"The general rule is that a court of equity has no jurisdiction to enjoin the institution of prosecutions for criminal offenses; and this rule is applicable to prosecutions for violations of municipal ordinances, which are quasi-criminal proceedings. Nor will a court of equity, upon a petition for an injunction of such a nature, inquire into the validity or reasonableness of an ordinance making penal an act for the doing of which prosecutions are threatened." White v. Tifton, 129 Ga. 582 (59 S.E. 299). The petition in the present case shows no ground for equitable relief. It was error to overrule the general demurrer.
No. 13613. MARCH 19, 1941.
C. E. Miller as lessee, and Healey Real Estate and Improvement Company as owner, brought this action against the City of Atlanta, the members of the Board of Zoning Appeals, and the building inspector of Atlanta, alleging that Miller occupies under a lease from the plaintiff company as the owner a tract of land located in the City of Atlanta, known as 1590 DeKalb Avenue N.E., and fronting on the north side of DeKalb Avenue a distance of 350 feet, and extending back north 390 to 400 feet, all sides being straight except the side fronting DeKalb Avenue, which curves with the avenue; that the tract has had its present form and size for many years; that there has been no building thereon since the removal of a residence about twelve years ago, when the property became unsuited for residential purposes, due to the encroachment of business and its proximity to cotton mills, fertilizer factories, and similar industrial establishments located immediately across the Georgia Railroad, which runs in front of this tract of land; that this property remained vacant until five or six years ago, when Miller leased it for use as a yard for storing lumber and other building materials, and it has been devoted to this use to the present time; that before Miller leased the lot and began using it for storage of lumber and building materials he made inquiry of the building inspector of the City of Atlanta as to whether there was any objection to devoting the premises to such use, and he was advised by the inspector that the city attorney had made a ruling to the effect that, where the zoning ordinance undertakes to divide one lot into two separate uses by zoning the front 100 feet to business use and restricting the rear to residential use, it is unreasonable,
arbitrary, and unconstitutional, but that where the lot is on a corner this ruling might not apply to the depth of the lot along the side street for a reasonable width, and that Miller could use the lot accordingly; that after being so advised Miller began and has continually used the back portion of the lot in strict conformity to the ruling, and has stored no materials within 60 to 75 feet of the street running north from DeKalb Avenue along the east side of said lot; that he has expended large sums of money in storing building materials upon the lot, and it would cost a large sum of money, practically wrecking his business and inflicting losses that can not be computed, for Miller to remove his property from the lot; that on June 16, 1940, the building inspector, acting under instructions from the Board of Zoning Appeals, notified Miller to clean all of his building materials off that part of the lot 100 feet and more from DeKalb Avenue, and that if such removal was not started immediately and completed within thirty days Miller would be served with copy of charges, that is to say, that proceedings of a criminal nature would be instituted against him in the recorder's court to punish him for such failure; that such notice and attempt to require the removal of Miller's property was instituted under color of what is known as the zoning ordinance of the City of Atlanta; that under the zoning ordinance the front part of said lot is zoned in use class U-3, for business purposes, which includes storage in bulk of or warehouses for such materials as building materials, contractor's equipment, etc., while it zones the rear or back part of the same lot in use class U-1, which is residential purposes; that the dividing line which the ordinance undertakes to establish across the lot separating the two uses is mythical and does not exist upon the ground, bears no relation to the size, shape, or utility of the lot, and curves to correspond with the curvature of DeKalb Avenue; that it is arbitrary and unreasonable in that it divides said lot so that the front may be used only for business purposes while the back is restricted to residential purposes.
The petition alleges that the value of the land involved lies in the fact that it is a large tract containing several acres, and can be leased only as a whole to a tenant who desires a large tract; that its value will be greatly diminished, if not destroyed, if zoned to conform with the zoning ordinance; that it is of great value for business purposes like that of Miller, since it is the heart of a city
block, so that materials can be stored well away from the street line; that the rear portion of the lot has little or no value for residential purposes, and restriction to such purposes would practically destroy the value of the tract; that the zoning ordinance by zoning the lot to the purposes above shown is unreasonable, arbitrary, and illegal, in that it is not in accordance with a comprehensive plan, and because such zoning in no wise contributes to the public health, service, safety, and general welfare of the people of Atlanta; that the zoning ordinance, in so far as it divides the lot into two separate uses by zoning the first 100 feet to business purposes and restricting the remainder to residential purposes, violates article 1, section 1, paragraphs 2 and 3, and article 1, section 1, paragraph 1, of the State constitution, and the 14th amendment of the constitution of the United States; that the plaintiffs have no adequate remedy at law; that the damages they will sustain can not be computed, and for these reasons as well as for the purpose of avoiding a multiplicity of suits they are entitled to equitable relief. The prayer is that the defendants be enjoined from interfering in any manner with plaintiff Miller or his business, and from instituting or in any way prosecuting any action in the nature of a criminal proceeding against Miller on account of the business conduct described in the petition; and that the zoning ordinance which in any way interferes with petitioners' right to use the lot of land for business purposes as set out in the petition, and in so far as it seeks to divide said lot into two separate uses, and in so far as it seeks to restrict the use of the lot to residence purposes other than the front 100 feet, be declared arbitrary, unreasonable, unconstitutional and void.
Judgment overruling defendants' general demurrer to the petition was rendered. Their answer denied the material allegations of the petition, but admitted the existence of the zoning ordinance and the division thereunder of the land in question into two use classes. On interlocutory hearing the plaintiffs introduced testimony that in general supported the allegations of the petition, and the defendants introduced testimony supporting their answer and contradicting the plaintiffs' allegations and proof. Judgment was entered, granting an interlocutory injunction as prayed and sustaining all constitutional attacks made upon the ordinance. The
defendants excepted, assigning error on this judgment and on the judgment overruling their general demurrer.
To withstand the general demurrer the petition must contain averments that show injury to petitioners for which they have no adequate remedy at law. In the outset of this inquiry we may put aside all allegations relating to criminal prosecution. Code, § 55-102; Corley v. Atlanta,181 Ga. 381 (182 S.E. 177), and cit.; Spur Distributing Co. v.Americus, 190 Ga. 842 (11 S.E.2d 30); Ray v. Dalton,191 Ga. 46 (11 S.E.2d 193); Beal v. Missouri Pacific R. Cor., U.S. (Sup.Ct. , 85 L. ed. 380). This rule is applicable to prosecutions for violation of municipal ordinances. GeorgiaRailway Electric Co. v. Oakland City, 129 Ga. 576
(59 S.E. 296); White v. Tifton, supra; Powell v. Hartsfield,190 Ga. 839 (11 S.E.2d 33). When these portions of the petition which constitute no ground for equitable jurisdiction are thus carved from the petition, there does not remain a single allegation of past or present injury to either of the petitioners resulting from the zoning ordinance of the City of Atlanta. It is true that the petition asserts, as reasons why it is contended that the ordinance is unconstitutional and void, that if the land involved should be divided and confined to the uses required by the ordinance it would thereby be rendered virtually worthless. However, such allegations do not constitute averments that such injuries have yet been suffered. On the contrary, it is further alleged that the property involved has at all times been and is now devoted to the most profitable use for which it is adaptable. In fact, the very heart of the owner's complaint is that the property can be profitably utilized only as a whole and for commercial purposes; and that if a portion of same is confined to residential uses, as provided by the ordinance, its value will be thereby virtually destroyed. Yet it is further asserted that its greatest value is in its present use by Miller for commercial purposes. No claim is made that the mere existence of the ordinance has caused injury to either of the petitioners or the property involved. No prospective purchaser or lessee is alleged to have been lost because of the existence of the ordinance. In this situation, even if the ordinance
is conceded to be void, neither of petitioners, failing as they do by this petition to show an injury inflicted upon them by the existence of the ordinance, would be entitled to equitable relief because of any anticipated injury therefrom. Howard v.Briarcliff Zoological Corporation, 178 Ga. 595
(173 S.E. 391); Asa G. Candler Inc. v. Atlanta, 178 Ga. 661
(174 S.E. 129). Thus it is apparent that the only injury to either of petitioners which the petition claims entitles them to the relief sought is a possible fine or imprisonment of Miller. It is not asserted or contended that such criminal prosecution would or could in any degree cause injury to either of the petitioners or their property, against which they have no adequate remedy at law. This case is distinctly different from that of GreatAtlantic Pacific Tea Co. v. Columbus, 189 Ga. 458
(6 S.E.2d 320), and City of Albany v. Lippitt, 191 Ga. 756, in neither of which was complaint made because of any fine or sentence that might be imposed as a result of the criminal prosecutions there involved, but rather in each it was asserted that the criminal prosecutions and the threat of continued prosecutions of agents and employees of petitioners would result in destroying the business and property of the petitioners; and it was held by this court that equity should take jurisdiction to protect the business and property against such injury. Nor do the rulings made in the following cases relied upon by defendants in error require a different ruling here: Georgia Railroad Banking Co. v. Atlanta, 118 Ga. 486 (7, 8) (45 S.E. 256);Carey v. Atlanta, 143 Ga. 192 (84 S.E. 456, L.R.A. 1915D, 684, Ann. Cas. 1916E, 1151); Smith v. Atlanta,161 Ga. 769 (2) (132 S.E. 66); Morrow v. Atlanta, 162 Ga. 228
(133 S.E. 345); Commissioners of Glynn County v. Cate,183 Ga. 111 (187 S.E. 636). Smith v. Atlanta, supra, involved an attack upon a zoning ordinance, and to this extent is similar to the present case. Although the opinion in that case makes no reference to the general rule under the Code, § 55-102, and cases decided thereunder, the second headnote is as follows: "Injunction was the remedy available to the petitioner to secure relief as against prosecution threatened in the event she should proceed to erect the buildings without permit." That decision is not controlling on the question here presented. In the first place, the facts are different. There the plaintiff was prevented from devoting her land to the use for which it was adaptable
and for which it would be most profitable, and she together with her employees engaged in the construction of the building were arrested; while here the property involved is devoted to the use for which it is most suited and which will yield the greatest profit. Here neither of the plaintiffs has been arrested, and only one of them has been told that he would be given copies of the charges unless he removed his property within thirty days. In the second place, there can be no logical and rational distinction drawn between the property right there involved and the property right involved in Phillips v. Stone Mountain,61 Ga. 386. The latter, being the older and by a full bench, is controlling. There is nothing peculiarly inherent in a zoning ordinance that gives equity jurisdiction to enjoin prosecutions thereunder. In Morrow v. Atlanta, supra, which involved a zoning ordinance, headnote 4 recognizes the general rule that equity has no jurisdiction to enjoin a criminal or quasi-criminal prosecution, but asserts that there is a well-recognized exception to this rule to the effect that equity will enjoin a prosecution for a violation of a municipal ordinance, which will result in depriving the accused of his right to exercise his business which in and of itself is perfectly lawful. While that case arose on the petition of Morrow to enjoin the city, the judgment excepted to and reviewed by that decision was one restraining Morrow from using his property as a tire-repair shop, operating a motor, repairing old tires, or storing old tires in said place, as prayed in defendant's answer and cross-bill; and this court held that the judgment excepted to was error and reversed the same. That decision is not in conflict with what is here ruled, because it recognizes that to give equity jurisdiction the threatened prosecution must "result in depriving the accused of his right to exercise a business." The same may be said of Georgia Railroad Banking Co. v. Atlanta and Carey
v. Atlanta, supra. In Commissioners of Glynn County v.Cate, supra, the commissioners of roads and revenue of Glynn County sought to prevent Cate by injunction from erecting on his land a building in violation of the Glynn County zoning act, and this court affirmed the judgment denying an injunction.
The demurrer to the present petition should have been sustained. This ruling on the demurrer renders nugatory the subsequent interlocutory hearing and judgment granting a temporary injunction.
Judgment reversed. All the Justices concur, except Atkinson,P. J., who dissents.