Ralston Purina Co. v. Acrey

• Decision Date: 08 April 1965
• Docket Number: No. 22880,22880
• Citation: 220 Ga. 788,142 S.E.2d 66
• Parties: RALSTON PURINA COMPANY, Inc. v. Everett H. ACREY.
• Court: Georgia Supreme Court

Page 66

142 S.E.2d 66

220 Ga. 788

RALSTON PURINA COMPANY, Inc. v. Everett H. ACREY.

No. 22880.

Supreme Court of Georgia.

April 8, 1965.

Syllabus by the Court

1. (a) Where the petition alleges that the defendant commenced the operations which are sought to be enjoined almost a year and a half after the adoption of a zoning ordinance, the mere possibility that construction of the plant began before the adoption of the zoning ordinance does not amount to an allegation of the existence of a prior nonconforming use allowed by Code Ann. § 69-835.

(b) Since no ground upon which the doctrine of laches might be applied appears affirmatively from the allegations of the petition, it was not subject to general demurrer.

2. Where a general law provides ample authority for cities of the State to pass zoning ordinances, whether a subsequent local law, enacted to clothe a particular city with the same authority, if valid does not affect the power of the city to adopt a zoning ordinance in conformity with the general law.

Everette H. Acrey, a citizen, property owner and taxpayer of the City of Cornelia, brought this equitable suit in Habersham Superior Court against Ralston Purina Company, Inc., seeking to enjoin the defendant's alleged violation of zoning ordinance of the City of Cornelia. The petition alleged that the Mayor and City Council of Cornelia adopted the zoning ordinance on June 4, 1962; that the defendant maintains, uses and operates a rendering plant located in an industrial zone within 400 yards of the plaintiff's home which is located in a residential zone; that the defendant completed construction of the rendering plant in November, 1963, and within a few days thereafter commenced operation of the plant; that the defendant has been operating the plant 24 hours a day, five days a week, since commencing; that the defendant daily brings to its plant the offal from approximately 180,000 chickens and processes and reduces the offal by cooking and pulverizing various portions into meal and by rendering it to produce large quantities of fats and oils; that such process gives off offensive and obnoxious odors; that more than 100 dwelling houses are within one-fourth mile of such illegally operated plant and unless equity intervenes a multiplicity of suits will result; that the operation and maintenance of the plant as described is violative of certain portions of the city's zoning ordinance; that the plaintiff has no adequate remedy at law and is entitled under Georgia law and specifically Ga.L.1946, pp. 191, 202 (Code Ann. § 69-839), to equitable relief in the form of temporary and permanent injunction.

The pertinent provisions of the zoning ordinance are attached as an exhibit to the petition. The enacting clause sets out that the city commission 'deems it necessary in order to lessen congestion in the streets; to secure safety from fire panic and other avoid undue concentration of population; to prevent the overcrowding of land, to avoid undue concentration of pupulation; to facilitate the adequate provisions of transportation, water sewerage, schools, parks and other public requirements and otherwise to promote the public safety, health, convenience and general welfare in accordance with a comprehensive plan.' The ordinance recites that it was adopted 'in pursuance of the authority granted by the Charter of Cornelia as amended by the Act approved March 9, 1959 (Ga.L.1959, p. 2178), as amended.'

Among the purposes of the ordinance are: 'to lessen congestion in the streets; to secure safety from fire, panic, and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population; to facilitate the adequate provision of transportation, water sewerage, schools, parks, and other public requirements; to sustain the stability of neighborhoods; to protect property against blight and depreciation; to secure economy in governmental expenditure; to conserve the value of buildings; to encourage the most appropriate use of land and buildings. * * *'

Under the provisions relating to industrial districts the ordinance states that the following uses are prohibited within an I (Industrial) Zone: distillation of bones; garbage, offal, dead animal reduction or dumping; rendering or refining of fats and oils; any other use that is noxious or offensive by reason of the emission or creation of odor, dust, fumes, smoke, gas, noise, vibration or similar substances or conditions which in the opinion of the planning commission would be detrimental to the community interest.

The defendant demurred to the petition on the following grounds: that the petition sets forth no cause of action; that the plaintiff is not entitled to the relief sought; that the zoning ordinance upon which relief is sought is null and void because the 1959 Act, supra, upon which it is based contravenes Art. I, Sec. IV, Par. I of the Georgia Constitution (Code Ann. § 2-401) since the 1959 Act is a special law for which provision had been made by a general law, Ga.L.1946, p. 191; that it affirmatively appears from the petition that the City of Cornelia has not elected to come within the provisions of the 1946 Act; that the zoning ordinance is null and void because the special law upon which it is based contravenes Art. III, Sec. VII, Par. VIII of the Georgia Constitution (Code Ann. § 2-1908) in that it contains matter different from that expressed in the title.

The trial judge overruled all the grounds of the...