Nichols v. Pirkle
| Decision Date | 12 June 1947 |
| Docket Number | 15855. |
| Citation | 43 S.E.2d 306,202 Ga. 372 |
| Parties | NICHOLS et al. v. PIRKLE. |
| Court | Georgia Supreme Court |
Statement of facts by JENKINS, Chief Justice:
J. C Pirkle, Sr., brought suit against Howard Nichols to abate a public nuisance, for the recovery of damages to his property and for personal injuries to the health of himself and of his wife resulting therefrom. The petition alleged that the defendant was operating a trailer park on property adjacent to that of the plaintiff, and complained of the following conditions: 'The disposal of waste food, garbage excrement, and polluted water from washing dishes and clothes upon the surface of the ground, with the result that noxious and offensive odors were carried through the air to the plaintiff's property, and created a breeding place for flies and mosquitoes; the use of loud, vulgar, profane, and obscene language throughout the day and night by defendant's patrons; the maintenance of floodlights in such a manner as to illuminate plaintiff's property, and to interfere with his sleep; and the maintaining of the entrance to the trailer park in such a manner as to cause confusion with plaintiff's driveway, with the result that plaintiff was constantly annoyed by defendant's patrons entering upon his property and disturbing him at all hours of the day and night.'
By amendment it was alleged that the defendant was operating the trailer park for money or profit without permission of the county authorities as required by the act of the General Assembly, Ga. L. 1945, p. 482, which act provides in part as follows: 'Any person, firm or corporation, establishing, maintaining or operating any such establishment as herein set forth without securing said permission, shall be guilty of a misdemeanor and such establishment shall be subject to be abated as a nuisance.' The petition was subsequently further amended by alleging that on January 11, 1947, the defendants, through their counsel and others, created an alleged non-profit corporation under the name and style of Southern Hospitality, Inc., in an effort to circumvent the requirement of law that they must have permission of the county authorities to operate a trailer park; and praying that Southern Hospitality, Inc., together with its treasurer, Winona Fricker, be made parties defendant.
The defendants demurred to the petition both generally and specially, and attacked therein the constitutionality of the abovementioned act of the legislature, and also certain allegations of the petition as to the amount of damages. Exceptions are to the order overruling the demurrers, making parties defendant as prayed, and to the entering of an order enjoining the defendants from operating the trailer park until such time as they obtained permission of the county authorities, and reviving the provisions of a previous restraining order regulating the operation of the business in the event permission from the county authorities was obtained.
Luther Alverson and Robt. L. O'Neil, both of Atlanta, for plaintiffs in error.
Coogler & Kemp, of Jonesboro, and Kelley, Hamrick & Coogler, of Atlanta, for defendant in error.
Syllabus Opinion by the Court.
1. Code, § 72-202.
(a) The allegation of the instant petition with reference to special injury sustained by the plaintiff to his health and to his property were sufficient to authorize an action in his own name to abate the alleged public nuisance complained of; and while, as hereinafter shown, the additional allegations of the petition seeking to set up and recover the actual amount of damages were subject to special demurrer for failing to allege sufficient facts as a basis for computing the amount of such special damages, this defect relates, not to the existence of the special injury complained of as related to an action to abate, but only to the valuation placed upon such injuries as related to the prayer for the recovery of damages. Accordingly, the court did not err in overruling the demurrer to the petition to abate the nuisance on the ground that a private individual cannot bring an action to abate a public nuisance.
2. This court has twice upheld the constitutionality of the act of the General Assembly, Ga.L. 1937, p. 624, requiring the licensing of the businesses therein enumerated, when attacked upon the ground that it was violative of the due-process clause of the State and Federal Constitutions, Poss v. Norris, 197 Ga. 513, 516(1), 29 S.E.2d 705; and as being violative of the equal-protection clause of the State and Federal Constitutions, Ingram v. State, 193 Ga. 565, 19 S.E.2d 493; and since the act now under attack, Ga.L. 1945, p. 482, on the same grounds is merely amendatory of the act of 1937 and only to the extent that it makes certain other similar enterprises, including the operation of a trailer park, subject to its provisions, and since the constitutional question is raised by demurrer, and there is no question presented as to an arbitrary, capricious, or fraudulent refusal to grant permission to operate a trailer park, it follows that the only question for determination with respect to these grounds of attack is whether or not the business of operating a trailer park is so distinguishable from the other types of business to which the act has been held applicable as would make unconstitutional the provisions of the act regulating this type of business. In this respect it is sufficient to say that the congestion of living conditions inherent in a trailer park, together with the uncertainty as to sanitary conditions, including water, sewage, cooking, bathing and washing facilities, and the fact that the occupants of a trailer park may be to a large extent transitory, are all very patent reasons why such a business is so affected with a public interest as to make it a proper subject for legislative regulation under the broad police powers of the State.
(a) The plaintiff in error further attacks the constitutionality of the above statute as violative of article I, section IV paragraph I of the State Constitution, Code, § 2-401, which declares that 'Laws of a general nature shall have uniform operation throughout the State.' It is urged that the classification of counties into those having populations in excess of three thousand inhabitants, and those having less than that number, and making the act applicable only to tourist parks operated in counties having more than three thousand inhabitants violates this provision of the Constitution. This contention is clearly without merit, in view of the repeated rulings by this court to the effect that laws operating uniformly throughout the State with respect to the subject matter, but applying only to cities or counties of a common class having a certain number of inhabitants or more, are...
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...interest as to make it a proper subject for legislative regulation under the broad police powers of the State. Nichols v. Pirkle, 202 Ga. 372, 43 S.E.2d 306, 309 (1947). See generally 2 R. Anderson, American Law of Zoning §§ 11.49-.51 (1968). The record clearly reflects public health concer......
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