New Mission Baptist Church v. City of Atlanta

1. In this suit, brought in the name of New Mission Baptist Church, an unincorporated association, and a named person as chairman of its board of deacons, who also appeared to be a member of the church, against the City of Atlanta and a named person as inspector of buildings, it was alleged, among other things, that the defendants did, on April 10, 1944, issue a permit to such church to make additions to the building used by it for church purposes at a designated location in the City of Atlanta, but that said inspector of buildings had later written a letter, on July 19, 1944, addressed to such individual plaintiff as chairman of the board of deacons, declaring such permit void and purporting to revoke the same, and stating that he would make cases against some one in charge of the church every time service was held therein. In this petition the plaintiffs prayed, among other things, for a decree that the permit issued on April 10, 1944, is still of force, for an injunction to restrain the defendants from making cases against the officers and pastor, as for an alleged violation of a zoning ordinance of the City of Atlanta purporting to prohibit the location of a church in a zoned residential district without a special permit, and from carrying out the threat contained in the above mentioned letter, and prayed for general relief. Held, that the permit of April 10, 1944, was apparently valid, and the attempted revocation of it, in the letter of July 19, 1944, was void.

2. Under the allegations of the petition, there would be no violation of the zoning ordinance in establishing the church in such residential district, an apparently valid permit having been issued, and being still of force.

3. The case as made by the petition did not come within the rule that equity will not enjoin a criminal prosecution.

4. Nor was the petition subject to objection because the plaintiffs did not first appeal to the board of zoning appeals, complaining of the void act of the building inspector attempting to revoke the former permit.

5. The petition stated a cause of action for injunctive relief in behalf of the individual plaintiff as a member of the church, and it was error to sustain the general demurrer of the defendants.

No. 15271. FEBRUARY 21, 1946. REHEARING DENIED MARCH 5, 18, 1946. On July 27, 1944, "New Mission Baptist Church, a voluntary association not incorporated, and Joseph Reese, as chairman of its board of deacons," filed a suit in the Superior Court of Fulton County against the City of Atlanta and C. J. Bowen, inspector of buildings of said city, praying for an injunction and other relief. The petition was later amended. Thereafter the court sustained a general demurrer of the defendants, and dismissed the petition as amended. To this judgment the plaintiffs excepted.

The petition as amended, together with the exhibits, made substantially the following case: New Mission Baptist Church on or about June 23, 1943, had as its pastor T. R. Reid, but the present pastor is S.E. Beeman. Said former pastor, on behalf of the church, applied to the City of Atlanta for a building permit for said church, which was refused.

After being refused a permit, the church continued to conduct religious services at 375 Orange Street in the City of Atlanta, and its then pastor, T. R. Reid, was prosecuted and convicted in the recorder's court of the City of Atlanta for conducting religious services without first obtaining a permit as required by zoning ordinances. Said conviction was carried by certiorari to the superior court, where the judgment of conviction was reversed. A copy of the petition for certiorari, with the judgment of reversal based thereon, was attached as an exhibit to the petition in the superior court for equitable relief.

After such reversal, to wit, on April 10, 1944, the defendants, by said inspector of buildings, issued to said New Mission Baptist Church a permit to make additions to the frame church building at 375 Orange Street, a copy of such permit being also attached to the petition as an exhibit. New Mission Baptist Church paid the City of Atlanta the sum of one dollar for said permit.

Under and pursuant to said building permit to make additions to said church, the said church has purchased material and employed labor, relying upon the good faith and authority of the City of Atlanta, its building inspector, and said permit, and has expended large sums of money for such material and labor; and in further reliance upon said building permit, said church has continued to pay monthly notes on the real estate owned by said church at 375 Orange Street.

Notwithstanding the former judgment of the superior court that the defendants have no right or authority to interfere with the petitioners' location of a church at 375 Orange Street in the City of Atlanta, the defendants have notified the petitioners that said building permit issued April 10, 1944, was revoked, and that cases would be made against said church in the recorder's court of the City of Atlanta. This notice was in the form of a letter from the inspector of buildings, as follows:

"Atlanta, Georgia, July 19, 1944.

"Joseph Reese, Chairman Board of Deacons, New Mission Baptist Church, 375 Orange Street, Atlanta, Georgia.

"Dear Sir: Some time ago your former pastor, T. R. Reid, appealed to the Board of Zoning Appeals asking permission to locate a church at the above stated place. The Board of Zoning Appeals rejected the appeal, and I served your pastor, T. R. Reid, with a summons to appear before the recorder.

"The recorder placed a small fine, understanding that it was going up to the superior court. Col. Ezra E. Phillips certioraried to the superior court, and the judge sustained the certiorari; however, I am advised by the assistant attorney for the city, that notwithstanding the sustaining of the certiorari, I should make cases against some one in charge of the church every time you hold a service in the church; he also advised that the permit that was issued to S.E. Beeman was issued illegally, and under this ruling, I declare the permit void, the same being revoked.

"Hoping that you will take due consideration of this letter and govern yourself accordingly. [Signed] C. J. Bowen, Inspector of Buildings."

The petition further alleged that the defendants were estopped from making cases against said church, its officers and pastor, because of the judgment on certiorari reversing the conviction of the former pastor, and also because of the issuance of the building permit of April 10, 1944, on the strength of which said church purchased material and employed labor, and expended large sums of money.

It was further alleged that, unless the defendants are restrained and enjoined, they will continue to make cases in the recorder's court against said church, its pastor or officers, and this will entail much expense to the church for defending such actions, and a repetition of this course of conduct will deprive said church of its property in violation of the due-process clause of the Federal Constitution, in that it will result in destroying the use of said property for church purposes, drive the membership away, and make it impossible for said church to obtain the services of a pastor, for fear of being prosecuted and imprisoned for alleged violation of the zoning ordinance of the city.

Referring further to the letter of July 19, 1944, as quoted above, the petitioners alleged that "the revocation of said building permit is of no legal force or effect, because the same was in violation of petitioners' rights to be heard before the revocation of said permit, and because petitioners had acted in reliance upon said permit in purchasing materials and in employing help, and in expending funds for said church property, and in improvement thereof, and the revocation of said permit was illegal, null and void for the further reason that defendants had no legal authority to revoke said permit."

The petition contained, among others, the following prayers: That the defendants, their officers and agents, be enjoined from further interfering with the conduct of religious services in the said New Mission Baptist Church at the designated location, and from interfering with the improvement of said church except to determine that said improvement is made in accordance with standards of the building code in so far as safety, sanitation, and health are concerned; that the court decree that said building permit of April 10, 1944, is still of force; that the defendants be enjoined from further making cases against said church, its officers and pastor, for alleged violation of said zoning ordinance, and from carrying out their threats contained in the notice; and for general relief.

In the petition for certiorari by the former pastor, T. R. Reid, a copy of which, as stated, was attached as an exhibit to the suit in equity, appeared a stipulation wherein it was agreed, among other things, as follows: 375 Orange Street, Atlanta, is a location where the defendant, T. R. Reid, has been holding church services as pastor of New Mission Baptist Church; that the church owns the property in this location, which it purchased for church purposes, and that said church holds regular Sunday morning Sunday school, preaching services Sunday morning and night, and prayer meeting each Wednesday night; that this location is within what is known as a residential section of the City of Atlanta, restricted to residential use under a designated zoning ordinance; "that the residents of the block in which services have been held and where the church is to be built are entirely negroes; that there is not in this general area any excess of churches; that the defendant was denied his application to build said church and appealed the decision of the building inspector to the board of zoning appeals which board had a meeting on the appeal, and after hearing rejected it by a majority vote of two to one; that the building now being used by the defendant for church purposes is a frame structure intended when built for residence purposes; that the defendant is not prosecuted for using the building for church purposes on account of the fact that it was a building unsuited to that use, but because it is an area restricted to residences which requires a special permit which defendant did not obtain."

There was also attached to the petition copies of various zoning ordinances, by the terms of which it is made unlawful to establish or use any building as a church in a residential district without a special permit, which may be granted provided such use in such location will in the judgment of said board "substantially serve the public convenience and welfare and will not substantially and permanently injure the appropriate use of the neighboring property." Ordinance 93-224 is as follows: "This article shall be enforced by the building inspector under the rules and regulations of the board of zoning appeals. . . It shall adopt from time to time such rules and regulations as it may deem necessary to carry into effect the provisions of this article. Any decision of the building inspector in the enforcement of this article may be appealed to the board of zoning appeals by any person adversely affected by such decision. Where there are practical difficulties or unnecessary hardships in carrying out the strict letter of the provisions of this article in a specific case, the board of zoning appeals shall have the power in each case to vary any provision in harmony with its general purpose and intent so that the public health, service, safety, and general welfare may be secured and substantial justice done."

In the amendment to the petition, the zoning ordinances were challenged as being unconstitutional as applied to said church and its members, because of alleged violation of stated provisions of the State and Federal Constitutions. 1. The building permit, alleged to have been issued by the inspector of buildings to New Mission Baptist Church on April 10, 1944, authorizing additions to the church building at the designated location, was presumably issued in accordance with the ordinance conferring authority upon the building inspector to enforce the zoning ordinances "under the rules and regulations of the board of zoning appeals," and was apparently valid. Nothing to the contrary appearing, it is presumed that the building inspector acted within his authority and according to the rules and regulations of the board. Hogg v. Rome, 189 Ga. 298 (1), 302 (6 S.E.2d 48); Town ofMcIntyre v. Scott, 191 Ga. 473, 476 (8) (12 S.E.2d 883).

It appeared from the petition that a former pastor of the church had been convicted in the recorder's court on a charge of having violated a zoning ordinance prohibiting the use of a building for church services in a residential district, without having first obtained a "special permit so to do;" that such conviction was reversed by the superior court on certiorari; and that the inspector of buildings shortly thereafter issued or caused to be issued the said permit of April 10. It is true that the permit did not state in terms that it was a permit to establish a church in a residential district, being in form "a permit to make additions to frame church at 375 Orange Street;" yet the alleged circumstances, together with the quoted language, show clearly that it was so intended. A permit to make additions to frame church would imply, at least prima facie, a permission to use such building for church purposes, and the letter written by the inspector on July 19, 1944, in which he attempted to revoke such permit, shows that he himself so construed it.

Nor could such permit be revoked by a mere ex parte declaration of the inspector, as was sought to be done in his letter of July 19, and the attempted revocation being wholly void, the permit remained of force. City Council of Augusta v.Sanders, 164 Ga. 235 (2) (138 S.E. 234).

2. In view of what has been said above as to the validity of the existing permit, there would be no violation of the zoning ordinances in conducting church services at the designated location, and consequently there was no warrant for the statement of the inspector, in the same letter of July 19, that he would "make cases against some one in charge of the church every time you hold a service in the church." While the petition was brought in the name of the church as an unincorporated voluntary association, and "Joseph Reese, as chairman of its board of deacons," it appeared from an exhibit to the petition that Joseph Reese was also a member of the church. It was alleged in the petition that, unless the defendants, the City of Atlanta and the inspector of buildings, are restrained and enjoined, they will continue to make cases in the recorder's court against the pastor or some of the church's officers, and that such course of conduct will "drive the membership of said church away, and make it impossible for said church to obtain the services of a pastor to conduct religious services in said church for fear of being prosecuted, arrested, and imprisoned for alleged violation of the zoning ordinance of the City of Atlanta," and that the petitioners have no complete and adequate remedy at law.

The petition contained, among others, the following prayers: That the court decree that said building permit of April 10, 1944, is still of force; that the defendants be enjoined from further making cases against said church, its officers and pastor, for alleged violation of said zoning ordinance, and from carrying out the threats contained in the notice (that is, the letter of July 19); and for general relief.

It follows from what has been said that the petition stated a cause of action for some of the relief sought, unless the contrary should be held, in view of certain additional questions, next to be considered.

3. The case does not come within the rule that equity will not intervene to enjoin a criminal prosecution. The letter of the building inspector stated that he would make cases against "some one in charge of the church every time you hold a service in the church." Only the "some one in charge" who might be thus prosecuted would have the right to defend against such prosecution. Those who were not prosecuted could only stand by, unless a court of equity should intervene. In the meantime, the church of which they were members might disintegrate, for that such prosecution would tend to drive the membership away, as well as deter ministers, as alleged in the petition. In such case, those who were not prosecuted would not have an adequate remedy at law, and could therefore resort to a court of equity for the purpose of preventing such unwarranted prosecutions and resulting disintegration of the church. Great Atlantic Pacific Tea Co. v. Columbus, 189 Ga. 458 (1) (6 S.E.2d 320); City ofAlbany v. Lippitt, 191 Ga. 756 (1) (13 S.E.2d 807);Braddy v. Macon, 194 Ga. 871 (1) (22 S.E.2d 801).

4. Nor was the petition bad in substance because it appeared therein that the action of the inspector of buildings, in attempting to revoke the permit of April 10, had not been appealed to the board of zoning appeals in accordance with ordinance 93-224, providing, in part, that "Any decision of the building inspector made in the enforcement of this article may be appealed to the board of zoning appeals by any person adversely affected by such decision." Even if such statement as to revocation, contained in a mere letter, amounted to a "decision" of the building inspector within the meaning of this provision, it was upon its face a void decision, and this being true, the plaintiffs were not required to appeal to the board of zoning appeals, before seeking injunctive relief. As to this question, the present case differs on its facts from Calhoun v. Gulf Oil Corporation, 189 Ga. 414 (5 S.E.2d 902); Washington Seminary v. Bass, 192 Ga. 808 (16 S.E.2d 565); Ballard v. Carrollton, 194 Ga. 489 (22 S.E.2d 81), in each of which the complaining party or parties had submitted the issue in controversy to an inferior judicatory whose judgment or decision was subject to review by certiorari, and it was held in effect that such remedy was exclusive. The plaintiffs here did not get into that situation with respect to the attempted revocation of which complaint is made, that is, the letter of July 19, 1944. On the necessity of following available administrative remedies before seeking judicial relief, see generally City Council of Augusta v. Loftis, 156 Ga. 77 (118 S.E. 666); Loftis Plumbing Co. v. Quarles, 188 Ga. 404 (3 S.E.2d 725); Evans v. Louisville Nashville R.Co., 191 Ga. 395 (12 S.E.2d 611); 42 Am. Jur. 590, § 202; Smithmeyer v. U.S., 147 U.S. 342 (13 Sup. Ct. 321,37 L. ed. 196); Moore v. Ill. Cen. R. Co., 312 U.S. 630 (61 Sup. Ct. 754, 85 L. ed. 1089); Oklahoma Public Welfare Commission v. Oklahoma ex rel. Thompson, 187 Okla. 654 (105 P.2d 547, 130 A.L.R. 873).

While it appears that the former pastor, T. R. Reid, did appeal to the board of zoning appeals after the refusal of a permit as originally applied for, the permit of April 10, 1944, was issued afterwards, following a reversal of his conviction, and the present controversy was never brought before the board of zoning appeals for determination.

5. Whether or not the church, as an unincorporated association, was such an entity as had the capacity to sue — and considering the petition as if it had been brought solely by Joseph Reese, a member of the church and chairman of the board of deacons — he, as a member of the church, had such an interest in the subject-matter as entitled him to complain in equity. Code, § 37-1002; Mutual Life Ins. Co. v. Inman Park PresbyterianChurch, 111 Ga. 677 (36 S.E. 880); Grand Chapter OrderEastern Star v. Wolfe, 172 Ga. 346 (157 S.E. 301); O'JayBed Spread Co. v. Hicks, 185 Ga. 507 (195 S.E. 564);Walker v. Grand International Brotherhood of LocomotiveEngineers, 186 Ga. 811 (199 S.E. 146); Howard v. Betts,190 Ga. 530 (9 S.E.2d 742); Evans v. L. N. R. Co., 191 Ga. 395, 404 (12 S.E.2d 611).

The petition assailed the zoning ordinances as being in violation of various provisions of the State and Federal Constitutions. In the view we take of the case, it is unnecessary to deal with any of these questions; for whether the ordinances be valid or invalid as applied to this church, the allegations were sufficient to state a cause of action for equitable relief, and it was error to sustain the general demurrer and dismiss the petition.

Judgment reversed. All the Justices concur.