Head v. Browning

• Decision Date: 08 July 1959
• Docket Number: No. 20525,20525
• Citation: 215 Ga. 263,109 S.E.2d 798
• Parties: T. Grady HEAD et al. v. Rodney Ingram BROWNING et al.
• Court: Georgia Supreme Court

Page 798

109 S.E.2d 798

215 Ga. 263

T. Grady HEAD et al. v. Rodney Ingram BROWNING et al.

No. 20525.

Supreme Court of Georgia.

July 8, 1959.

Rehearing Denied July 23, 1959.

Houston White, William F. Lozier, Atlanta, for plaintiff in error.

Johnson, Hatcher, Meyerson & Irvin, Johnson, Hatcher & Meyerson, Herbert Johnson, Eugene Cook, Atty. Gen., Ben F. Johnson, Jr., Robert H. Walling, John M. Bowling, Deputy Asst. Attys. Gen., for defendant in error.

John A. Dunaway, William F. Lozier, Atlanta, for party at interest, not party to record.

Syllabus Opinion by the Court

HAWKINS, Justice.

T. Grady Head, Charles D. Thompson, Jr., G. H. Doyle, and Fred M. McCord, alleging themselves to be citizens, residents and taxpayers of the City of Atlanta, and members of the Peachtree Road Methodist Church, located in the same vicinity as the proposed liquor store referred to in the petition, brought their petition against Rodney Ingram Browning, as an individual, and Dixon Oxford, as Revenue Commissioner of the State of Georgia, seeking to restrain and enjoin the defendant Browning from operating a retail liquor store at a described location in the City of Atlanta, upon the ground that he had no valid city license to operate such a business, and to restrain and enjoin the defendant State Revenue Commissioner from issuing to the defendant Browning a State liquor license, because, as alleged, he was without authority of law to do so; and that to issue such a State license would be an illegal act upon his part because defendant Browning had no valid city license, the existence of which is a condition precedent to the issuance of a valid State liquor license. The petition as amended is in six counts, alleging various reasons why the plaintiffs claim the defendant Browning's city liquor license is null and void, and with some of which we will deal specifically in the opinion. To the judgment sustaining the defendants' general demurrers and dismissing the petition the plaintiffs except. Held:

1. It is insisted by counsel for the defendant Browning that, since the State Revenue Commissioner has now issued a State license to the defendant Browning, this case is now moot. With this contention we cannot agree. During the pendency of the bill of exceptions in this court, and before the issuance of any license by the State Revenue Commissioner, counsel for the plaintiffs applied for a supersedeas, and counsel for the defendant Browning, in opposing the grant of a supersedeas, stated in their brief 'The grant of a supersedeas in this case by this court would not preserve this court's jurisdiction, but to the contrary would render the case moot and be a defeat for defendants in error despite the fact that the petition has been held not to state a cause of action. Affirmance of the trial court by this court thereafter could avail defendants in error nothing.' This argument was based upon an ordinance of the City of Atlanta, dated February 18, 1959, providing that, unless the holder of a city license began operation of the business within nine months from August 20, 1958, the license would be void, and that, under that ordinance, the defendant Browning had only until May 20, 1959, within which to obtain his State license and begin operation. These same counsel, after the supersedeas was denied by this court, now argue that 'The issue of enjoining the Revenue Commissioner is now moot and the court should so hold.' We do not subscribe to this reasoning. The Revenue Commissioner in his brief in this court says: 'when and if Browning's city license is adjudicated invalid the State Revenue Commissioner stands ready to be governed by that adjudication.' In Haley v. Bailey, 199 Ga. 486, 34 S.E.2d 685, another liquor license case, no supersedeas was granted, and the city commissioners passed a resolution providing that, 'In compliance with and obedient to an order of the superior court of Dougherty County, Georgia, * * * the liquor license granted to Frank S. Leggett to operate a retail liquor store at 312 South Monroe Street, Albany, Georgia, is hereby rescinded and revoked. If the Supreme Court of Georgia reverses said order or grants a supersedeas in said case, said license shall be automatically reinstated.' This court there held 'that the questions involved in the case are not moot, but must be decided.' If the judgment here complained of should be reversed on the ground that the renewed city licenses issued to the defendant Browning for the years 1958 and 1959 were invalid because based upon a purported renewal of an invalid 1957 city license and that the State Revenue Commissioner had no authority to issue a State license because the applicant was not a duly licensed liquor dealer holding a valid city license, this would render nugatory the subsequent license granted by the State Revenue Commissioner, and under the allegations of the petition and the prayer of the plaintiffs for general relief, the court would be authorized to so hold. Bowers v. Dolen, 187 Ga. 653(5), 1 S.E.2d 734; Matson v. Crowe, 193 Ga. 578(4), 19 S.E.2d 288. Therefore the case is not moot. Hagans v. Excelsior Electric Membership Corp., 207 Ga. 53, 60 S.E.2d 162; Robertson v. Temple, 207 Ga. 311, 61 S.E.2d 285; Ford Motor Co. v. Abercrombie, 207 Ga. 464, 62 S.E.2d 209; People's Bank v. Fidelity Loan &c. Trust Co., 155 Ga. 619, 117 S.E. 747.

2. While it has been held by this court that the illegal sale of intoxicating liquors is a public nuisance, and may be abated by process instituted in the name of the State (Lofton v. Collins, 117 Ga. 434, 43 S.E. 708, 61 L.R.A. 150), and that the general rule of law is that an action to enjoin a public nuisance and the violation of a penal statute will not be granted at the instance of a private citizen unless he has sustained special injury (O'Brien v. Harris, 105 Ga. 732, 31 S.E. 745; American Legion v. Miller, 183 Ga. 754, 189 S.E. 837), the petition in the instant case is not merely an effort to enjoin the alleged illegal operation of a liquor store, but is one attacking the validity of a city license held by the defendant Browning, and to restrain and enjoin he defendant State Revenue Commissioner, a public officer, from committing the alleged unlawful act of issuing a State liquor license to the defendant Browning in violation of a public duty. Counsel for the defendants in error cite and rely upon the decisions of this court in Stokes v. Wall, 112 Ga. 349, 37 S.E. 383; Blanton v. Merry, 116 Ga. 288, 42 S.E. 211, which hold that a court of equity will not, at the instance of a taxpayer and citizen as such, enjoin an ultra vires or unauthorized act by a municipal or State officer without a showing that it will injuriously affect or damage him in some particular way not applicable to the public generally. Each of these decisions was rendered prior to the adoption by the legislature of the Code of 1933.

The effect of the adoption of the Code of 1933 with § 64-104 included therein was to enact into one statute all the provisions embraced in that Code. Central of Georgia Ry. Co. v. State of Georgia, 104 Ga. 831(2), 31 S.E. 531, 42 L.R.A. 518; Ga.L.1935, p. 84; Code Ann. § 102-101; Reardon v. Bland, 206 Ga. 633, 638, 58 S.E.2d 377. The following decisions, rendered after the adoption of the Code of 1933, which announce and apply the rule relied on by counsel for defendants in error, to wit, Miller v. Head, 186 Ga. 694, 715, 198 S.E. 680; McCloy v. Christian, 206 Ga. 590, 593, 58 S.E.2d 171; Ellis v. City of Hapeville, 203 Ga. 364, 368, 47 S.E.2d 265; Gulledge v. Augusta Coach Co., 210 Ga. 377, 379, 80 S.E.2d 274, make no reference to Code § 64-104, and it was evidently overlooked. Lester v. Foster, 207 Ga. 596, 598, 63 S.E.2d 402. In Moore v. Robinson, 206 Ga. 27, 36, 55 S.E.2d 711, 718, which was a proceeding to enjoin public officers from committing an alleged unlawful act, it was unanimously held 'Where the question is one of public right and the object is to procure the enforcement of a public duty, no legal or special interest need by shown, but it shall be sufficient that plaintiff is interested in having the laws executed and the duty in question enforced.' This is a quotation of Code § 64-104, which is found under the Chapter of the Code dealing with mandamus, and was codified following the ruling made by ...