Cantrell v. MAYOR &C. OF MT. AIRY , 218 Ga. 646 ( 1963 )

Mobley, Justice.

(a) “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; Gault v. Wallis, 53 Ga. 675 (4); Phillips v. Mayor &c. of Stone Mountain, 61 Ga. 386; Garrison v. City of Atlanta, 68 Ga. 64; Pope v. Mayor &c. of Savannah, 74 Ga. 365; Landers v. Georgia Public Service Commission, 217 Ga. 804, 813 (125 SE2d 495). The rule stated in Code § 55-102 really admits of no exception. Jewel Tea Co. v. City Council of Augusta, 183 Ga. 817, 818 (190 SE 1); City of Atlanta v. Universal Film Exchanges, 201 Ga. 463, 470 (39 SE2d 882). So-called “exceptions” to the rule are those cases in which equity takes jurisdiction for the purpose of preventing irreparable injury to property or property rights, the petitioner having no remedy at law which would provide adequate protection therefor. Those cases will not be viewed as exceptions when one realizes that equity takes jurisdiction in them not because of the criminal feature of the case, but despite it, acting not for the purpose of administering the criminal law but for the purpose of preventing irreparable injury to property or property rights, ignoring the fact that one result of its assumption of jurisdiction may be to oust the jurisdiction of a criminal court. Jewell Tea Co. v. City Council of Augusta, 183 Ga. 817, 818, supra. For full-bench decisions of this court in which equity has been held to have jurisdiction To prevent irreparable injury to property or property rights, the petitioner having no adequate remedy at law, see: City of Atlanta v. Gate City Gas Light Co., 71 Ga. 106, 107 (5); Cutsinger v. City of Atlanta, 142 Ga. 555, 556 (4, 5) (83 SE 263, LRA 1915B 1907, AC 1916C 280); Baldwin v. City of Atlanta, 147 Ga. 28 (1, 2) (92 SE 630); Brown v. City of Thomasville, 156 Ga. 260 (1) (118 SE 854); Great A. & P. Tea Co. v. City of Columbus, 189 Ga. 458 (1) (6 SE2d 320); Braddy v. City of Macon, 194 Ga. 871 (1) (22 SE2d 801); New Mission Baptist Church v. City of Atlanta, 200 Ga. 518, 519 (3) (37 SE2d 377); Moultrie Milk Shed, Inc. v. City of Cairo, 206 Ga. 348 (1) (57 SE2d 199).

The only right alleged by the plaintiff in this case is his right as a municipal police officer of the City of Cornelia, Georgia, and as a citizen of this State, to pursue a person into the Town of Mount Airy, Georgia, and there arrest him for violations of ordinances of the City of Cornelia and statutes of the State of Georgia. Whatever may be the scope and nature of his right to do so, that right is not a property right in the sense necessary to give equity jurisdiction in this case. See as to the right of a municipal officer to arrest: Reed v. State, 195 Ga. 842, 843 (4) (25 SE2d 692); Earl v. State, 124 Ga. 28, 29 (2) (52 SE 78); Shirley v. City of College Park, 102 Ga. App. 10 (2) (115 SE2d 469). See as to the failure to allege a property right: Hunter v. City of Atlanta, 212 Ga. 179 (1) (91 SE2d 338). While in City of Atlanta v. Gate City Gas Light Co., 71 Ga. 106, 107 (5), supra, equity ignored the criminal feature of the case and took jurisdiction to prevent irreparable injury to what the court called “civil rights,” a reading of that case reveals that the civil rights there under consideration were rights to the enjoyment of property.

(b) Further, plaintiff is not without an adequate remedy at law. Should he be convicted by the Police Court of Mount Airy, and should the Mayor & Council of Mount Airy affirm that conviction, he may apply for a writ of certiorari to the Superior Court of Habersham County. Phillips v. Mayor &c. of Stone Mountain, 61 Ga. 386, 388, supra; Mayor &c. of Shellman v. Saxon, 134 Ga. 29 (3a) (67 SE 438, 27 LRA (NS) 452). The trial court did not err in sustaining the defendants’ demurrer and dismissing plaintiff’s petition.

The judgment excepted to in the main bill of exceptions being affirmed leaving nothing to be tried below, the cross-bill of exceptions is hereby dismissed. Code Ann. § 6-901.

Judgment on the main bill of exceptions affirmed; cross-bill dismissed.

All the Justices concur, except Duckworth, C. J., and Candler, J., who dissent.