Ballard v. Mayor C. of Carrollton , 194 Ga. 489 ( 1942 )

1. The writ of certiorari ordinarily furnishes a full and adequate remedy at law for the correction of errors in decisions by municipal corporations, courts or councils, rendered in the exercise of judicial powers; so that even though a property right may be primarily involved in such manner as would authorize the injured party to resort to equity, he is not entitled to claim such relief, where he has already appeared before the municipal judicatory, and that body has rendered an adverse decision. His remedy under such circumstances was to have corrected by certiorari any error in the decision. City of Cedartown v. Pickett, 193 Ga. 840, 842 (20 S.E.2d 263), and cit.; Code, §§ 19-101, 19-203.

2. The instant petition to enjoin a mayor and city council and chief of police from enforcing an order suspending a city license to operate taxi cabs, from prosecuting the petitioner for doing business without a license after such suspension, and from interfering with his business, alleges that the city officials passed the order of suspension after a hearing on a petition to them by the chief of police, on the ground that one of petitioner's drivers had illegally carried liquor in a taxicab; but that neither petitioner nor the driver was guilty of such an act; and that petitioner was not legally served with said petition or any order to show cause thereon, "was not present at the hearing," and was not "in the city . . at the time." The petition now attacks the ordinance under which the license was revoked, as void, because it fails to provide any method of service of notice as to a hearing to revoke such a license, no procedure therefor, and no method of defense. However, the order suspending the license, copy of which is attached to the petition, recites that the petitioner appeared and was "represented" at the hearing, and that the order was passed after a hearing at which evidence was submitted, not only on behalf of the city, but for the present petitioner. The averments of the petition being entirely consistent with the recital in the attached order, and there being no other allegation to negative the recital in the order that he participated in the hearing, even though he may not have been personally present, the general rule must be given application. The court did not err in dismissing the action on general demurrer.

Judgment affirmed. All the Justicesconcur.

No. 14242. SEPTEMBER 18, 1942. Reese Ballard filed against the Mayor and City Council of Carrollton and the chief of police a petition to enjoin them from enforcing an order suspending his city license to operate taxicabs, from making cases against him or his employees for operating taxicabs in the city, and from interfering with his taxicab business. The essential allegations are: that on November 12, 1941, the city issued him a business license to operate four taxicabs, which license expires on September 30, 1942, and for which he paid the city $100; that the license was issued under a purported ordinance passed on October 20, 1941, which included a provision that if "any person . . shall be guilty of the violation of any State law or any municipal law, either as principal or as an accessory, then and in that event said permit shall be immediately revoked by the Mayor and City Council of the City of Carrollton;" that on April 15, 1942, on a petition by the chief of police, alleging that Roy Hendrix, a driver and employee of petitioner, was, on April 12, 1942, "apprehended by the police of the city . . hauling a one-gallon jug half filled with corn whisky," the mayor and council issued an order that petitioner, the owner, show cause before the mayor and council, on April 29, 1942, "why his license to operate a taxi . . should not be revoked," and that he be served by the city police with a copy of the petition and order five days before the hearing; that on May 6, 1942, the mayor and council passed an order reciting that "after due notice to Reese Ballard . . [he] appearing, he being represented, and after hearing evidence on behalf of the city on the above petition to revoke the license of Reese Ballard, Ballard Taxi, and the evidence of Reese Ballard, . . it is ordered that the license of Reese Ballard . . be and [is] hereby suspended for a period of thirty days from this date; said Ballard Taxi being found guilty of hauling non-taxable liquor within said city. Further ordered that [the] chief of police . . notify Ballard Taxi, Reese Ballard, at his office, of the order, and instruct him not to operate in said city thirty days from this date."

The petition alleged that Ballard "was never legally served" with said petition to the mayor and council and its order, and "was not present at the hearing before" that body; that he was not "in the city . . at the time said purported trial was held;" that "he never received any legal notice that his license had been suspended until he was arrested under the charge of doing business without a license;" that on May 9, 1942, the chief of police made a case against him for "doing business without a license, and he was placed under bond to appear before the mayor and council;" that he demanded a trial on this charge, but the case was continued, and the mayor and council notified him that "they would make a case against him every time he operated either of [his] cars as taxis in the City of Carrollton." He further alleged, that the revocation of his license was based on the charge that one of his drivers had hauled whisky in a taxicab; that this was without his knowledge or consent and against his instructions given to all drivers; that under the true facts the driver was stopped by a man who hired the driver to carry him as a passenger to town; that this passenger had a paper sack in his lap, but the driver did not know its contents, and had no way of telling without taking the package and examining it, which he had not right to do; and that the driver never knew there was whisky in the package until city police stopped the taxi, opened the package, and found the liquor; and that under these facts neither petitioner nor the driver "was guilty of any violation of any State or municipal law." The petition attacks the ordinance under which the license was suspended, as void, because it provides no means of notice or proper procedure for a hearing as to a violation.

As to any injury to property or a property interest, the petition set forth that petitioner had bought three of his automobiles on credit, and was paying for them from money earned in operating taxis; that he was engaged in carrying passengers to and from work at Mandeville Mills and Lawler Mills; that he had invested a considerable amount of money in his automobiles in order to carry on said business; that, "after said cars have been used for several months in the taxi business, [he] would be unable to sell said cars or receive anything like [their] real value, and [he] would be unable to get up the instalments on said cars unless he is able to operate [them] as taxis; and unless he is [so] permitted, . . the finance company [which] holds said contract will foreclose on said cars and sell same at a sacrifice, and your petitioner will be injured and damaged in large sums;" and that a thirty-day suspension of plaintiff's business will "ruin [it], causing him to lose his passengers, and he will be irreparably injured and damaged."

The defendants demurred generally to the petition, on the grounds that "there is no equity in the bill;" and that the "plaintiff has a complete, full, and adequate remedy at law." The plaintiff excepted to the dismissal of the action on this demurrer.