O'Brien v. Harris , 105 Ga. 732 ( 1898 )

Lewis, J.

This was a suit by individuals to enjoin the violation of a penal statute. The petition, itself does-not! disclose-any particular injury to the property of:’the complainants resulting from such violation. The only allegation-on this point: is that some of the petitioners own real’estate near-the town in which the sale of liquors is being had, and that such.sale injures: and damages their property, interferes'with their business, and’ is hurtful to the best interests of the- chureli.of which they are-trustees. There is no allegation whatever how ;their property • is injured, or that the act complained of affects their rights any more than it does all other persons who-come-within the sphere-of its operation. On the hearing there was an absolute want of ’ any proof tending to show any private injury, or any damage whatever'to the property rights of the-plaintiffs. Manifestly,, then, the object of this petition was not.to redress a private-grievance, but to enjoin the perpetration of an alleged public-wrong. We can not conceive upon what theory equity could" interfere in such a matter, except upon the idea of restraining-the commission of acts -which amount to a nuisance; but if the facts alleged in the petition constitute a nuisance, it is of a pub-lie and not of a private nature, for it is not limited in its injurious effect to one or a few individuals. In such a case no right of action lies to any individual, but if any exist, it should be instituted in the name of the State, upon information filed by the solicitor-general' of the circuit. Civil Code, §§3858, 4761. The doctrine is too well established to require any lengthy discussion, that equity never interferes at the instance-of the individual citizen or person in matters merely criminal,, or merely immoral, which do not affect any right to property.. It is true a court of equity, under some circumstances,, will, at ■the instance of an individual, restrain an act which amounts to ,.a violation of a criminal law, but the act itself must be of some peculiar injury to the property rights of the party complaining, and the court interferes, not on account of the public wrong, but on account of the private injury. When, therefore, a case is presented by individuals for the sole purpose of restraining or preventing Crime, equity is absolutely without any jurisdiction whatever over the subject-matter of the complaint. See this subject fully discussed in the following works, and citations therein contained: Kerr, Inj. * 5; 1 High, Inj. §20; 10 Am. & Eng. Enc. of Law, 914. See also Paulk v. Mayor and Council of Sycamore, 104 Ga. 24.

Where the court has no jurisdiction over the subject-matter •of a suit, parties can not confer jurisdiction by agreement. Although this question was not argued by counsel for either side before this court, and we presume it was waived for the purpose of obtaining a final adjudication as to the right of the plaintiff in error to sell liquors, yet we can not, even upon such consent and waiver, sustain the judgment of the court granting an injunction when no jurisdiction has been conferred upon it by law. The judgment in such a case is void, and no consent or waiver of the parties litigant can make it a legal judgment of a ■court of law or equity.

Judgment reversed.

'All the Justices concurring, except Lumpkin, P. J., absent.