Opinion
16632.
MAY 9, 1949. REHEARING DENIED JUNE 16, 1949.
Injunction. Before Judge Moore. Fulton Superior Court. February 9, 1949.
J. C. Savage, J. C. Murphy, J. M. B. Bloodworth, and John E. Feagin, for plaintiffs in error.
Augustine Sams and G. H. Wotton, contra.
1. "There is no misjoinder of parties or of causes of action, even if the petition concerns things of a different nature against several defendants whose rights are distinct, if it sets forth one connected interest among them all, centering in the point in issue in the case." Hermann v. Mobley, 172 Ga. 380 (3) ( 158 S.E. 38), and cases cited; Code, § 37-1007.
2. "A bill is not multifarious because all of the defendants are not interested in all of the matters contained in the suit. It is sufficient if each party has an interest in some matter in the suit which is common to all, and that they are connected with the others." Blaisdell v. Bohr, 68 Ga. 56 (2); Brown v. Wilcox, 147 Ga. 546 (4) ( 94 S.E. 993); Smith v. Hancock, 163 Ga. 222, 233 (3) ( 136 S.E. 52); Crandall v. Shepard, 166 Ga. 396, 401 (2) ( 143 S.E. 587); City of Macon v. Ries, 179 Ga. 320, 326 ( 176 S.E. 21).
( a) "The fact that the individual interests of the plaintiffs may in some respects differ, or that all do not have an interest in all the matters embraced in such an equitable suit, will not, as to individual plaintiffs, render the petition multifarious or subject to attack for misjoinder of parties or causes of action, if each of the plaintiffs has an essential interest common to all, with a common connection and right against the defendant. Equity, taking jurisdiction, will determine all of the matters in controversy and grant appropriate relief, equitable or legal, so as to do complete justice between the parties." O'Jay Spread Co. v. Hicks, 185 Ga. 507, 512 ( 195 S.E. 564), and cases cited.
3. Under the foregoing rules, there is no misjoinder of causes of action or of parties plaintiff in the present case, and the petition is not multifarious. The property rights of all the petitioners are affected by the proceedings instituted, and by the acts of the defendants, who are alleged to be proceeding under a void act of the General Assembly (Ga. L. 1947, p. 924), and an unconstitutional, illegal and void ordinance enacted by the defendant city pursuant to the powers purported to be conferred by the act.
4. "All persons who are directly or consequentially interested in the event of the suit are properly made parties to a bill in equity, so as to prevent a multiplicity of suits by or against parties at once or successively affected by the original case." Blaisdell v. Bohr, 68 Ga. 56 (3) (supra); Georgia Peruvian Ochre Co. v. Cherokee Ochre Co., 152 Ga. 150, 155 ( 108 S.E. 609); Benton v. Turk, 188 Ga. 710, 730 ( 4 S.E.2d 580). Injunction will lie to prevent a multiplicity of actions. Burns v. Hale, 162 Ga. 336 (3) ( 133 S.E. 857).
5. Under the rulings of this court in Smith v. McMichael, 203 Ga. 74 ( 45 S.E.2d 431), Cox v. Hapeville, 203 Ga. 263 ( 46 S.E.2d 122), Smith v. Augusta, 203 Ga. 511 ( 47 S.E.2d 582), and Bergman v. Dutton, 203 Ga. 672 ( 48 S.E.2d 101), the act of the General Assembly (attacked by the petition) approved March 27, 1947 (Ga. L. 1947, p. 924), is unconstitutional and void. The plaintiffs in error have made no contrary contention in this court.
6. To determine what is by law a nuisance is an exercise of judicial power, and only those things which are by the common or statute law declared to be nuisance per se, or which in their very nature are such, may be summarily suppressed. Under the general law of this State, the proper tribunal "to hear and determine the question of the existence of such nuisance" is the police court in cities having a population of 20,000 or more. Code, § 72-401.
( a) Reasonable notice to the property owner of the time and place of hearing must precede any judgment ordering the abatement of a nuisance (by the destruction of private property). Western Atlantic R. Co. v. Atlanta, 113 Ga. 537 ( 38 S.E. 996); Griggs v. Macon, 154 Ga. 519 ( 114 S.E. 899).
7. Notice to the property owners, with an opportunity to be heard, was not given prior to the service of notices by the defendant Harper, all of which notices contained the statement, "that an examination of the premises described reveals that the same constitutes a nuisance"; and in some of which there was further language that the building had been "condemned" as a nuisance. Under the general law of this State (Code, § 72-401), the Building Inspector of the City of Atlanta was not authorized to substitute his judgment for that of the tribunal fixed by law, and serve notices on the property owners that their property "constitutes a nuisance," or that it had been "condemned." Neither the General Assembly of this State, nor any municipality thereof, has authority to suspend the "due-process" clauses of the Federal and State Constitutions (Federal Constitution, art. 14, sec. 1, par. 1, Code, Ann., § 1-815; State Constitution, art. 1, sec. 1, par. 3, Code, Ann., § 2-103); and to provide for the destruction of private property without notice to the owner of the time and place of hearing, prior to any judgment of condemnation.
8. The act of the General Assembly (Ga. L. 1947, p. 924), purporting to convey slum-clearance powers upon the governing authority of the City of Atlanta, is unconstitutional and void. The ordinance enacted by the City of Atlanta exceeds any valid charter powers of the city, and is therefore to this extent ultra vires and void. By combining their attacks upon the act of the General Assembly and ordinance referred to, the petitioners have avoided a multiplicity of suits. The petition stated a cause of action for the relief sought.
Judgment affirmed. All the Justices concur.
No. 16632. MAY 9, 1949. REHEARING DENIED JUNE 16, 1949.
C. G. Aycock and others, alleging themselves to be citizens and taxpayers of the City of Atlanta, filed an equitable petition to enjoin the city and O. M. Harper, building inspector of the city, named as defendants, from further proceedings under an alleged void act and ordinance. They alleged that the defendants were proceeding under an act of the General Assembly of Georgia, approved March 27, 1947 (Ga. L. 1947, p. 924), which is a local or special act, and is unconstitutional, null, and void, being in violation of the Constitution, art. 3, sec. 7, par. 15 (Code, Ann., § 2-1915). The defendants further purport to act under an unconstitutional, illegal, and void ordinance of the city, alleged to have been passed pursuant to the powers conferred by the illegal and void act of 1947. A copy of the ordinance is duly attached to the petition as an exhibit; also attached are certain notices alleged to have been served upon the petitioners by the defendant, O. M. Harper.
Section 1 of the ordinance under attack provides that any building or structure perilous to life or property by reason of its construction or condition, the quantity of its contents, the use of the building, deficiencies in its fire-alarm or fire-prevention equipment, conditions of its construction likely to cause the spreading of fire, or impede the combating of fire, etc., are "conditions constituting nuisance."
Section 3 of the ordinance provides that all buildings or structures found to have defects set forth in section 3 shall be deemed a nuisance.
Section 4 provides that, whenever the building inspector has information that any building is alleged to be a nuisance, he shall cause an examination to be made and if, in his opinion, after the examination, the building constitutes a nuisance, the inspector shall serve notice upon the owner or the person in possession, "directing him to abate the nuisance." Upon failure of the person to obey the notice, the building inspector shall cause a summons to be issued to such person requiring him to show cause at a time and place named therein why the nuisance should not be abated, and, if the alleged nuisance cannot be abated, "why the said building should not be demolished."
Immediately following is this provision: "If, upon a hearing of the case, the Recorder determines that such building cannot be repaired or put in a safe condition, he shall render a judgment that the building be demolished by the defendant within a specified number of days and that, upon failure of defendant to demolish it, then the same shall be done by the City of Atlanta at the expense of the defendant. In the event that the Recorder upon such hearing shall find that the building constitutes a nuisance, but that the nuisance can be abated by the doing of certain things to said building, such as repairs, changes or alterations, the Recorder shall provide in his judgment how and in what manner such nuisance may be abated and shall designate the time within which such acts must be begun. In such case, the judgment shall further provide that if the defendant fails to begin compliance with said judgment within the time specified, notices shall be placed at the entrances of the building, stating that the premises therein have been declared to be a nuisance and unsafe, and that the entrances to said premises upon the sidewalk or street or alley shall be blocked off by barriers or guardrails. In the event of an appeal being taken from the judgment, pending such appeal the Building Inspector shall cause to be erected on the street or sidewalk or alley adjacent to the entrances of the building signs stating that such building has been declared to be dangerous and unsafe. In the event that upon a hearing as described above the Recorder shall find that the building in such case constitutes a nuisance and orders the same abated within a reasonable time, all such persons properly made party defendant shall be required to correct and remedy the described violation or defect and abate the nuisance within the time provided in the Recorder's judgment and each ten days the prohibited conditions are maintained subsequent to the expiration of the time fixed in said judgment shall constitute an offense under this ordinance and such persons, upon conviction, shall be punished by a fine not exceeding Five Hundred ($500.00) Dollars or shall be sentenced to work upon the public works not to exceed sixty days, either or both penalties to be imposed in the discretion of the Recorder."
The notices served on the petitioner, C. G. Aycock, contain the following language: "Dear Owner: The City of Atlanta has inspected the property at the above address and finds the building structurally unsafe, unsanitary, and a fire hazard. This is to notify you that I have condemned the same as a nuisance and order the building vacated and demolished or made to comply with Slum Clearance Requirements, a copy of which is enclosed, within 90 days from date of this notice." The building inspector served a like notice on another of the petitioners, Mrs. Blanche O. Chapman. All notices state "that an examination of the premises described reveals that the same constitutes a nuisance," and most of them list repairs required to be made. All notices (approximately 25) conclude with the following language: "You are hereby notified to abate said nuisance and place said premises in a safe condition on or before [a specified date]. Upon your failure or refusal to comply with this notice, the City of Atlanta will institute proceedings against you in the Recorder's Court of the City of Atlanta, as provided by law and the ordinances of said city."
The defendants demurred on the general grounds: that (a) the petition sets forth no cause of action; (b) the petitioners have an adequate remedy at law; (c) there is no equity in the petition; and on the special grounds, that (a) there is a misjoinder of parties plaintiff; (b) a misjoinder of causes of action; (c) the petition is multifarious. the demurrers were overruled, and the exception is to that judgment.