Morrow v. City of Atlanta

• Citation: 133 S.E. 345,162 Ga. 228
• Docket Number: 5129.
• Decision Date: 13 May 1926
• Parties: MORROW v. CITY OF ATLANTA.
• Court: Georgia Supreme Court

133 S.E. 345

162 Ga. 228

MORROW v. CITY OF ATLANTA.

No. 5129.

Supreme Court of Georgia

May 13, 1926

Syllabus by the Court.

The assignment of error in the bill of exceptions is sufficiently specific to require this court to determine whether the judgment of the trial court is contrary to law under the pleadings and evidence in the case.

Under the ruling of this court in Smith v. Atlanta, 161 Ga.769, 132 S.E. 66, the municipal authorities of the city of Atlanta are not authorized to interfere with the use of plaintiff's garage in the rear of his residence for carrying on the lawful business of storing and repairing automobile tires. The court erred in granting a temporary restraining order enjoining the property owner from using his private property for the purpose stated. There was no evidence to show that the existence of the business in question tends to jeopardize neighboring property by fire or otherwise, or that a nuisance had been created or was being maintained, and, even if so, a proceeding to abate the nuisance should have been applied as the proper remedy.

In so far as the zoning ordinance of the city of Atlanta, adopted April 11, 1922, seeks to deprive the owner of real estate thereafter designated as an apartment zone of the right to use his realty in the pursuit of a business recognized as lawful, such ordinance is unconstitutional and void.

As a general rule, equity has no jurisdiction to enjoin a criminal or quasi criminal prosecution; but an exception is well recognized that, where a prosecution for a violation of a municipal ordinance is threatened which will result in depriving the accused of his right to exercise a business which in and of itself is perfectly lawful, equity will interfere, and afford adequate relief.

Additional Syllabus by Editorial Staff.

Constitutional questions must be directly and expressly raised in lower court, and portions of Constitution relied on must be specifically pleaded.

Error from Superior Court, Fulton County; E. D. Thomas, Judge.

Suit by M. T. Morrow against the City of Atlanta. Judgment for defendant, and plaintiff brings error. Reversed.

John M Morrow, of Atlanta, for plaintiff in error.

J. L Mayson and C. S. Winn, both of Atlanta, for defendant in error.

RUSSELL C.J.

M. T Morrow filed a petition for injunction, which, upon interlocutory hearing, was granted in part, but also partly refused as to a matter deemed most important by the plaintiff, and hence the exception in the present case. As appears from the record, Morrow is a taxpayer who owns No. 55 Norcross street in the city of Atlanta, Ga. The lot upon which his dwelling-house is situated is approximately 47x45x237 feet, fronting 47 feet on Norcross street and running back 237 feet along an alley which affords means of egress and access to the rear of the lot. In 1920, two years before the passage of the ordinance which will hereinafter be referred to as the zoning ordinance approved April 11, 1922, he built a garage in the rear of his lot, parallel with, and opening upon, the alley just referred to. On December 2, 1924, Morrow was granted a permit by C.J. Bowen, inspector of buildings, to make additions and repairs to this garage, and the customary fees were paid. The expense of the additional building was between $600 and $700. Morrow was engaged in the tire repair business for eight or ten years at 66 Edgewood avenue, but about April 1, 1925, he moved to smaller quarters at 50 Edgewood avenue, where he could not do repairs as before, but only sell tires and tools. He thereupon "rigged up" the back end of his garage, and proceeded there to make such repairs as he had been accustomed to make at 66 Edgewood avenue before it became necessary to move to 50 Edgewood avenue. It is alleged that the building inspector ordered the repair equipment moved, and threatened to make a case against Morrow unless he moved it; that the machinery was very expensive; that Morrow had no other place to keep it; that he would suffer irreparable injury and damage if forced to move out; that he had no adequate remedy at law; and "that his property is not worth anything to him if he cannot use it legitimately." The petition was amended so as to show that the working place did not constitute a nuisance, and paragraphs 5, 21, 26, [133 S.E. 346] and 27 of what is known as the zoning ordinance were set forth, and the petitioner contended that he had not violated the ordinance, and that the acts and doings of the building inspector were arbitrary and unreasonable. It was further contended that, if the acts of the building inspector previously set forth were necessary in the performance of his duties under the zoning ordinance then the ordinance is unconstitutional, in that it violates "article 1, § 10, par. 1, of the Constitution of the United States, the clause which provides that no state shall pass a law impairing the obligation of contracts, and also article 14 of article 8 of Amendments to the United States Constitution, the section which provides that no state shall deprive any person of life, liberty, or property without due process of law; and article 1, § 1, par. 2, of the state Constitution, which provides that protection to person and property is the paramount duty of government, and shall be impartial and complete, and paragraph 3 of the same article, which provides that no person shall be deprived of life, liberty, or property, except by due process of law."

By demurrer and answer the city of Atlanta resisted the grant of an injunction, and insists here, as in the court below, that-

"This is an effort to enjoin a quasi criminal prosecution, and a court of equity has no jurisdiction in such cases, under the allegations and proof in this case. Jones v. Carlton, 146 Ga. 1, 90 S.E. 278, and cases cited."

"Plaintiff in error, under an amendment to the character of the City of Atlanta, which provides for the zoning law had a right of appeal to the board of appeals, and, not having exercised this right, cannot apply to a court of equity for a remedy, because he has not exhausted the remedies which the law provides. Furthermore, said law gives the right of certiorari in case said board decides improperly."

"The petition of the plaintiff in error shows a violation of the permit. One seeking equity must do equity."

"The petition of the plaintiff in error alleges that he had complied with the ordinance; that the building inspector was acting arbitrarily; that, under the zoning law, he was entitled to an injunction. The question of the validity of the zoning ordinance is not raised in the petition. Morrow puts in evidence the city ordinance. The only question, therefore, is whether or not he complied with it. In the brief for plaintiff in error we find that positions are

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