Galfas v. City of Atlanta, 13657.

• Decision Date: 31 January 1952
• Docket Number: No. 13657.,13657.
• Citation: 193 F.2d 931
• Parties: GALFAS et al. v. CITY OF ATLANTA et al.
• Court: U.S. Court of Appeals — Fifth Circuit

193 F.2d 931 (1952)

GALFAS et al. v. CITY OF ATLANTA et al.

No. 13657.

United States Court of Appeals Fifth Circuit.

January 31, 1952.

Hayden C. Covington, Brooklyn, N.Y., for appellant.

J. C. Murphy, Asst. City Atty., J. C. Savage, City Atty., J. M. B. Bloodworth, Asst. City Atty., John E. Feagin, Asst. City Atty., and Henry L. Bowden, Asst. City Atty., all of Atlanta, Ga., for appellee.

Before HUTCHESON, Chief Judge, and BORAH, and RUSSELL, Circuit Judges.

RUSSELL, Circuit Judge.

The primary question in this appeal is whether the trial Court, in the exercise of its equitable jurisdiction, committed an abuse of discretion in refusing to enjoin the City of Atlanta, through its Board of Zoning Appeals and its Building Inspector, from attempting to in anywise enforce the Zoning Ordinances of the City against the appellants. This was part of the relief for which the appellants prayed. We hold that under the circumstances present there was no abuse of discretion.

The proceeding arose by the filing of a complaint for injunction and declaratory judgment by named plaintiffs as members of, or, Jehovah's Witnesses, for themselves and as a class action for all others of "Jehovah's Witnesses similarly situated in the State of Georgia and particularly the said federal Northern District of Georgia." Appellant Timothy Galfas sued "herein also as a trustee for the congregation of Jehovah's Witnesses located in the City of Atlanta, including the other named plaintiffs, by reason of the fact that he holds title as trustee for said plaintiffs to the property hereinafter described." The action was expressly brought to redress deprivation of plaintiffs' civil and property rights by defendants in interfering with lawful religious assemblies, and the court was asked to "vindicate plaintiffs", and to declare their specified rights had been wrongfully interfered with contrary to the Civil Rights Acts,¹ and the provisions of the First and Fourteenth Amendments to the Constitution of the United States and to enjoin such interference. Jurisdiction, by virtue of Section 1343 of Title 28 U.S.C., is predicated upon the claim of these Federal questions.

After relating the engagement of plaintiffs as ministers "engaged in the charitable work of preaching the gospel of God's Kingdom in Atlanta" both, by missionary work publicly and from house to house, and by the maintenance and operation of places of worship which have been carried on in the City of Atlanta for many years, the complaint details the purchases of, and unsuccessful attempts to secure permits for building a church on, two described lots in the City of Atlanta. One will be referred to as the Juniper Street lot; the other as the Gordon Street property. A third property, on Flat Shoals Avenue, was purchased and was in use, but because of the specified arbitrary and unconstitutional action of defendants in refusing the two permits applied for, plaintiffs made no attempt to comply with any zoning ordinance or regulations of the defendants with reference to a permit at this location, "but have, on the contrary, proceeded to maintain a church" there without a permit. They have likewise been carrying on such services and maintaining a place of religious assembly at the Gordon Street property notwithstanding the denial of their application for a permit to convert the premises into a church. The defendants have notified plaintiffs to discontinue the maintenance of such places and that in default "the defendants will proceed as the law directs." The Juniper Street lot was sold following the determination, adversely to the contentions of appellant Galfas, of litigation in the State Courts seeking to require the issuance of the permit sought.²

The complaint sets forth the charter provisions of the City of Atlanta authorizing zoning; the creation of the defendant Board; and provisions of the zoning ordinances establishing use groups. It appears that churches are placed in "Class U7 Uses"³ and require a special permit⁴ which may be granted by the Board of Zoning Appeals "provided such use in such location will in the judgment of the Board of Zoning Appeals substantially serve the public convenience and welfare and will not substantially and permanently injure the appropriate use of the neighboring property." These provisions, and also one which purports to authorize such Board to condition the grant of a permit upon the adequacy of "off street" parking provided,⁵ are attacked as void on their face because an abridgement of plaintiffs' right to freedom of assembly and freedom of worship. The broad basis of this claim is that the City can place no restriction upon the location of a place of religious worship. As an alternative ground of attack it is asserted that the provisions of the ordinances as construed, applied, and enforced against plaintiffs by defendants are void upon the same grounds, and deprive plaintiffs of their liberty and property without due process of law; deny them equal protection of the law, and have been discriminatorily enforced and applied against plaintiffs. Reasons why these grounds of attack are claimed to be true, and why such conduct further constitutes the deprivation of plaintiffs' rights, are set forth.

The claim of "great, immediate and irreparable injury" which is said to be imminent is that plaintiffs will be denied and deprived of the right to hold religious assemblies in such places, and have suffered, and will continue to suffer, humiliation, disgrace, and mortification by such denial, as also the loss of good will and respect which will render it impossible for plaintiffs to secure attendance at such services by the people of Atlanta, and they will lose the use of the properties as churches and be deprived of the exercise of their civil rights thereon. The defendants responded by motion to dismiss and answer.

Upon the hearing the Court withheld a ruling upon the motion to dismiss until he had heard the testimony. The plaintiffs adduced testimony in support of the complaint and called certain of the defendants for cross-examination upon the features of discrimination and arbitrary action claimed. Thereafter the Court filed an opinion and in accordance therewith made findings of fact which summarized the prior proceeding before the Board and in the State Courts, to which we have referred. He found that the Juniper Street lot had been sold; that plaintiffs were continuing to use the other properties for church services; that the City of Atlanta and other defendants could not punish any one for violations but Galfas, the title-holder, and could not make criminal cases against any other persons for worshiping in either of the properties, nor, under the zoning ordinances, interrupt any religious services there. That in any prosecution of Galfas he could, upon conviction, appeal by certiorari through the State Courts to the United States Supreme Court, and he was not entitled to injunction. That no action was threatened except such a trial of Galfas and that the plaintiffs showed no such imminent danger of irreparable injury as...