Opinion
16410.
NOVEMBER 17, 1948.
Injunction. Before Judge Knox. Glynn Superior Court. July 22, 1948.
Reese, Bennet Gilbert and Nightingale Liles, for plaintiffs in error.
A. A. Nathan and Calvin B. Oliver, contra.
1. The use of a city's streets for the transportation of passengers for hire in a taxicab is not an inherent right, but a mere privilege which the municipality, in the exercise of its discretion, may grant or refuse. Schlesinger v. Atlanta, 161 Ga. 148 ( 129 S.E. 861); Clem v. LaGrange, 169 Ga. 51 ( 149 S.E. 638, 65 A.L.R. 1361); McWhorter v. Settle, 202 Ga. 334 ( 43 S.E.2d 247). It is a privilege which the city may in the exercise of its discretion grant to one and deny to another. Rogers v. Carr, 203 Ga. 594 ( 47 S.E.2d 813). Being a privilege only, it does not come under the protection of the State and Federal Constitutions, since they protect rights alone. Schlesinger v. Atlanta, supra. In a proper case, it is the intent and purpose of our Declaratory Judgment Act (Ga. L. 1945, p. 137) to settle and afford relief from uncertainty and insecurity with respect to rights and other legal relations between the parties. Clein v. Kaplan, 201 Ga. 396 ( 40 S.E.2d 133). But it is not the function of the act to settle controversies, and make binding declarations, concerning a mere privilege. There must be in the controversy a legally protectible interest existing in virtue of some public law or ordinance. Compare McWhorter v. Settle, supra, where the legal right was established by ordinance. See also Borchard on Declaratory Judgments, p. 48.
2. "Equity will take no part in the administration of the criminal law. It will neither aid criminal courts in the exercise of their jurisdiction, nor will it restrain or obstruct them." Code, § 55-102. The same rule applies in quasi-criminal proceedings. Starnes v. Atlanta, 139 Ga. 531 ( 77 S.E. 381). There is no exception to this rule. City of Atlanta v. Universal Film Exchanges, 201 Ga. 463 ( 39 S.E.2d 882). There are a number of decisions by this court which hold that because of the pleaded facts the rule is not applicable, among the more recent of which are Great Atlantic Pacific Tea Co. v. Columbus, 189 Ga. 458 ( 6 S.E.2d 320); City of Albany v. Lippitt, 191 Ga. 756 ( 13 S.E.2d 807); Braddy v. Macon, 194 Ga. 871 ( 22 S.E.2d 801). Those cases, however, differ on their facts from the present case, and it would serve no useful purpose to point out again the facts there pleaded which took the case from under the rule. In the present case, the petition shows that the plaintiffs alone have been arrested, and if the ordinance under which they are being prosecuted is void, as claimed, its invalidity can be pleaded as an absolute defense in the pending criminal cases. This being true, they have an adequate remedy at law, and equity has no jurisdiction to interfere.
3. A threat to arrest the plaintiffs and their employees for future violations of the alleged unconstitutional ordinance, being a mere apprehension of injury to person or property rights, will not authorize the grant of an injunction. Candler v. Atlanta, 178 Ga. 661 ( 174 S.E. 129); West v. Chastain, 186 Ga. 667 ( 198 S.E. 736); Wallace v. Atlanta, 200 Ga. 749 ( 38 S.E.2d 596); Paulk v. Sycamore, 104 Ga. 24 ( 30 S.E. 417, 41 L.R.A. 772, 69 Am. St. R. 128).
4. "Where a court of equity has not jurisdiction, it will not assume jurisdiction for the purpose of inquiring into the constitutionality of a legislative act or the validity of a municipal ordinance." City of Atlanta v. Universal Film Exchanges, supra.
5. Since the petition stated no cause of action and should have been dismissed on demurrer, all further proceedings in the case were nugatory.
Judgment reversed. All the Justices concur.
No. 16410. NOVEMBER 17, 1948.
Anderson, Johnson, and Woodham, operating a taxicab business under the trade name of Arco Cab, Veterans Cab, and Roy Cab respectively, brought a suit against the City of Brunswick, a municipal corporation. Murphy's Taxi Service, a partnership, and Taxi Service Inc. were later made parties defendant. The petition, as amended, alleges substantially these facts: The City of Brunswick, by ordinance number 214, which was ratified by the voters of the City at a special election on August 19, 1941, and approved by the city commission on August 20, 1941, and which expressly repealed all ordinances in conflict therewith, granted an exclusive franchise or permit, for a fixed period of time to Safety Cab Company Inc., now Taxi Service Inc., and Murphy's Taxi Service, a partnership, to conduct a taxicab business in the City of Brunswick. The ordinance granting such a franchise is illegal and void because it offends stated provisions of the State and Federal Constitutions. Plaintiffs reside in the City of Brunswick, and have a license or permit to carry on a taxicab business in Glynn County outside of the defendant city. Applications made by plaintiffs to the City of Brunswick for a license to engage in a taxicab business within the city under city ordinance No. 193, which was in force and effect at the time of the adoption of ordinance number 214, have been denied and refused, although plaintiffs offered to comply with all of the terms of the previously existing ordinance. Plaintiffs frequently have occasion to transport passengers through the City of Brunswick, and from places without to points within the city and vice versa. Under penal provisions of the city's ordinance number 214, the plaintiffs have been arrested for these acts and charges are now pending against them. The city's chief of police has stated that for a repetition of these acts they will be arrested, tried, and fined. This threat also applies to plaintiffs' taxicab drivers. A court of equity should take jurisdiction, since plaintiffs have no adequate remedy at law. The prayers were: (1) that the city's ordinance in question be declared unconstitutional for reasons stated in the petition; (2) that it be declared and decreed that plaintiffs have a right to carry on a taxicab business in the City of Brunswick upon complying with the city's rules and regulations respecting the same as they existed prior to the enactment of the ordinance in question; (3) that the city and its police officers be enjoined from enforcing any of the provisions of the ordinance by criminal prosecutions or otherwise; (4) that the "rights, liberties, duties, responsibilities, and legal position" of the parties "be declared, deemed, adjudged and decreed;" and (5) for general relief.
The exception here is to a judgment overruling a general demurrer, attacking the petition as amended upon the ground that it stated no cause of action for any of the relief prayed, and overruling certain grounds of special demurrer, and to a judgment holding the ordinance in question unconstitutional and granting a temporary injunction.