Butler v. City of Dublin

• Decision Date: 12 February 1941
• Docket Number: 13447.
• Citation: 13 S.E.2d 362,191 Ga. 551
• Parties: BUTLER v. CITY OF DUBLIN.
• Court: Georgia Supreme Court

13 S.E.2d 362

191 Ga. 551

BUTLER v. CITY OF DUBLIN.

No. 13447.

Supreme Court of Georgia

February 12, 1941

R I. Stephens, Palmer W. Hicks, and Lester F. Watson, all of Dublin, for plaintiff in error.

Carl K. Nelson and Nelson & Nelson, all of Dublin, for defendant in error.

The averments of the petition relative to the question whether the city or its officers were proceeding arbitrarily or unreasonably as to the petitioner's property were as follows: That she was the owner of a described lot of land in the city, fronting 107 feet on one street, 166 feet on another street, the other two sides being 75 feet and 141 feet; that the lot was unimproved, well adaptable and especially valuable for business and commercial purposes because of its proximity to railroads and business houses and if petitioner is restricted to its use for only residential purposes, 'it will render said property practically valueless for the purposes for which she purchased it and for which it is best suited;' that the property is vacant, has no earning capacity, and petitioner is sustaining the expense of taxes and loss of interest; that she desires to construct a modern store building on the property, to carry on a general merchandise business such as is carried on by all first-class establishments of that character, with plans and specifications to conform to the building ordinance of the city; that for this purpose she applied, in October, 1939, for a building permit, and the building committee of the city, after first granting it reported unfavorably to the city council, upon inspection and consideration of the property and the plans submitted, and she was refused from that time to the date of the petition 'the privilege and right to construct and build in accorance with her plans and in accordance with the authority granted by the building committee,' before the unfavorable action stated; that in 1940 she renewed her application to the city and its authorities for building permits with the same type of improvements as under the same conditions as were involved in the first application; that this application was referred to the three zoning commissioners of the city, two of whom after investigation and consideration of the property signed a report recommending that a permit be granted, but for some unknown reason the third commissioner did not sign the report of file any protest; that 'when said zone commissioners' report or action was reported to the full council of the city * * * for the purpose of review and ratification, the said council by a majority vote unlawfully and arbitrarily refused to grant said permit and ignored the recommendation and approval' of said zoning commissioners; that in 1940, 'long after said council of the city of Dublin had arbitrarily and unlawfully refused your petitioner the right and use of her property, thereby depriving her of her legal and constitutional rights to build upon and use her property for lawful purposes for her enjoyment, benefit, and welfare, which are acceded and recognized as fundamental rights that are older than the constitution or any laws promulgated thereunder, she proceeded' to build upon her property, acting through her husband and agent; that all the acts and doings of the city, its agents, and officers, 'in the interference with her rights in the use of her property were unlawful, illegal, arbitrary, and unconstitutional,' and especially under art. 1, sec. 1, par. 2 (Code, § 2-102), providing for the protection of person and property, and under art. 1, sec. 1, par. 3 (Code, § 2-103), providing that no person be deprived of property except by due process of law; that 'if your petitioner is deprived of use of her lawful property for the purposes herein set forth, she will sustain irreparable loss and damage tantamount to confiscation; and that 'the use to which petitioner is seeking to put her property will not be injurious to any citizen of the City of Dublin, their health, or property.' By amendment the petitioner further alleged that the city 'was and is without legal authority to enforce what is known as the zoning ordinance, in so far as said ordinance seeks to abridge and prohibit plaintiff from using her own property for whatever purposes she may see fit to use same, so long as her use of her said property is not injurious or detrimental to the health and welfare of adjacent property owners and the public in general; and especially when [she] offers, which she does at this time and has all the time, to erect such buildings and improvements on her property as will meet the approval of the building inspector of the city * * * with reference to sanitation, dust, smoke, or unusual noises; and [she] avers that she is willing to be supervised in the erection and improvement of her property by the proper building inspector, with reference to health, sanitation, etc., as provided by the municipal laws of the city.'

Syllabus Opinion by the Court.

JENKINS, Justice.

1. '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. In order to fall within the recognized exception to this rule, 'where property rights are involved and one's business and property may be subjected to irreparable damage unless there is speedily afforded relief,' the relief must...