Richardson v. Awtry & Lowndes Co.

• Decision Date: 15 July 1948
• Docket Number: 16283.
• Citation: 49 S.E.2d 24,204 Ga. 77
• Court: Georgia Supreme Court
• Parties: RICHARDSON v. AWTRY & LOWNDES CO.

49 S.E.2d 24

204 Ga. 77

RICHARDSON v. AWTRY & LOWNDES CO.

No. 16283.

Supreme Court of Georgia

July 15, 1948

J. C. Savage, J. C. Murphy, J. M. B. Bloodworth, and John E. Feagin, all of Atlanta, for plaintiff in error.

Wm A. Fuller and Geo. G. Finch, both of Atlanta, for defendant in error.

Syllabus Opinion by the Court

JENKINS Chief Justice.

1. 'To entitle one to the writ of mandamus, it must appear that he has a clear legal right to have performed the particular act which he seeks to have enforced.' Atlanta v. Blackman Health Resort Inc., 153 Ga 499(5), 113 S.E. 545, 548; Speed Oil Co. v Aldredge, 192 Ga. 285, 15 S.E.2d 214. Before mandamus will issue, 'the law must not only authorize the act to be done, but must require its performance.' Hart v Head, 186 Ga. 823, 824, 199 S.E. 125, 126; Murphy v. Withers, Ga.Sup., 48 S.E.2d 721.

2. In the instant action for mandamus to compel the clerk of council of the City of Atlanta to issue a license to conduct an undertaking establishment in an area zoned for business, it appears from the record that said clerk is prohibited by law from issuing a business license to an undertaking establishment unless and until such firm has procured a permit from the city board of zoning appeals. Section 93-212, Code, City of Atlanta. This provision of the Atlanta Code is not attacked.

3. By act of the legislature (Ga.L.1929, pp. 818-830) amending the charter of the City of Atlanta by establishing a board of zoning appeals it is provided, 'Every decision of the Board of Zoning Appeals shall be subject to writ of certiorari issued from the superior court upon the same terms as such writs are issued in any case.'

4. From the plaintiff's pleadings it appears that he had applied to the board of zoning appeals for a permit to engage in the undertaking business at a specific location zoned for business, and said application had been denied; that he thereupon applied to the Superior Court for certiorari which also was denied; and that exceptions to the judgment denying certiorari are presently pending by writ of error in the Court of Appeals.

5. It is provided by § 64-101 of the Code that, 'All official duties should be faithfully performed; and whenever, from any cause, a defect of legal justice would ensue from a failure or improper performance, the writ of mandamus may issue to compel a due performance, if there shall be no other specific legal remedy for the legal rights.' (Italics ours.).

6. Under the law and facts of this case as above set forth it is clear that in the absence of a permit from the Board of Zoning Appeals the law does not impose upon the clerk of council an official duty to issue a license to operate an undertaking establishment at just any location, such as could be properly made subject to enforcement by the writ of mandamus; and since the Code, § 64-101, authorizing mandamus in certain cases, also provides that such remedy is not available where another specific remedy exists; and since it is unquestioned that certiorari is the specific remedy provided to judicially inquire into and establish the right here sought to be enforced by mandamus; and since it further appears that the movant has in fact undertaken by certiorari to reverse the judgment of the board of zoning appeals denying a permit, it follows that the issue as to the right of petitioner to a permit which establishes his right to a license will be decided just as effectively by the Court of Appeals, where the case is now pending, as though the same issue could be determined by mandamus. Accordingly, the petition failed to state a cause of action for mandamus. Wofford Oil Co. v. City of Calhoun, 183 Ga 511, 513, 514, 189 S.E. 5; ...