Town of Lilburn v. Alford Bros. , 163 Ga. 282 ( 1926 )

Per Curiam.

The court is of the opinion that the qualified injunction granted by the judge in this case was authorized under the pleadings and the facts. The injunction is in the following language: “It is therefore ordered and adjudged by the court; under the evidence in this case, that the restraining order heretofore granted by the court be continued in force so far as to allow plaintiffs to drive upon or go upon said sidewalks for the purpose of loading and unloading trucks and wagons at said side door. When said trucks or wagons are loaded or unloaded of said merchandise, they should be removed, and for failure to remove the same upon notice by the marshal the owners or occupants of said trucks or wagons are subject to be dealt with under said ordinance.” The ordinance for the violation of which a case has been made against the petitioners, and for all future violations of which other cases will be made, reads as follows: “Any person who shall place any obstruction in or upon the streets, alleys, or sidewalks of said town or in or upon any part thereof, and shall fail to remove the same after due notice by the town marshal to do so, shall, upon conviction thereof, be punished as prescribed in Ordinance No. 1 of these by-laws.” This ordinance is clearly susceptible of the construction placed upon it by the trial judge, which is, that the ordinance seems to aim at permanent and not temporary obstruction, such as loading or unloading trucks and wagons, inasmuch as there could be no conviction under the ordinance till after notice by the marshal to remove the same, and failure to comply with the notice. Giving to the ordinance the construction placed upon it by the court below, it does not seem objectionable nor unreasonable. But the municipal authorities, in making the case against the petitioners and in threatening other similar cases, have evidently put upon the ordinance a construction which is not authorized by the language employed by the draftsman of the ordinance, and which, in view of all the facts, would render the ordinance unreasonable and oppressive. And it is against the enforcement of the ordinance as thus interpreted and construed by the municipal authorities that the injunction complained of is granted. We recognize the principle embodied in section 5491 of the Civil Code, that “A court of 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 nor obstruct them;” and that this section applies to quasi-criminal proceedings under municipal ordinances as well as the criminal laws of the State. Pope v. Savannah, 74 Ga. 365. Other cases to the same effect might be cited. But where an ordinance illegal and unreasonable in itself is being enforced by prosecution under the terms thereof, and repeated arrests and prosecutions are threatened which would in effect deprive a man of his property, or destroy or seriously impair the carrying on of his lawful business, a court of equity will interfere to protect property thus threatened or the business thus put in jeopardy. And more especially will a court of equity interfere in a case like this, where prosecutions are instituted and other prosecutions are threatened under an -ordinance which seems reasonable in itself, but which the municipal authorities and the arresting officer under such authorities are giving to it an interpretation and construction not authorized by the language of the ordinance, and are proceeding to enforce the ordinance according to the unauthorized construction’thereof. An ordinance reasonable and lawful under its terms may, by construction and practice in the enforcement thereof, be rendered unreasonable, arbitrary, and oppressive, so as to authorize a court of - equity to restrain the enforcement of the ordinance when given such interpretation. And the court below in granting the application for injunction has gone no further than to prevent the municipal authorities from unwarrantably and illegally and arbitrarily doing those acts which would tend to the unlawful interference with a lawful business; and to this extent the court was authorized to go.

Judgment affirmed.

All the Justices concur, except