Staub v. Mayor, etc., of Baxley, 18601

• Citation: 211 Ga. 1,83 S.E.2d 606
• Decision Date: 13 September 1954
• Docket Number: No. 18601,18601
• Parties: STAUB et al. v. MAYOR, etc., of BAXLEY et al.
• Court: Supreme Court of Georgia

Page 606

83 S.E.2d 606

211 Ga. 1

STAUB et al. v. MAYOR, etc., of BAXLEY et al.

No. 18601.

Supreme Court of Georgia.

Sept. 13, 1954.

Wilson & Wilson, Waycross, Poole, Pearce & Hall, Fred W. Elarbee, Jr., Atlanta, for plaintiff in error.

J. H. Highsmith, Baxley, for defendants in error.

Syllabus Opinion by the Court

ALMAND, Justice.

Rose Staub and Mamie Merritt brought suit against the City of Baxley, Georgia, the Mayor and Council of the City of Baxley, Georgia, and the Chief of Police of Baxley, Georgia, alleging in substance that they were representatives of a labor union engaged in the business of soliciting members for the labor union; that the City of Baxley has enacted an ordinance which requires the representatives of any organization soliciting membership in an organization requiring the payment of dues by its members to secure a permit and pay a license fee of $200 and $500 for each member secured; that the petitioners have been arrested and charged with failure to comply with the ordinance; that the case was then pending in the recorder's court and threats had been made to make other cases if they again solicited memberships in the organization without complying with the terms of the ordinance. It was alleged that the ordinance was invalid for reasons set out in the petition and should not be enforced against them; that an actual controversy existed, and they were entitled under the Declaratory Judgment Act to have their rights declared; and that the city and its officers should be temporarily restrained and enjoined until the declaration of rights could be secured. An ex parte order was signed requiring the defendants to show cause on a named date why they should not be temporarily restrained and enjoined as prayed. The defendants demurred generally to the petition, on the grounds (a) the petition fails to set out a cause of action either at law or in equity; (b) the plaintiffs have an adequate remedy at law; (c) it affirmatively appears that the plaintiffs seek to have equity enjoin a municipal corporation from prosecutions for the violation of a municipal ordinance where no property rights are involved; (d) there are no allegations that the plaintiffs have made application to the city for a permit or that the same has been refused; and (e) the attack is made only upon one section of the ordinance. At a hearing, the general demurrer to the petition was sustained. Held:

1. The Declaratory Judgment Act, Ga.L.1945, p. 137, Code Ann.Supp. § 110-1101 et seq., does not give the superior court authority to render a declaratory judgment as to the validity or invalidity of a municipal ordinance where there is a pending prosecution of the plaintiff by the defendant municipality for a violation of the ordinance. See Darnell v. Tate, 206 Ga. 576(2), 58 S.E.2d 160.

2. Equity takes no part in the administration of the criminal law. Code, § 55-102. Prosecutions for violations of municipal ordinances which are punishable by fine or imprisonment are quasi-criminal in nature and come within the above rule. Starnes v. City of Atlanta, 139 Ga. 531(1), 77 S.E. 381. The fact that repeated arrests and prosecutions may be instituted under an invalid ordinance will not, without more, justify equitable interference. Jewel Tea Co. v. City of Cartersville, 185 Ga. 799, 196 S.E. 712. Reference to the pleaded facts in the instant case shows that the primary reason why the plaintiffs seek injunctive relief is to restrain the defendants from prosecuting the plaintiffs under a pending charge, and from further prosecutions, for alleged violations of a municipal ordinance. Where, as in this case, the ordinance attempted to be enforced appears to be quasi criminal in character, it must be presumed from the record that the plaintiffs are seeking to prevent the defendants from continuing prosecutions, and the court below had no authority to enjoin such enforcement. Where the allegations of the petition are insufficient to bring the case without the general rule that equity will not interfere with prosecutions by a municipality for alleged violations of a municipal ordinance quasi-criminal in character, such prosecutions will not be enjoined in equity. See Starnes v. City of Atlanta, supra; Mayor, etc. of Athens v. Co-Op Cab Co., 207 Ga. 505(2), 62 S.E.2d 906. Where, as in the present case, the ordinance involved, with reference to the means provided for its enforcement, is purely penal in nature, a court has no power, upon an application for injunction against its enforcement, to inquire into its validity, either upon constitutional or other grounds, and to enjoin the city from attempting to enforce it. 'If the ordinance is invalid, by reason of its unconstitutionality, or for other cause, such invalidity would be a complete defense to any prosecution that might be instituted for its violation.' City of Bainbridge v. Reynolds, 111 Ga. 758, 760, 36 S.E. 935. The plaintiffs have an adequate remedy at law, and the court did not err in sustaining this ground of demurrer.

Judgment affirmed.

All the Justices concur except WYATT, P. J., who dissents.

WYATT, Presiding Justice (dissenting).

I cannot agree with the majority opinion. It is my view that this court is without jurisdiction in the instant case. This case is expressly brought under the provisions of the Declaratory Judgments Act, Ga.L.1945, p. 137, Code Ann.Supp. § 110-1101 et seq. This court has previously held that, in order for a declaratory-judgment case...