Opinion
22788.
ARGUED JANUARY 12, 1965.
DECIDED FEBRUARY 8, 1965.
Mandamus. Fulton Superior Court. Before Judge Tanksley.
Griffin Patrick, Jr., for plaintiffs in error.
Fine Rolader, D. W. Rolader, contra.
Before mandamus will issue, the law must not only authorize the act to be done, but must require its performance, and to entitle one to the writ of mandamus, it must appear that he has a clear legal right to have performed the particular act which he seeks to have enforced.
ARGUED JANUARY 12, 1965 — DECIDED FEBRUARY 8, 1965.
On June 15, 1964, defendant in error (hereinafter referred to as defendant), James R. Hamilton, Jr., applied to the City of College Park for a permit to move a house from East Point into the City of College Park and a permit to erect, repair, and add to said house after moving it into College Park. The Building Inspector of the City of College Park inspected the house, received the building permit fee of $113.46, approved the application, and recommended to the Mayor Council of the City of College Park that a building permit be issued by them, pursuant to which a building permit was issued. The building inspector, upon receiving the fee of $150, issued defendant a permit to move said house.
Whereupon, on June 19, 1964, defendant purchased a lot at 2880 Lakeshore Drive for $5,000; on or about June 20, 1964, entered into a contract with one Julian Bankston to move said house to the above-described property for $3,500; and before July 31, 1964, Bankston began performance of the contract by getting the house ready to be moved. On July 31, 1964, the city notified defendant that his building permit had been revoked by the mayor and council on July 27, 1964. Defendant then advised the city of his completed arrangements and demanded that he be allowed to proceed to move his house; however, his demand was refused and he was advised that he would be stopped at the city limits if he attempted to so move his house.
Thereafter, defendant petitioned for a writ of mandamus to compel the reinstatement of his permits, and after hearing, the court entered its judgment granting a mandamus absolute ordering the city to reinstate said permits and allow the house to be moved upon defendant's posting bond as required by city ordinance, if any. Exception is to this judgment.
The facts of this case indicate that defendant relied on the city's issuing the aforementioned permits by spending substantial sums of money to purchase the property and in preparation for moving his house thereto, and defendant claims the city is now estopped from revoking the permits and that it is the duty of the city to reinstate same. However, the city maintains that defendant did not comply with the prerequisite requirements set out in its building code before the permits could validly be issued, in that he failed to submit a drawing of the proposed building and failed to post a bond as required by ordinance; that the building inspector did not inform the mayor and council of these deficiencies when he recommended the granting of the building permit, and that the building inspector was not authorized to waive said requirements.
The Building Code of the City of College Park provides: "105.4 — Plot Diagram. The Building Official shall require drawings showing the location of the proposed building or structure and of every existing building or structure on the site or lot. ..." It further provides as to the requirement of a permit to move a building that: "2204.4. The Building Official, as a condition precedent to the issuance of such permit, shall require a bond to be executed by person desiring such removal permit."
The record clearly shows that defendant has neither submitted the required drawings, nor posted any bond. Assuming, without deciding, that the facts herein establish a meritorious case of estoppel, the question is whether mandamus is the proper remedy.
"Before the writ of mandamus will issue against a public officer, the applicant must show, first, that he has a clear legal right to the relief sought and second, that there is no other adequate remedy." Solomon v. Brown, 218 Ga. 508, 509 ( 128 S.E.2d 735); State Hwy. Dept. v. Reed, 211 Ga. 197 (3) ( 84 S.E.2d 561). Before mandamus will issue, the law must not only authorize the act to be done, but must require its performance, Hart v. Head, 186 Ga. 823, 824 ( 199 S.E. 125); "and to entitle one to the writ of mandamus, it must appear that he has a clear legal right to have performed the particular act which he seeks to have enforced. Adkins v. Bennett, 138 Ga. 118 ( 74 S.E. 838); Cassidy v. Wiley, 141 Ga. 333 ( 80 S.E. 1046, 51 LRA (NS) 128); City of Atlanta v. Blackman Health Resort, 153 Ga. 499 (5), 505 ( 113 S.E. 545); Hodges v. Kennedy, 184 Ga. 400 ( 191 S.E. 377); Phillips v. Head, 188 Ga. 511 ( 4 S.E.2d 240)." Harmon v. James, 200 Ga. 742, 744 ( 38 S.E.2d 401).
The particular act which the petitioner seeks to require the city to do, is to reinstate the permits, No. 2300 and No. 2230, which permits authorize petitioner to move a house from a named place to another lot and to erect said house on said lot.
Counsel has cited no statute, ordinance, or other authority authorizing the City of College Park to reinstate permits of the character here sought which it had previously issued, and none requiring such action of the city. We know of no such authority for or requirement of the city to reinstate such permits previously issued and purportedly canceled. Thus it appears that the petitioner fails to meet the requirements of the law for the issuance of a mandamus against the city.
Judgment reversed. All the Justices concur.