Moore v. City of Tifton , 204 Ga. 599 ( 1948 )

Since the evidence failed to show any injury or damage to the person or property rights of the plaintiff, but at most showed only a mere apprehension that the city would in the future undertake to enforce an ordinance, the trial court did not err in denying an interlocutory injunction.

No. 16423. NOVEMBER 17, 1948. REHEARING DENIED NOVEMBER 30, 1948. Mrs. Susie T. Moore brought a petition for injunction against the City of Tifton and the health officer of the City of Tifton, seeking to enjoin the enforcement of an ordinance dealing with the control and spread of endemic typhus fever "and other rat-borne diseases and infections associated with insanitary conditions present wherever rats are found, by requiring that certain structures shall be maintained in a rat-resistive and rat-free condition, by providing for the storage of food and feed and the handling of garbage, by eliminating certain conditions favoring the harborage of rats, and to provide penalties for violation thereof."

Among the provisions of the ordinance were: (a) a requirement that business buildings in the City of Tifton should be of rat-resistive construction, freed of rats, and maintained in a rat-resistive condition and rat-free condition; and (b) a provision that "upon receipt of a written notice or order from the health officer, the owner of any business specified herein shall take immediate measures to make the building rat-resistive, and unless said work has been completed in the time specified in the written notice, in no event to be less than fifteen (15) days, or within the time to which a written extension may have been granted by the health officer, then the owner shall be guilty of a misdemeanor. If the owner fails to comply with written notice or extension, then the health officer is hereby authorized and directed to take such action as may be necessary to make the buildings completely rat-resistive at the expense of the owners, and the health officer shall submit bills for the costs thereof to the owner of the buildings; and if the same are not paid within thirty (30) days, the health officer shall certify the amount due from the owner to the city, and the city shall issue fi. fa. and the expense thereof shall include the actual cost to the city for making the building or causing the building to be made rat-resistive."

The petitioner alleged that she is the owner of sixteen business buildings in the City of Tifton; that "on the 24th day of June, 1948, your petitioner received a registered-mail notice from the said city health officer, who advised your petitioner that he had inspected the property above described, and that the said health officer had organized a work crew and would undertake to rat-proof your petitioner's property for a consideration of $852.42, in accordance to the said rat-proofing ordinance; that, in accordance with the provision of said ordinance unless your petitioner enters into a contract with the said health officer authorizing him to proceed with the alleged rat-proofing of petitioner's property and at the consideration hereinbefore set forth, the said city health officer will proceed to trespass upon your petitioner's property, disturb your petitioner's tenants, and have done whatever carpenter, brick, and cement work as he may deem necessary to be done in order to bring about an alleged rat-proof condition of said premises."

It was alleged that the construction of the petitioner's buildings was such that it would be impossible to rat-proof the buildings, and if the health officer undertook to do so, it would result in irreparable damages; that there was no epidemic of endemic typhus fever or other rat-borne disease in Tifton; that the ordinance is violative of certain provisions of the Constitution of Georgia, and void for other reasons.

The defendants answered, denying the material portions of the petition. The Tift County Board of Health filed an intervention, alleging that the matters embraced in the pleadings were such as seriously affected the health measures in the City of Tifton and Tift County, being measures and matters in which the board is involved; and the intervenor adopted the answer filed by the defendants as part of the intervention. Over objections, this intervention was allowed.

After hearing evidence, the trial court denied an injunction, and to this judgment the plaintiff excepted, also assigning error on the allowance of the intervention. 1. The evidence offered on the interlocutory hearing dealt almost entirely with the nature of typhus fever, whether it is caused by fleas from rats, whether there exists an epidemic of typhus fever in Tifton, and the nature of the work necessary to be performed to rat-proof buildings. With reference to the steps taken to enforce the ordinance in question, the evidence was no stronger than the allegations of the petition with regard to the receipt of a notice from the city health officer, to the effect that the city would rat-proof the petitioner's property for a stipulated amount. The plaintiff testified that "they said they were not going to rat-proof it, but were going to tear . . down" one story building, and unless she contracted with the health department to do the work or did it herself, "they would enter upon the premises, do the work, issue a fi. fa., and levy on my property for the cost of the work." The city health officer testified that, if the injunction was denied, he intended to carry out the provisions of the ordinance. There was no evidence whatever tending to show that any steps had been taken toward entering upon the premises for the purpose of performing work on the property; nor was there any evidence of any attempt to enforce the penal provisions of the ordinance.

Briefly stated, the evidence does not show an interference with the person or property rights of the plaintiff, but at most shows only a mere apprehension that such interference may occur.

The notice from the city, as alleged in the petition, is nothing more than a mere offer to perform work on the plaintiff's property for a stipulated amount.

While it has been held by this court that there exists a distinction between an injunction which is sought primarily for the purpose of enjoining a criminal prosecution, and one sought primarily for the purpose of preventing injury to property or property rights, this court has not gone so far as to hold that, when property or property rights are involved, a petition for injunction is maintainable merely upon an apprehension of injury. In the two principal cases where this court held that property rights were involved and a petition for injunction was maintainable (Great Atlantic and Pacific Tea Co. v. Columbus,189 Ga. 458, 6 S.E.2d 320, and City of Albany v.Lippitt, 191 Ga. 756, 13 S.E.2d 807), overt acts had already been committed which injuriously affected the property or property rights of the petitioner. In other words, there presently existed conditions which were injuring property or property rights. In the first case, the manager of the petitioner's store had been arrested, and there were threats of repeated arrests if the ordinance in question was not complied with. In the latter case, while there had been no arrests made, it was pointed out by this court that the "defendants have threatened to institute criminal prosecutions against any agent or employee of petitioner who attempts to cut and remove the trees which he asserts are on the private property of petitioner; and it is alleged that such threats have prevented him from engaging the services of employees for the purpose of improving his private property." And this court then said: "Thus it clearly appears that he is injured by defendants' threats, and that he has no remedy at law, and consequently is entitled to equitable relief." In neither case did this court hold that the petitioner was entitled to an injunction merely because he apprehended that an ordinance which had been passed might in the future injuriously affect him because he apprehended that the city authorities would undertake to enforce it.

As recently stated in City of Nashville v. Snow, 204 Ga. 371 (49 S.E.2d 808), this case "is based upon a mere apprehension that the defendant city will undertake to enforce its ordinances, and the case therefore falls within the rule that a mere threat of injury to the person or property rights will not authorize an injunction, as was announced by this court inCathcart Van Storage Co. v. Atlanta, 169 Ga. 791 (151 S.E. 489); Southern Oil Stores Inc. v. Atlanta, 177 Ga. 602 (170 S.E. 801); Georgia Public Service Commission v. ParcelDelivery Co., 177 Ga. 600 (170 S.E. 800); National LinenService Corp. v. Milledgeville, 177 Ga. 826 (171 S.E. 568);Howard v. Briarcliff Zoological Corp., 178 Ga. 595 (173 S.E. 391); City of Douglas v. South Georgia Grocery Co.,178 Ga. 657 (174 S.E. 127); Wallace v. Atlanta, 200 Ga. 749 (38 S.E.2d 596); Winchester v. Gainesville, 193 Ga. 33 (17 S.E.2d 66); City of Atlanta v. Universal FilmExchanges, 201 Ga. 463 (39 S.E.2d 882)."

Accordingly, the trial court did not err in denying an interlocutory injunction.

2. The Tift County Board of Health, having supervision over matters relating to health and sanitation in the county, was a party interested in the subject-matter of the litigation; and the trial court did not err in allowing the intervention filed by the board. This is true irrespective of whether a resolution passed by the board, seeking to adopt and ratify the ordinance passed by the city, was void and ineffectual for any of the reasons urged by the plaintiff in error in objecting to the allowance of the intervention.

Judgment affirmed. All the Justice concur.