed to construct . . . any building or structure within the limits of said City of Dublin without such permit"; that the application had been denied by the mayor and board of aldermen "on the grounds that this is in a zoned area"; that § 20 of the charter of the City of Dublin (Ga. L. 1937, p. 1771), authorizing the city to enact zoning ordinances, and all zoning ordinances enacted by the city in pursuance thereof, are unconstitutional, null and void, because violative of various provisions of the State and Federal Constitutions for numerous reasons set out in the petition; and "that your petitioners have been threatened with prosecution," by said city under said ordinances if they proceed to improve their property. The petition prayed: "That the defendants be temporarily enjoined and restrained from either personally or by and through their agents and employees in any manner enforcing or attempting to enforce the above mentioned ordinance against your petitioner and further that they be similarly enjoined and restrained from otherwise interfering with your petitioners' use of their property"; that the zoning ordinance be declared null, void, unconstitutional, and of no effect; that the defendants' arbitrary and discriminatory manner of enforcing zoning be enjoined and restrained; for a permanent injunction; and for general relief.
To this petition as amended the defendants demurred generally upon the grounds: (a) there is no cause of action therein set out; (b) it affirmatively appears from said petition that plaintiffs are not entitled to relief therein prayed for; (c) no facts are alleged in said petition to authorize the equitable relief prayed for; (d) it affirmatively appears from the petition that the plaintiffs have a full, adequate, and complete remedy at law. The trial judge overruled the general demurrer; and, after hearing evidence, denied an interlocutory injunction. To the judgment denying the interlocutory injunction the plaintiffs excepted in the main bill of exceptions; and the defendants, by cross-bill of exceptions, assign error upon the overruling of the general demurrer.