Borough of Atlanta v. Kirk

• Citation: 165 S.E. 69,175 Ga. 395
• Decision Date: 13 August 1932
• Docket Number: 8745.
• Parties: BOROUGH OF ATLANTA et al. v. KIRK et al.
• Court: Georgia Supreme Court

165 S.E. 69

175 Ga. 395

BOROUGH OF ATLANTA et al. v. KIRK et al.

No. 8745.

Supreme Court of Georgia

August 13, 1932

Syllabus by the Court.

In lessee's suit to enjoin enforcement of ordinance restricting parking in streets adjoining lessee's lot allowing intervention making lessor party plaintiff held proper.

Limiting parking right in Atlanta streets is left in first instance to city authorities' discretion, to be controlled only by discretion of superior court to be exercised within limits.

Enforcement of ordinance restricting parking in produce marketing district held not enjoinable, evidence not showing that ordinance was unreasonable.

1. The court did not err in allowing the intervention making the owner of the lot a party plaintiff, where the petitioner, the lessee, was seeking to prevent the enforcement of the ordinance restricting the right of parking in streets adjoining the lot.

2. The matter of limiting the right of parking cars and trucks in the streets of the city of Atlanta is left in the first instance to the discretion of the city authorities, to be controlled only by the discretion of the superior court to be exercised within limits. In the present instance the evidence did not show that in passing the ordinance attacked as unreasonable and void the city authorities had acted arbitrarily, unreasonably, or unfairly; and the judge of the superior court should have refused the injunction prayed for.

Error from Superior Court, Fulton County; Edgar E. Pomeroy, Judge.

Suit by John W. Kirk and others against the Borough of Atlanta, etc and others. Judgment for plaintiffs, and defendants bring error.

Reversed.

RUSSELL C.J., dissenting.

Limiting parking right in Atlanta streets is left in first instance to city authorities' discretion to be controlled only by discretion of superior court to be exercised within limits.

John W Kirk, for himself and others named in the petition, filed a suit against the city of Atlanta and the chief of police, praying for an injunction against the enforcement of an ordinance prohibiting parking on certain streets between hours specified in the ordinance, in the daytime, and making those streets nonparking during the nighttime. Kirk alleged that he owned a lease of a lot at the corner of Central and Trinity avenues; that on this lot he was carrying on the business of buying and selling country produce of all kinds; and that he had built up a good business, buying from people some of whom had bought up produce throughout the country and brought it to Atlanta by truck. The drivers of these trucks, in order to be in Atlanta during the early hours of the morning, arrived in Atlanta during the late hours of the evening, and either sold their products to Kirk, or leased a space on his lot where they displayed their produce for sale. The produce arrives by truck in the early hours of the morning, mostly before daylight. From daybreak to about 8 o'clock the retail merchants of the city and vicinity come with their trucks or automobiles to this lot, where they purchase, either from petitioner or directly from the producers, such products as they need for their daily sales or immediate demands, so that by 7 or 8 o'clock retail stores all over the city are supplied with fresh fruit and vegetables which have thus just arrived. The wholesale houses also make such purchases as they need, but the main business is done with retail merchants.

It is alleged that by personal efforts Kirk has induced hundreds of growers of these products to make Atlanta their sole market that during the later hours of the night and early hours of the morning there is very little traffic upon Central and Trinity avenues, especially along the portions used for purchase and delivery of the produce mentioned; that during the early hours of the morning a number of automobiles and trucks belonging to retail merchants and others desiring to buy from petitioners gather upon Central avenue, and perhaps extend a block or two north and south of Trinity avenue, and they gather along Trinity avenue for a block or two east and west of Central avenue; that it is necessary for cars to be stopped along these streets for a few minutes, in order that purchases may be made and the produce loaded into the cars or trucks; that at no time on either street is there any interference with travel nor is the public in any way inconvenienced by the presence of these automobiles or trucks; that there are no residences on Central avenue opposite this supply depot, and only two residences are on Trinity avenue, neither of which is directly opposite; that there are (with one exception) no business enterprises upon either of these streets, within a block of the lot in question, which are open for business before 7 o'clock in the morning, except the business of petitioners and those associated with them, and these streets in the territory mentioned are practically deserted after 6 o'clock in the morning. On October 6, 1930, the following ordinance was passed and was approved by the mayor: "Be it ordained by the Mayor and General Council, that one hour parking be allowed on Central Avenue from Rawson Street to Hunter Street, and for one block each way on all intervening intersecting streets, between the hours of 7:30 a. m. and 6:00 p. m., and nonparking in said street and said intersecting streets between the hours of 6:00 p. m. and 7:00 a. m., beginning November 1, 1930." It is alleged that the producers who bring their products to the city for sale do not have to, nor do they, park their cars upon the streets prohibited by the ordinance, but drive them upon the lot of Kirk, where they unload their trucks; that the merchants from all over the city coming for their early morning purchases have necessarily been stopping their cars upon the restricted areas just long enough to secure their purchases and load their cars; that the carrying on of this business in the early morning hours is done in an orderly way without unnecessary noise; and that the streets are always open for any vehicles to freely pass to and fro, and that there can be no legitimate complaint from the public at large, as this section is zoned for business. It is contended that the...