Coffey v. City of Marietta

212 Ga. 189 (1956) 91 S.E.2d 482

COFFEY et al.
v.
CITY OF MARIETTA et al.

19210.

Supreme Court of Georgia.

Argued January 10, 1956. Decided February 14, 1956.

W. H. Burke, Conley Ingram, Hayden C. Covington, for plaintiff in error.

Scott S. Edwards, Jr., contra.

CANDLER, Justice.

1. Where a court of equity does not have jurisdiction, it will not assume jurisdiction for the purpose of inquiring into the validity of a municipal ordinance. City of Douglas v. South Georgia Grocery Co., 178 Ga. 657 (174 S.E. 127); City of Atlanta v. Universal Film Exchanges, 201 Ga. 463 (39 S.E.2d 882).

2. In principle, this case is controlled, adversely to the contentions of the plaintiff, by the rulings in Calhoun v. Gulf Oil Corp., 189 Ga. 414 (5 S.E.2d 902); Washington Seminary v. Bass, 192 Ga. 808 (16 S.E.2d 565); City of Cedartown v. Pickett, 193 Ga. 840, 843 (20 S.E.2d 263); Lively v. Grinstead, 210 Ga. 361 (80 S.E.2d 316); Ledbetter v. Calloway, 211 Ga. 607 (87 S.E.2d 317); and Spruill v. Dominy, 212 Ga. 145 (91 S.E.2d 43). No attack is here made on the validity of the 1946 act for "Zoning and Planning in Municipalities," which the governing authority for the City of Marietta declared to be effective in that municipality. And as ruled by this court in Ledbetter v. Calloway, supra, this act affords the plaintiff an adequate and complete statutory remedy by successive appeals from the administrative order of the city's chief inspector; and it is well settled that equity grants no relief to one who has an adequate and complete remedy at law. Code §§ 37-102, 55-101; Rice v. Mayor &c. of Macon, 117 Ga. 401 (43 S.E. 773); Scarbrough v. Cook, 208 Ga. 697 (1) (69 S.E.2d 201). As shown by our statement of the case, the plaintiff submitted his cause to the city's chief inspector; and being dissatisfied with his administrative order of May 19, 1955, he should have pursued the right of appeal supplied him by the 1946 zoning and planning act which was then effective in the City of Marietta.

3. From what has been said in the preceding divisions, it necessarily follows that the trial judge did not err in rendering the judgment complained of.

Judgment affirmed. All the Justices concur.

The legislature in 1946 passed an act for "Zoning and Planning in Municipalities." (Ga. L. 1946, p. 191). Section 17A of the act provides: "This act shall not affect any municipality now having a system of zoning and planning ordinances and regulations unless the governing authority of such municipality shall by resolution declare this act to be effective." The governing authority of the City of Marietta by resolution declared the zoning and planning act of 1946 to be effective in that city. Sections 4 and 25 of a zoning ordinance which the City of Marietta adopted on January 2, 1951, prohibit the erection of a church in an area of the city zoned for residences until a building permit is obtained pursuant to rules and regulations therein prescribed. By section 30 of the city's 1951 zoning ordinance, enforcement thereof, including the power to grant and revoke building permits, is vested in the city's chief inspector. By this section of the ordinance, he has authority to revoke any building permit granted on a false statement of any fact material to the issuance thereof. On application therefor, a permit was granted on April 26, 1955, to Marietta Congregation of Jehovah's Witnesses, Central Unit, an unincorporated religious congregation, for the erection of a church building at a designated location in the City of Marietta. On May 16, 1955, J. H. Coffey, the applicant for and holder of the aforementioned permit, was notified by the city's chief inspector that objections to the erection of a church building at the place designated in his permit had been filed by persons claiming to be residents and property owners, living within 300 feet of the proposed church site; that a "meeting" would be held on May 18, 1955, at a specified place to "discuss" the matter; and that he would be given an opportunity to show cause at that time and place why his building permit should not be revoked. On May 19, 1955, the city's chief inspector notified Coffey that his building permit had been revoked. Coffey, as one of the three trustees of the church and as an individual, and also in behalf of other members of the church in like situation, filed a petition for injunctive relief against the City of Marietta and Charles C. Davis, Jr., individually and as city engineer.

In addition to the facts above stated, his amended petition in substance alleges: The defendant Davis, by virtue of his office as city engineer, is the City of Marietta's chief inspector. The petitioner's attorney attended a "meeting" with the defendant Davis on May 18, 1955. At this meeting the petitioner's attorney informed the defendant Davis that objections to the erection of a church building, by persons claiming to be property owners and residents living within 300 feet of the proposed church site, would not be a legal ground for the revocation of his building permit. Since receipt of notice that his permit had been revoked, the petitioner and other members of the church have been orally informed by the defendant Davis that they will at their peril proceed with the construction of a church building on their property; that he will cause the arrest and prosecution of the petitioner and other members of the church if they proceed with the construction of their church building; that he will take any action necessary to stop construction if they proceed with their building program; that their church building is not wanted in the corporate limits of the City of Marietta, and they should acquire land outside the city in the county, and apply for a county building permit; and that, if they persist and erect their church building, the City of Marietta will be under no obligation to furnish stated municipal services, though some of such services have already been paid for by the church. It is also alleged that sections 4, 25, and 30 of the zoning ordinance which the City of Marietta adopted on January 2, 1951, offend enumerated provisions of the State and Federal Constitutions.

The petition was dismissed on general demurrer and the exception is to that judgment.