Davis v. Johnson
| Decision Date | 01 November 1955 |
| Docket Number | No. 35778,Nos. 1,2,35778,s. 1 |
| Parties | W. L. DAVIS v. D. M. JOHNSON |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
The court properly sustained the general demurrers to each count and properly dismissed the petition.
We shall designate the parties as they appeared respectively in the trial court i. e., William L. Davis will be called the plaintiff and D. M. Johnson will be called the defendant. The plaintiff filed suit in the Superior Court of McDuffie County against the defendant in four counts. Error is assigned on the dismissal of the petition on general demurrer. The petition as twice amended sought judgment against the defendant because of certain official acts committed in his capacity as Mayor of the City of Thomson. It is alleged that the defendant, as mayor, on June 14, 1954. signed a permit granting to the plaintiff the right to erect a building on his premises for the purpose of equipping and operating an abattoir; that the plaintiff relied upon the permit and at great expense to himself erected and equipped a building to be used for the purpose of an abattoir after which the defendant in his official capacity as mayor, notified the plaintiff that his permit was void and that the plaintiff could not operate the abattoir; that in his official capacity as mayor the defendant would prevent and prohibit the plaintiff from operating the abattoir and from exercising any of the rights conferred by the permit; that the notice was given before the plaintiff had started to operate the abattoir and before a single animal had been slaughtered therein, but after the abattoir had been built as allowed by such permit; that the charter of the City of Thomson provides that the mayor is the chief executive and has general jurisdiction over the affairs of the city, and all police officers and city employees are under the jurisdiction of the mayor and council and are subject to his directions; that the city has five policemen, a city clerk, and an assistant city clerk, and other employees subject to the direction of the defendant as mayor; that the defendant has continuously allowed the aforementioned actions to stand; that by such actions the plaintiff suffered damage in having expended $8,693.17 for the erection and equipment of the abattoir; that the market value of the plaintiff's premises on which the abattoir was erected was $8,693.17 (including the abattoir itself) and was greater immediately before notification that his permit would not be honored than immediately afterwards. The plaintiff sued for special damages, general damages, and punitive damages. The petition is in four counts. Count 1 alleges (under Code, § 69-208) that the acts of the defendant in his official capacity as mayor were done 'oppressively' ; count 2 alleges that the said acts were done 'without authority of law'; count 3 alleges that the said acts were done 'maliciously'; count 4 alleges that the action of the defendant in notifying the plaintiff that the permit was void was ex parte and did not afford the plaintiff a right of hearing prior thereto with the privilege of introducing evidence to show that the permit was not void and that certain constitutional rights of the plaintiff were there violated, including the taking and damaging of his private property without compensation, and that the plaintiff was denied due process of law. After the foregoing general allegations the plaintiff seeks to establish liability as follows:
'7. After the said building was erected and equipped, defendant, in his official capacity as mayor, notified plaintiff that his permit was void.
'8. Defendant, in his official capacity as mayor, notified plaintiff that he could not operate said abattoir.
'8. (b). At all times named herein defendant, in his official capacity as Mayor of the City of Thomson, exercised authority and jurisdiction over five policemen of the City of Thomson, a city clerk, assistant city clerk, and all other employees of the City of Thomson, and defendant notified plaintiff that, in his official capacity as mayor, defendant would prevent and prohibit plaintiff from operating said abattoir and from exercising any of the rights conferred by the aforesaid permit.
There is no allegation in the petition that the mayor's action was not based on authority of the city council.
Randall Evans, Jr., Thomson, for plaintiff in error.
Fulcher, Fulcher & Hagler, Augusta, for defendant in error.
1. As we construe the petition, the sole basis for establishing liability and damages in favor of the plaintiff against the defendant is the allegation that the defendant notified the plaintiff that the permit issued to the plaintiff was void and that the plaintiff could not operate the abattoir but that the defendant would prevent and keep the plaintiff from operating the abattoir and that the defendant had consistently allowed the actions to stand. In this connection it is appropriate to consider the case of the City of Thomson v. Davis, 92 Ga.App. 261, 88 S.E.2d 300, 304, in which it was decided that the general demurrer of the City of Thomson should have been sustained to a petition of the plaintiff in the instant case, which case alleged substantially the same facts as the petition in the instant case and which arose by reason of the identical events. We will have occasion to further refer to that decision. The present action is brought under the provisions of Code, § 69-208, which reads: 'Members of the council and other officers of a municipal corporation shall be personally liable to one who sustains special damages as the result of any official act of such officers, if done oppressively, maliciously, corruptly, or without authority of law.'
The Acts of the General Assembly approved August 19, 1927, Ga.Laws 1927, pp. 1631 et seq. created a new charter for the City of Thomson. This court takes judicial cognizance of this act. Section 13 of the charter provides: 'That the mayor * * * shall not vote on legislative questions and matters before the body except in case of a tie * * *.'
Construing the petition most strongly against the pleader, as must be done on demurrer, it will be presumed by this court that there was no tie in any action taken by the City Council of Thomson whereby the defendant, as mayor, was authorized to, or actually did, vote upon any question respecting the issuance or the revocation of the plaintiff's permit, or the operation of his abattoir. It appears there was no contract between the City of Thomson and the plaintiff, see City of Thomson v. Davis, supra, consequently, there can be none between the plaintiff in the instant case and the defendant. The action for damages in the instant case for the alleged taking and damaging of the property of the defendant is predicated solely on Code, § 69-208. The provisions of that section as to oppressive, malicious, corrupt, and unlawful acts cannot be applied to the acts of the defendant in the instant case for it nowhere appears in the allegations of the petition that the defendant by force, threats, or any means whatsoever prevented the plaintiff from conducting his business or exercising the privilege and license. Indeed, it is not alleged that the defendant canceled or revoked the permit. It is only alleged that the defendant notified the plaintiff to the effect that his permit was void and that the plaintiff could not operate the abattoir under such permit. Under the provisions of the charter of the City of Thomson, city council and not the mayor, is authorized to issue permits and licenses. Reverting again to City of Thomson v. Davis, supra, this court said:
'The acts of the governing authorities of the city here complained of constituted neither a taking nor a damaging for public purposes, but were an unlawful attempt on the part of the governing authorities to regulate the use of the property of the owner for his own purposes. This is the construction given by a majority of the courts of this country to similar constitutional provisions. In 11 Am.Jur., Constitutional Law, 1005, § 266, it is stated: 'Acts done in the proper exercise of the police power, which merely impair the use of property, do not constitute a taking within the meaning of the constitutional requirement as to the making of compensation for the taking of property for public use, and accordingly do not entitle the owner of such property to compensation from the state or its agents, or give him any right of action for the injuries sustained.' * * * But where no law or ordinance is under attack, and where the subject matter is such as to come under the valid exercise of police power (as slaughterhouses were declared to be in the Cutsinger case, supra [Cutsinger v. City of Atlanta, 142 Ga. 555, 83 S.E. 263, L.R.A. 1915B, 1097]), no case is made which would entitle the plaintiff to compensation for a 'taking for public purposes.' * * * In the present case, title to the property and its possession, physically unimpaired, remain in the owner and only the use is sought to be restricted. This does not establish a cause of action against the city for money damages.
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