Opinion
22909.
ARGUED APRIL 12, 1965.
DECIDED MAY 6, 1965.
Equitable petition. Jackson Superior Court. Before Judge Dunahoo.
John A. Darsey, Davis Davidson, Jack S. Davidson, for plaintiff in error.
Wheeler, Robinson Thompson, B. Carl Buice, contra.
The petition as amended did not state a cause of action for equitable relief.
ARGUED APRIL 12, 1965 — DECIDED MAY 6, 1965.
On December 16, 1964, S. J. Shirley filed a petition for equitable relief against the City of Commerce, a municipal corporation, and its mayor and council. In so far as material here, it was alleged: The petitioner is the owner of described real estate on which he has been operating a diesel-powered feed mill. Pursuant to complaints by adjacent property owners, the mayor and council on June 8, 1964, enacted an ordinance making it unlawful for the petitioner to operate his feed mill in the city limits under conditions therein specified. On November 16, 1964. the defendants served him with charges of violating this ordinance, requiring him to appear in the mayor's court on November 19, 1964. Because of the illness of counsel the hearing was continued until December 23, 1964. The ordinance is an arbitrary and capricious discrimination against the petitioner's lawful business and, for stated reasons, the ordinance violates the Fourteenth Amendment to the Federal Constitution and Art. I, Sec. I, Pars. II and III of the State Constitution ( Code Ann. §§ 2-102 and 2-103). Unless restrained and enjoined, the defendants will subject the petitioner to repeated prosecutions and he will suffer irreparable damage. The prayers were for process; that the ordinance be declared unconstitutional and void; and that the defendants be temporarily restrained and permanently enjoined from interfering with the petitioner's feed mill business.
Rule nisi was issued setting the cause for a hearing on January 15, 1965, and pending the hearing the defendants were enjoined from prosecuting any charges against the petitioner. The defendants filed their general and special demurrers to the petition on December 24, 1964.
The petitioner filed an amendment to his petition, which was allowed subject to objection, and alleged: The charter of the city provides that the mayor and council may abate a nuisance. On February 12, 1964, the city rendered a purported judgment that the petitioner's feed mill was decreed to be a nuisance, and it was ordered abated. (No copy of this judgment is attached to the petition). The petitioner had caused his diesel motor to be muffled, as had been suggested in an informal discussion with the council on February 10, 1964, and since the petitioner heard nothing further from the purported judgment he assumed that the enactment of the ordinance and copy of charges for violation thereof had been abandoned. Notwithstanding the restraining order of the superior court, the petitioner received from the city on December 29, 1964, an order to show cause why he should not be held in contempt by reason of the purported judgment of abatement. The judgment of abatement was entered in violation of stated constitutional provisions. It was prayed that the judgment be decreed null, void, and of no effect; and that the defendants be temporarily restrained and permanently enjoined from any further proceedings in the enforcement of such judgment.
The petitioner excepts to an order disallowing the amendment on objection thereto, and to a judgment sustaining the renewed general demurrers to the petition as amended.
It has long been the general rule that equity will not interfere in the administration of the criminal law. Code § 55-102; Gault v. Wallis, 53 Ga. 675 (4); Phillips v. Mayor c. of Stone Mountain, 61 Ga. 386; Pope v. Mayor c. of Savannah, 74 Ga. 365; Hodges v. State Revenue Commission, 183 Ga. 832 ( 190 S.E. 36); Baker v. City of Atlanta, 211 Ga. 34 ( 83 S.E.2d 682).
However, it has likewise long been recognized that there are exceptions to the general rule that equity will not interfere in criminal prosecutions. City of Atlanta v. Gate City Gas Light Co., 71 Ga. 106. In Moultrie Milk Shed Inc. v. City of Cairo, 206 Ga. 348 (1) ( 57 S.E.2d 199), it is stated: "[E]quity has jurisdiction to protect property rights where employees refuse to serve because of threatened criminal action, and thereby the petitioner's business is destroyed." The same rule was applied by this court in Great Atlantic Pacific Tea Co. v. City of Columbus, 189 Ga. 458 ( 6 S.E.2d 320); and City of Albany v. Lippitt, 191 Ga. 756 ( 13 S.E.2d 807).
The present case does not fall within the exception to the general rule. The petition does not show any interference with the petitioner's business in any form, nor with any of his employees, if any he has. Neither the petition nor the amendment alleges that any effort has been made, or will be made, to enforce the ordinance other than by prosecution in the mayor's court. The validity of the ordinance may be attacked in the mayor's court, and the decision, if adverse to the petitioner, may be reviewed in the manner provided by law. Mayor c. of Savannah v. Granger, 145 Ga. 578 ( 89 S.E. 690); City of Bainbridge v. Olan Mills Inc., 207 Ga. 636 ( 63 S.E.2d 655).
Judgment affirmed. All the Justices concur.