City Council v. Loftis , 1923 Ga. LEXIS 206 ( 1923 )

Hines, J.

(After stating the foregoing facts.)

The defendants insist that the plaintiff had a complete and adequate remedy at law. The ordinance of the City of Augusta makes the plumbing inspector “ the judge of the quality of the material and workmanship ” employed in the erection of buildings in that municipality. This ordinance further provides that should •any difference of opinion arise between the inspector and a builder, an “appeal must be made at once, in writing, to the Board of Health, stating full particulars of disputed points clearly, and ■copy of same furnished the Inspector of Plumbing in six hours; otherwise his judgment will govern.” Under this provision of this ordinance, the defendants assert that a complete and adequate remedy at law by appeal is furnished the builder to review and reverse any judgment of the inspector in passing upon his material •and workmanship. They further contend that the builder could ■correct by certiorari any adverse ruling to him in these matters, under the general law providing for that method of reviewing the judgments of inferior judicatories. Civil Code (1910), § 5183. They further contend that the plaintiff resorted to the remedy of appeal from the inspector to this board, and that he is concluded by the judgment rendered against him by this board. The soundness of this contention depends upon whether the action of the .inspector, and of the board of health on appeal from his judgment in these matters, is ministerial, or judicial or quasi-judicial in character. The determination of what is a ministerial or administrative duty and what is a judicial function is often a matter of extreme difficulty. The fact that the inspector is made the .judge of the material and workmanship in a building, and the fact that provision is made for appeal from his decision to the board of health, do not of themselves constitute the acts of either judicial functions. The character of these acts, rather than the names given to them, determines whether they are administrative orders, or judicial or quasi-judicial decisions. To make a proceeding judicial there must be provision for trial, including notice and an opportunity to be heard, the introduction of evidence, and right of argument. The ordinance in question does not provide for any hearing before the inspector, or the board of health. No machinery for trial is provided. The action of both the inspector and the board is essentially ex parte. The rulings of the inspector in these matters are administrative orders. The appeal provided for is one from such orders, and not from judgments proper. It follows that the board of health does not review, in passing upon these rulings of the inspector, the judgments of any judicial tribunal. The board of health is not an appellate judicial tribunal. In reviewing the acts of the inspector, this board acts only in an administrative or ministerial capacity. The party aggrieved by a ruling of the inspector would have to resort to this ministerial remedy before he would have a standing in a court of equity; but such resort to this remedy is not one to a judicial tribunal by whose judgment he will be bound. For a full discussion of what •constitutes judicial or quasi-judicial action, see City of Atlanta, v. Blackman Health Resort, 153 Ga. 499 (113 S. E. 545). As to what constitutes ministerial or administrative rulings, see a full discussion in Daniels v. Commissioners of Pilotage, 147 Ga. 295 (93 S. E. 887). So we reach the conclusion that the board of health, in acting upon an appeal from a ruling of the plumbing inspector under this ordinance, does not act as a judicial tribunal, and that its action on such an appeal is not a judicial or quasi-judicial judgment by which the appellant is concluded.

The defendants further contend that the trial judge erred in granting a temporary injunction, because the plumbing inspector was acting within the scope of his duties, and was exercising a discretionary power lodged in him by this ordinance, with which the court should not interfere, unless fraud or corruption was shown, or unless the power or discretion of the officer was being manifestly abused to the oppression of the plaintiff. We concede that public officials, when anting within the scope of their ■duties and in the exercise of discretionary powers, should not be interfered with by the courts, unless fraud or corruption is shown or their power or discretion is manifestly abused to the injury and oppression of the citizens. Hudspeth v. Hall, 113 Ga. 4, 7 (38 S. E. 358, 84 Am. St. R. 200). Was the inspector acting within the scope of his duties and in the discharge of a discretionary power when he refused to permit the plaintiff to install “ P ” traps in this building, and required him to install drum traps? The answer depends upon the proper construction of the ordinance under which he was acting.. This ordinance makes this inspector “ the judge of the quality of the material and workmanship ” employed in buildings erected in Augusta, and likewise empowers him to construe the meaning of the plumbing ordinances of that city. Making the inspector judge of the quality of the material to be used in buildings in Augusta does not confer on him the power to prescribe the kind of material to be so used. If the material which the owner proposes to use is reasonably suited to secure the safety, welfare, and health of the community, the inspector can not, under this ordinance, reject such material and require the owner to use other material, though the latter may be better than that proposed to be used by the owner. In the absence of a valid statute or ordinance, the inspector could not require the owner to use brick instead of wood, granite instead of brick, or marble instead of granite, if the. material of the owner’s choice is reasonably suited for the building proposed to be erected. So if “ P ” traps are reasonably suited to drain the bath tubs of a hotel and to secure the safety, comfort, and health of the guests thereof and of the public, the building inspector could not reject such traps and require the builder or contractor to put in drum traps, although in his opinion the latter was the best type. To confer upon such officer the right to select the material of the building would unreasonably and arbitrarily invade the rights of the owner, and render the ordinance conferring, such power unreasonable and void. As municipal ordinances, founded on general powers in a city charter, must be reasonable, to be valid and enforceable (Toney v. Macon, 119 Ga. 83, 46 S. E. 80; Mayor &c. of Savannah v. Cooper, 131 Ga. 670, 63 S. E. 138; Atlantic Postal Tel. Co. v. Savannah, 133 Ga. 66, 65 S. E. 184; Mayor &c. of Shellman v. Saxon, 134 Ga. 29, 67 S. E. 438, 27 L. R. A. (N. S.) 452), the courts will so. construe them as to make them reasonable when this can be done. Putting the above construction on this ordinance makes it reasonable and valid. The plaintiff, however, does not attack this ordinance as void for unreasonableness. He attacks the inspector’s administration of it as unreasonable. An ordinance may be unreasonably administered to the injury of another, in which case its administration becomes void. Loeb v. Jennings, 133 Ga. 796 (67 S. E. 101, 18 Ann. Cas. 376). The courts will enjoin the unreasonable and arbitrary administration of a reasonable and valid ordinance.

In the instant case the plumbing inspector admitted that “ P ” traps for draining bath tubs, when properly installed, 'were as good as drum traps. In view of this fact his action in rejecting the use in this hotel of “ P ” traps was an unreasonable and arbitrary administration of the ordinances under which be was acting. But it is insisted that these “ P ” traps were being improperly installed in this building; and that the plumbing inspector, for this reason, could rightfully reject their use. It is sufficient to say that the inspector could not reject a proper appliance because it was being improperly installed. He could have prohibited improper installation, but this power would not give him the right to reject proper appliances. Furthermore, his decision on this question, if arbitrary and unreasonable, would not bind the owner. There was evidence authorizing the court to find that these “ P ” traps were being properly installed. If so, the owner of this building or the contractor could not be deprived of his property right to have these appliances used, if they were proper appliances and were being properly installed. It becomes at last a question for decision by the courts whether the inspector’s administration of this ordinance was arbitrary and unreasonable; and judicial inquiry into ths matter can not be precluded by any decision made by the inspector.

Hnder the pleadings and the evidence, the trial judge did not 'err in granting a temporary injunction in this matter.

Judgment affirmed.

All the Justices concur.