Opinion
14686.
NOVEMBER 9, 1943.
Petition to revoke injunction. Before Judge Wyatt. Carroll superior court. July 17, 1943.
Willis Smith, for plaintiff in error.
L. L. Meadors, solicitor-general, contra.
A judgment denying relief on a petition brought by the owner of premises padlocked as a nuisance under the Code, § 58-101 et seq., on which there was a hearing, in which he asserted his lack of knowledge of the illegal purpose for which his tenant, the defendant in the original proceeding, used the premises, and praying that he (the owner) be permitted to reopen the same, will not be disturbed where it appears that on such hearing the evidence was sufficient to show guilty knowledge on the part of such owner.
No. 14686. NOVEMBER 9, 1943.
The plaintiff is the owner of what is referred to as a road house, or eating place, known as Dixie Drive Inn, near Carrollton, Georgia. It was operated by one Goff. The solicitor-general brought in the superior court a petition against Goff, in which it was represented that the inn was being operated in such a manner as to annoy the public; that it tended to injure the health and to corrupt the morals; that intoxicating liquors were there being kept and sold; that drinking and loitering were allowed on the premises; that the same amounted to a blind tiger, and that the place should be closed and abated as a nuisance. At the hearing an order was entered, declaring the said premises as a public nuisance, enjoining Goff from carrying on any business whatever on said premises, and that the building be padlocked until further order of the court. The present petition by Baskin recites the facts just stated, and alleges, that the building is one of a large value, is now unoccupied, and is deteriorating; that he was not a party to the proceeding to close the place; that Goff was merely his tenant, the landlord being at the time in the United States Army stationed in Texas, and had no knowledge of the said proceedings or of the judgment of the court thereon; and that he desires to open the place for the conduct of a legitimate business. He prays that the solicitor-general be required to show cause why the place should not be opened; and for general relief.
At the hearing after introduction of evidence, the judge entered the following order: "It appearing to the court in this case that the petitioner both knew about and actually participated in the conduct and unlawful acts that resulted in the property he owned being padlocked as a nuisance while rented to Harry Goff, it therefore appears that petitioner in this case is in no better position to have the padlock removed from the property than would be Harry Goff. It is therefore ordered, considered, and adjudged that the prayer of the petitioner be and the same is hereby denied." This order was excepted to, for the following reasons: (1) That the undisputed evidence shows that at the time the building was padlocked the plaintiff was serving in the U.S. Army, stationed in Texas, and had no notice of the proceeding whatsoever. (2) That he was not a party to the proceedings when said building was padlocked as a nuisance; that he was serving in the U.S. Army; and that no proceedings could be had against him at that time. (3) That the petition to close the building as a nuisance was against one Harry Goff, and the judgment on said petition was not, and is not binding upon the plaintiff in this case. (4) That the judgment of the court is contrary to evidence, against the weight of evidence, illegal, violative of the constitution of the State, art. 1, sec. 1, par. 2 ("Protection to persons and property is the paramount duty of government, and shall be impartial and complete"), and deprives the plaintiff of a valuable property right, which amounts to a confiscation of his property without a legal trial or hearing. (5) That said judgment is violative of the constitution of the State, art. 1, sec. 1, par. 3 ("No person shall be deprived of life, liberty, or property, except by due process of law"), and said judgment deprives him of property without due process of law, and without a hearing in court; which amounts to a confiscation of his property, and prevents legitimate and fair business. (6) That the judgment in this case, and the original order padlocking the property, are unreasonable, inequitable, and deprive the plaintiff of valuable property rights.
The evidence was ample to support the finding of fact by the judge that the petitioner had knowledge of and participated in the unlawful acts which resulted in the original order padlocking the premises while rented to Goff. It must be held that none of the points involved in the assignment of error can be resolved in accordance with the insistence of the plaintiff, if any regard at all is paid to the principle of stare decisis. It is doubtful whether in the reasons following the assignment of error it was intended to urge that his building could not be abated as a nuisance on account of the fact that at that time he was serving in the Army of the United States; but if such be the contention, it can not be sustained. See City of Cedartown v. Pickett, 194 Ga. 508 ( 22 S.E.2d 318). It may be conceded that the order padlocking the place wherein Goff, the tenant, was the only defendant did not ex proprio vigore subject Baskin, the owner, to the burden of a permanent injunction as to its use. Compare Henson v. Porter, 149 Ga. 83 ( 99 S.E. 118); Ogletree v. Atkinson, 195 Ga. 32 ( 22 S.E.2d 783). It does not, however, follow that the judge erred in refusing to grant to the owner the relief prayed for merely because he had no notice of the original proceeding. The very fact that the petition was entertained and there was a hearing thereon indicates a clear recognition by the solicitor-general, and by the judge, of the soundness of the basis of the ultimate contention of the plaintiff that the owner had a right to be heard in order to show, if he could, his innocence of any guilty knowledge on his part. He was on it given a hearing, and it was then shown that he had knowledge of the illegal purpose for which the premises were being used. The decision therefore accords with what was ruled in Henson v. Porter, and Ogletree v. Atkinson, supra. There is no merit in the constitutional attack. Mack v. Westbrook, 148 Ga. 690 ( 98 S.E. 339). No error is shown.
Judgment affirmed. All the Justices concur, except Atkinson and Wyatt, JJ., disqualified.