City of Cedartown v. Pickett , 193 Ga. 840 ( 1942 )

An issue of invalidity (as violative of the constitution of the State) of a municipal ordinance declaring unlawful as a nuisance the operation of the business of storing and dismantling second-hand, worn-out, junked automobiles at specified locations including that of the plaintiff, not having been raised on trial of the plaintiff before the city commission and by certiorari on the commission's order of abatement, an injunctive order by the superior court was error.

No. 14054. APRIL 15, 1942. REHEARING DENIED MAY 18, 1942. The owner of a lot in Cedartown brought this suit to enjoin enforcement by the city of an order by the city commission to abate his junk business as a nuisance. It was alleged, that petitioner was operating on his lot a legitimate business for "storing and dismantling second-hand, worn-out, junked automobiles;" had built a board fence about six feet high, painted white, around his lot, and had a small building thereon about twenty by thirty feet, where the automobile parts were stored; that previously the city commission had enacted an ordinance providing that the operation or maintenance of a business such as petitioner was operating, at specified locations in the city, including the location of his lot, "is hereby declared to be a nuisance," and "shall be abated and removed" in accordance with stated sections of the city code; that the city commission issued an order to show cause against petitioner, and a hearing was had before that body, after the filing of an affidavit by complaining citizens that petitioner was maintaining a nuisance, in violation of the ordinance defining such a business as a nuisance, by operating his lot and business of storing "dilapidated, burned, and junked automobiles . . within 300 feet of dwelling-houses;" that petitioner "appeared at said hearing and moved to dismiss the proceeding, on the grounds that the same violated both the constitution of the State . . and of the United States, in that the same was an unreasonable and arbitrary attempted exercise of the police power, and deprived plaintiff of his property without due process of law;" that such an ordinance "determining what a nuisance was in advance of hearing was invalid, . . except in . . cases . . where the facts showed a nuisance per se or by common law or by statute duly passed;" that this motion was overruled; and that "after hearing certain evidence that near-by inhabitants could see junked automobiles on said lot, and that the same was unsightly to the esthetic sense of the beholders, and that property values in the area would be depreciated for residential purposes", the city commission passed an order that, "after hearing evidence from both sides and argument, they found under [said] ordinance [declaring a lot and business such as described a nuisance] the thing complained of to be a nuisance," and ordered the same to be abated and removed within 30 days. This was the order the enforcement of which it was sought to enjoin.

The petition also elaborated the constitutional attack upon the ordinance, on the specific grounds, that it violates art. 14, sec. 1, of the Federal constitution (Code, § 1-815), and art. 1, sec. 1, par. 3, of the State constitution (§ 2-103), in that it "deprives him of his property without due process of law," and "fails to give him the equal protection of the law", that it is "arbitrary and capricious," and that "it is an attempt to exercise judicial power in determining what a nuisance is, and in declaring that the particular place or places are nuisances without a judicial hearing, and an attempted summary suppression of a lawful business."

The petition attacked the order passed at the hearing, "declaring the thing complained of to be a nuisance," as "null, void, and of no effect, . . in that it does not find upon the evidence submitted or upon an investigation of the facts that the thing complained of is a nuisance, but simply finds that under the ordinance . . the same was a nuisance, and said ordinance was adopted without notice to plaintiff and without an opportunity to him to be heard on the question of whether his business is in fact a nuisance". It was alleged that "these proceedings are on their face null and void, and that the tribunal had no jurisdiction or authority to hand down the order, and the city . . had no authority to enact the ordinance complained of".

The city demurred to the petition, on the grounds, that the petition failed to state a cause of action, or to show that plaintiff was entitled to any equitable relief; that he had a full, complete, and adequate remedy at law; and that the petition failed to show that the plaintiff at the hearing before the city commission properly pointed out what particular clauses of the State and Federal constitutions had been violated by the ordinance and the proceeding.

At interlocutory hearing the judge overruled the demurrer of the city. The only evidence submitted was the pleadings and a certified copy of the city code sections relating to procedure for the abatement of nuisances. In its answer the city alleged that there was evidence at the hearing before the city commission that the junked automobiles were unsightly, that there were loud and objectionable noises on the lot, that it was a breeding place for mosquitos and created an unsanitary condition, and that its use for the purpose complained of "affected the happiness and prosperity" of residents within 300 feet of the lot. The city excepted to the orders overruling its demurrer and granting an injunction. 1. Although certiorari is not an appropriate remedy to review or obtain relief from the judgment, decision, or action of an inferior judicatory or body rendered in the exercise of legislative, executive, or ministerial functions, such a writ does lie for the correction of errors in decisions by municipal corporations, courts or councils, like other inferior judicatories, when rendered in the exercise of their judicial powers. Bryant v. Board of Education, 156 Ga. 688 (1, a) (119 S.E. 601); Carr v. Augusta, 124 Ga. 116 (2), 121 (52 S.E. 300), and cit.; Code, §§ 19-101, 19-203.

(a) The decision by the governing body of a municipality as to whether alleged acts constitute a nuisance in violation of a city ordinance, and whether they should be abated as provided by other city ordinances, made after a trial in which the parties at interest participated, was a judicial determination from which certiorari would lie, and not, as contended, an exercise of mere legislative, executive, or ministerial functions.

2. Whatever might be the proper limitation and scope of the recognized rule that the writ of certiorari will not lie to set aside a verdict or judgment which is not merely erroneous but absolutely void (see, in this connection, McDonald v. FarmersSupply Co., 143 Ga. 552, 555, 85 S.E. 861, and cit; AlliedMortgage Cos. v. Gilbert, 189 Ga. 756 (2), 758,8 S.E.2d 45) a judgment rendered by a municipal judicatory, wherein the ordinance involved in the proceeding has been attacked as unconstitutional and void, and the defendant has had his day in court in that proceeding, is not itself void, even though it might be erroneous with respect to the decision made as to the validity of the ordinance. Forbes v. Savannah, 160 Ga. 701 (4) (128 S.E. 806); Brown v. Valdosta, 48 Ga. App. 125 (172 S.E. 72). The unanimous ruling in paragraph 4 of theForbes decision was not overruled in Maner v. Dykes,183 Ga. 118 (2) (187 S.E. 699), which dealt only with paragraph 2 of the Forbes case.

3. Even where a case involves directly and primarily a property right, and even though equity may afford to the person so injured a more adequate and complete remedy than he would have under the procedure at law (Great Atlantic Pacific Tea Co. v.Columbus, 189 Ga. 458, 464 (6 S.E.2d 320); City ofAlbany v. Lippitt, 191 Ga. 756, 760 (13 S.E.2d 807)), yet where he, as the defendant in a proceeding before a municipal judicatory, has elected to maintain his rights under that proceeding and has thus had his day in court (contrary to the facts in City of Acworth v. Western Atlantic R. Co.,159 Ga. 610 (5), 126 S.E. 454, and Southeastern Greyhound LinesInc. v. Atlanta, 177 Ga. 181, 170 S.E. 43), he can not ordinarily thereafter be heard, on a petition in equity, to question the constitutionality of the ordinance involved in the decision; but his remedy was to have made his defense before the municipal judicatory, and to have corrected by certiorari any error in its decision. Washington Seminary Inc. v. Bass,192 Ga. 808 (16 S.E.2d 565); Calhoun v. Gulf OilCorporation, 189 Ga. 414, 418 (3) (5 S.E.2d 902);Stephens v. Ellijay, 171 Ga. 612, 615, 616 (156 S.E. 253);Jones v. Johnson Ledbetter Co., 185 Ga. 323 (6), 325 (194 S.E. 902); Mayor c. ofMontezuma v. Minor, 70 Ga. 191 (2), 193.

4. Under the preceding rulings, the court erred in overruling the general demurrer of the city to the petition for an injunction against its enforcement of an order by the city commission that petitioner abate his junk business as a nuisance, and in granting an interlocutory injunction. This is true for the reason that it appears from the petition that he had had his day in court, and his remedy was to raise the constitutional questions in the trial in which he participated before the city commission, and to review by certiorari any alleged error of that tribunal.

Judgment reversed. All the Justices concur.