Ledford v. Department of Transportation

253 Ga. 717 (1985) 324 S.E.2d 470

LEDFORD et al.
v.
DEPARTMENT OF TRANSPORTATION et al.

41506.

Supreme Court of Georgia.

Decided January 9, 1985. Rehearing Denied January 23, 1985.

Sims & Fleming, John S. Sims, Jr., Alan H. Swan, Powell, Goldstein, Frazer & Murphy, Frank Love, Jr., Jeffrey W. Kelley, for appellants.

David, Pridgen & Jones, John C. Pridgen, Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, for appellees.

MARSHALL, Presiding Justice.

The plaintiffs filed a complaint for declaratory judgment to have declared unconstitutional Rule 672-6-.05 (d), which was promulgated by the defendant and which regulates the maintenance of "nonconforming," outdoor advertising signs. As to "nonconforming" signs, see OCGA § 32-6-71 (12).

The complaint was filed after the plaintiffs had been served with a notice of administrative hearing concerning the enforcement of this rule. The plaintiffs sought to have the superior court enjoin the administrative hearing. However, the complaint was dismissed by the superior court. The plaintiffs appeal. Held: We affirm.

George v. Dept. of Natural Resources, 250 Ga. 491 (299 SE2d 556) (1983), holds that Georgia courts will not enjoin administrative proceedings in progress or grant declaratory relief concerning a constitutional question which could be raised on appeal from the administrative decision. We hold that the administrative hearing came to be "in progress" within the meaning of George v. Dept. of Natural Resources, supra, when the plaintiffs were served with a notice of the hearing. OCGA § 50-13-10 is inapplicable here, as in George, because in their complaint the plaintiffs attack the constitutionality of the statute pursuant to which the DOT rule was promulgated, as well as the rule itself. See OCGA § 32-6-79.

Therefore, the superior court did not err in dismissing the complaint.

Judgment affirmed. Hill, C. J., Marshall, P.J., Clarke, Smith, Weltner, and Bell, JJ., and Judge James E. Findley concur. Gregory, J., disqualified.