Opinion
18197.
ARGUED APRIL 13, 1953.
DECIDED MAY 12, 1953.
Mandamus. Before Judge Crow. Dougherty Superior Court. February 25, 1953.
Robert W. Reynolds, for plaintiff in error.
Durden Durden, contra.
"There is always a prima facie presumption in favor of the good faith of the officer, and he who assails his official acts by employing the remedy of mandamus must prefer specific charges. . . Allegations of evidentiary facts tending to establish the ultimate fact, but which do not furnish a conclusive inference of the ultimate fact, are insufficient to excuse the absence of a positive allegation of such ultimate fact." Davis v. Arthur, 139 Ga. 74, 80 ( 76 S.E. 676); McGinty v. Gormley, 181 Ga. 644, 649 ( 183 S.E. 804). Under the foregoing rule, the petition failed to allege any failure to act by the building official pursuant to the ordinances of the city, and the trial judge properly sustained the general demurrer to the petition.
Judgment affirmed. All the Justices concur, except Atkinson, P. J., not participating.
No. 18197. ARGUED APRIL 13, 1953 — DECIDED MAY 12, 1953.
Colonial Dairies Inc. and others filed a petition for mandamus against the City of Albany and H. P. Derry, as building official of the city, and in substance alleged: The petitioners are residents and taxpayers, and own described property. The city has adopted the National Building Code of 1943, including its rules and regulations, which are valid ordinances of the city. Upon the adoption of the National Building Code, it is mandatory that all new construction within the city conform to this code. The building official has the duty, among others, to issue permits to erect buildings in the city. The city passed an ordinance extending the fire limits to all property west of Slappey Drive, and this extension covers all property owned by the petitioners. The defendant, H. P. Derry, as building official, issued a permit to Mrs. J. C. Huie to build a metal-clad building, and a permit was issued to C. M. Shackelford to build a metal-shed roof, on property located within the extended fire zone. Both permits and the construction thereon are in direct violation of the ordinances of the city. The Shackelford permit is void and in violation of law, because the construction consists of unprotected metal, and the ordinances of the city set forth in the building code, provide in part: "Except as hereinafter provided in this section, no building or structure of frame construction or of unprotected metal construction shall be hereafter erected within the fire limits." Under the building code, the city and the building official have the following duty: "He shall enforce all laws relating to the construction, alteration, repair, removal of buildings and for the purpose of enforcing compliance with law, to remove illegal or unsafe conditions, he shall issue such notices or orders as may be necessary." Counsel for the petitioners demanded that the building official carry out his duty under the above-quoted law, that he stop work on both pieces of property, and that he remove the structures that had been erected in violation of law. The building official advised counsel for the petitioners that the constructions were in violation of law, and that he was going out to the property and stop the work at once. The building official did stop the construction on the Huie property. Notwithstanding his statements to the petitioners, the work on the Shackelford property is still continuing (and by amendment it was alleged that within 48 hours after the suit was filed the structure on the Shackelford property was completed and occupied in violation of the ordinances of the city). The city owes to the petitioners, as citizens and taxpayers, the duty to comply with the laws which the city has created for the protection of the petitioners and other citizens.
The prayers were for mandamus nisi, that upon the hearing the mandamus be made absolute, and the defendants be required to enforce the ordinances relating to the Shackelford construction, and for process.
By amendment, provisions of the National Building Code, article 1, § 107, paragraphs (a) and (b), were attached as an exhibit, and by amendment it was prayed that the Shackelford property not be used until it conforms to the ordinances of the city, and that the defendants be required to issue such notices or orders as may be necessary to enforce compliance with the ordinances of the city.
Article 1, § 107 (a b), of the National Building Code, is as follows: "(a) Whenever the building official is satisfied that a building or structure, or any work in connection therewith, the erection, construction or alteration, execution or repair of which is regulated, permitted or forbidden by this ordinance, is being erected, constructed, altered or repaired, in violation of the provisions or requirements of this ordinance, or in violation of a detailed statement or plan submitted and approved thereunder, or of a permit or certificate issued thereunder, he may serve a written notice or order upon the person responsible therefor directing discontinuance of such illegal action and the remedying of the condition that is in violation of the provisions or requirements of this ordinance.
"(b) In case such notice or order is not promptly complied with, the Building Official shall request the corporation counsel to institute an appropriate action or proceeding at law or equity, to restrain, correct or remove such violation, or the execution of the work thereon, or to restrain or correct the erection or alteration of, or to require the removal of, or to prevent the occupation or use of, the building or structure erected, constructed or altered in violation of, or not in compliance with, the provisions of this ordinance or with respect to which the requirements thereof, or of any order or direction made pursuant to provisions contained therein, shall not have been complied with."
The demurrers of the defendants to the petition as amended were sustained, and the exception is to that judgment.