Medlock v. Allison

• Decision Date: 10 October 1968
• Docket Number: 24737,Nos. 24736,s. 24736
• Citation: 224 Ga. 648,164 S.E.2d 112
• Parties: Randolph MEDLOCK, Mayor, et al. v. H. F. ALLISON. H. F. ALLISON v. Randolph MEDLOCK, Mayor, et al.
• Court: Georgia Supreme Court

Page 112

164 S.E.2d 112

224 Ga. 648

Randolph MEDLOCK, Mayor, et al. v. H. F. ALLISON.

H. F. ALLISON v. Randolph MEDLOCK, Mayor, et al.

Nos. 24736, 24737.

Supreme Court of Georgia.

Oct. 10, 1968.

Syllabus by the Court

1. Where the validity of a city ordinance is challenged, and on review by the Supreme Court of a judgment on demurrer this court holds that the ordinance is valid, the law of the case is thus fixed, and amended pleadings thereafter cannot again raise that question.

2. Unless a court finds that no conceivable circumstances would justify an ordinance, it must be upheld as valid. And where the evidence, as here, shows that safety of pedestrians and vehicles would be endangered if heavy trucks were allowed on the main street, that access to stores would be difficult, that noise and fumes from the big trucks would be unhealthy, and there are other streets usable though outside the city limits and requiring a longer distance of travel, it was error to enjoin the enforcement of the ordinance that prohibited the heavy trucks on a particular street, since the extra distance would not create irreparable harm and injury to the petitioners.

This case is fully reported in Allison v. Medlock, 224 Ga. 37, 159 S.E.2d 384. After the remittitur of this court was entered reversing the dismissal of the case, the court rendered its interlocutory order after a hearing, enjoining the enforcement of the city ordinance. The appeal is from this order, and the cross appeal is from the same order because the court refused to hold the ordinance unreasonable and void upon its face and in refusing to allow petitioners' amendment seeking to set up again a constitutional attack upon the ordinance.

Heard & Leverett, L. Clifford Adams, Jr., Elberton, for appellants.

William G. McRae, Atlanta, for appellee.

DUCKWORTH, Chief Justice.

On the former appearance, Allison v. Medlock, 224 Ga. 37, 159 S.E.2d 384, we ruled only on pleadings, and the meat of that decision is the ruling on page 41, 159 S.E.2d on page 387 as follows: 'The plaintiff is entitled to the opportunity of proving these allegations. For this reason, dismissal of the petition was erroneous.' The allegations referred to were that the permitted streets were narrow, unpaved, wholly inadequate for use by trucks without great danger to the drivers, the trucks, the residents and other traffic, and that the ordinance is void because it confines the plaintiff's use of his trucks within said municipality only upon streets which are unusable in wet weather, and wholly inadequate to withstand constant use by plaintiff of his trucks. This appeal is a review of the trial on evidence.

It was ruled on the former appearance that a municipality has the power to require trucks of certain weight to travel only designated streets. At p. 39, 159 S.E.2d at p. 386 we stated, 'The enactment of the ordinance, we conclude, is within the authority which the General Assembly has granted to this municipality, and therefore is not ultra vires.' It was also further held (p. 40, 159 S.E.2d p. 386): 'We find no merit in the contention that the ordinance unlawfully discriminates between local and...