Sirota v. Kay Homes, Inc.
| Decision Date | 15 May 1951 |
| Docket Number | No. 17451,17451 |
| Citation | 65 S.E.2d 597,208 Ga. 113 |
| Parties | SIROTA et al. v. KAY HOMES, Inc. |
| Court | Georgia Supreme Court |
M. Neil Andrews, I. T. Cohen, Charles W. Bergman and Saul Blau, all of Atlanta, for plaintiffs in error.
Grant, Wiggins, Grizzard & Smith, Wm. G. Grant, and Sidney Parks, all of Atlanta. for defendant in error.
Syllabus Opinion by the Court
The plaintiffs in error, who were also plaintiffs in the trial court, had for some time before this litigation was instituted owned and occupied as homes certain parcels of realty in the City of Atlanta which are separate parts of an area restrictively zoned for residential purposes by an ordinance of December 20, 1929. On the defendant's application therefor, the Mayor and General Council of the City of Atlanta, on December 6, 1950, passed an ordinance rezoning a described vacant portion of the area here involved from residence to business uses. Alleging that the rezoning ordinance was void for want of required notice, the plaintiffs sought and were denied injunctive relief. The exception here is to that judgment. Held:
1. The grant or refusal of an interlocutory injunction rests in the sound legal discretion of the trial judge, according to the circumstances of each case Code, § 55-108; and where the evidence is conflicting, his discretion will not be controlled, unless it is apparent that he has abused it. Jones v. Lanier Development Co., 188 Ga. 141, 145(1), 2 S.E.2d 923, and cit. But the rule that the Supreme Court will not interfere with the discretion of the trial judge in granting or refusing an interlocutory injunction where the evidence is conflicting, does not apply when the question to be decided by him is one of law. Washington National Ins. Co. v. Mayor, etc., of Savannah, 196 Ga. 126, 26 S.E. 359.
2. A property owner residing in that portion of a city which has been zoned exclusively for residential purposes may properly apply for injunctive relief to restrain the construction of a building to be used for business purposes within that area, Snow v. Johnston, 197 Ga. 146(1), 28 S.E.2d 270, and such owner is not relegated to a writ of certiorari to review an action of the zoning authority alleged to be void; and that is true because the writ of certiorari does not lie to review void action. Allied Mortgage Cos. v. Gilbert, 189 Ga. 756, 8 S.E.2d 45; Georgia Public Service Comm. v. Atlanta Gas Light Co., 205 Ga. 863, 55 S.E.2d 618; Hardin v. Croft, 207 Ga. 115, 60 S.E.2d 395.
3. It is essential to the validity of a municipal ordinance rezoning realty that notice be given, and opportunity for hearing be afforded, to those whose rights will be affected by the proposed zoning regulation. Jennings v. Suggs, 180 Ga. 141, 178 S.E. 282. In the instant case, the evidence shows without dispute that the property sought to be rezoned is a wooded or partially wooded area, lying along a named street for a distance of 864 feet, and that the only sign posted for notice of its proposed rezoning was one measuring three feet by four feet which was placed on a tree about midway its length. There was introduced in evidence a certified copy of an ordinance of the City of Atlanta, passed February 17, 1941, and approved February 19, 1941, the first sentence of which is as follows: "Public notice' of a hearing on petitions to amend the zoning ordinance means that such property or properties under petition shall be placarded by petitioner or petitioners with a sign or signs measuring at least 12 square feet.' (Italics ours.) The Code of the City of Atlanta, as adopted April 6, 1942, and approved April 9, 1942, has a subsection numbered 93-202(o), which was also introduced in evidence, and the first sentence of it reads: "Public notice' of a hearing on petitions to amend zoning ordinance means that any property or properties under petition shall be placarded by petitioner or petitioners with a sign of signs measuring at least 12 feet square.' (Italicds ours.) The city's Code of 1942, as the record shows, has an adopting ordinance, section 4 of which reads as follows: 'All ordinances and parts of ordinances in conflict herewith are hereby repealed.' Respecting the notice presently required for rezoning, the defendant in error contends that the size of the sign which must be posted for that purpose is one containing at least '12 square feet' as prescribed by the ordinance of 1941, and not one at least '12 feet square' as fixed by the city's Code of 1942, because the change in dimension 'was the result of a clerical or typographical error on the part of the codifiers in compiling the city Code.' To this we do not agree. Where the law is changed by official codification, it must be given effect, not because of any power of legislation in the codifiers, but because of the adopting statute. Atlanta Coach Co. v. Simmons, 184 Ga. 1, 190 S.E. 610, 614; Maddox v. First National...
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