Opinion
20260, 20262.
ARGUED NOVEMBER 10, 1958.
DECIDED NOVEMBER 19, 1958.
Injunction. Jackson Superior Court. Before Judge Clinkscales. September 2, 1958.
Hope D. Stark, Edwin Fortson, J. N. Rainey, Davis Davidson, Emory F. Robinson, Wheeler, Robinson Thurmond, Floyd G. Hoard, for plaintiffs in error.
Frank Grizzard, Frank Bowers, Marvin D. Pierce, Jr., contra.
1. Where, in these equity cases seeking injunctive relief, the rules nisi set interlocutory hearings in both cases on a definite date, and ex parte restraining orders were issued, and, three days before the date set for the hearing, the judge on his own motion in the absence of the defendants issued an order reciting that one of the petitioners was seriously ill and could not attend court for several months, and ordering the cases taken off the calendar, and reciting that a hearing thereon would be set by some future order, and providing that the previous restraining orders should remain in full force and effect, such judgment is the legal equivalent of a permanent injunction, since no time limit is put upon it and it is therefore reviewable by a direct bill of exceptions.
2. Since the foregoing injunctions issued without a jury and without a hearing, they must be based upon the allegations of the petitions and, even though no ruling has been made upon the demurrers, we pass upon whether or not all the allegations would authorize the injunction; and, since they consist entirely of invalid constitutional attacks upon a law and seek to interfere with criminal prosecutions by preventing public officers from performing duties imposed by that law, they do not, if true, authorize the judgments restraining such officers, and are erroneous.
ARGUED NOVEMBER 10, 1958 — DECIDED NOVEMBER 19, 1958.
In case number 20262, Herbert P. Womack, Jr., alleging the pendency in the City Court of Jefferson of a criminal case against him, sought an injunction against the judge, solicitor, clerk, and sheriff of that court, together with the three county commissioners of Jackson County, alleging that the act (Ga. L. 1903, p. 138) creating the City Court of Jefferson is unconstitutional and void, because sec. 31 thereof provides for the judge of the superior court to send down from the superior court to the city court for trial all misdemeanor presentments and indictments which may not be disposed of at the end of the term of the superior court by pleas, and sec. 32 provides that all justices of the peace and notaries public of the county shall bind over to the city court all misdemeanor cases. The petition alleges that these sections offend the provisions of the Constitution (Code, Ann., § 2-401) requiring uniformity. The prayer is for injunction prohibiting each defendant from operating the City Court of Jefferson, and a decree declaring the entire city court act unconstitutional and void.
In case number 20260, Charles Waters alleges that there is pending in the City Court of Jefferson a criminal case against him. He names the judge, solicitor, and the sheriff of that court as defendants and attacks the city court act above in its entirety upon the same alleged unconstitutional provisions as in the above case, and seeks the same relief by injunction and decree that the city court act is unconstitutional and void. Two persons, alleging themselves to be citizens and taxpayers, were by an ex parte order allowed to intervene, and that order, issued at chambers, is excepted to here.
Upon presentation of the petition in the latter case on July 3, 1958, a rule nisi issued setting an interlocutory hearing on September 5, 1958, and in the meantime the defendants were restrained as prayed. In the first case the rule nisi issued on August 5, 1958, setting an interlocutory hearing on September 5, 1958, and in the meantime restrained the defendants as prayed. On August 7, 1958, the intervention was allowed subject to objection.
On September 2, 1958, an ex parte order was issued by the judge, reciting that the plaintiff Womack was seriously ill and unable to appear at court for several months, and counsel for the plaintiffs are engaged in other courts, and ordered that the above-stated cases — there being above the order an entry stating the parties in both cases — "be removed from the trial calendar of Sept. 5, 1958, and that the same be reset by further order of the court. In the meantime, the restraining orders heretofore issued in said cases shall remain in full force and effect. Let the clerk notify all parties of interest in said cases of this order. Maylon B. Clinkscales, Judge, Superior Courts Piedmont Circuit."
The defendants in each case tendered to the judge on September 9, 1958, bills of exceptions and each was approved by the judge on September 16, 1958. Errors are assigned on the ex parte order of September 2, 1958, on the ex parte orders of July 3, 1958, and August 5, 1958, restraining the defendants, and the order of August 7, 1958, allowing the intervention. The defendants in error in each case have moved to dismiss the writs of error upon the grounds that they are premature and except to no reviewable judgments.
1. We are fully acquainted with the consistent rulings of this court that neither a temporary restraining order nor a continuance which is temporary of such order is reviewable. We recognize and give full effect to Code (Ann.) § 6-701 (Ga. L. 1957, pp. 224, 230), Wofford Oil Co. v. City of Nashville. 177 Ga. 460 ( 170 S.E. 369), Hall v. Hall, 185 Ga. 502 ( 195 S.E. 731), and Grizzel v. Grizzel, 188 Ga. 418 ( 3 S.E.2d 649), cited by defendants in error in support of this motion to dismiss. But such ex parte orders are not intended to serve the function of a permanent injunction. Indeed to indefinitely deprive one of freedom of action without notice and an opportunity to be heard would be the rankest sort of denial of due process as is guaranteed by both the State and Federal Constitutions (Code §§ 1-805, 1-815; Code, Ann., § 2-103). We are not concerned with title or name the judge attaches to his judgment, as its provisions determine what its name should be. The true function of an ex parte restraining order is to prevent serious harm until a prompt hearing of the evidence can be had; and based upon that evidence alone, an interlocutory injunction, if authorized, may issue effective until the trial.
There are a number of circumstances in this record that aid in classifying the order of September 2, 1958. First, it is left open to speculation why the judge, in the absence of the parties, entered it? Second, how the judge acquired knowledge of the illness of one plaintiff and acted thereon without giving the defendants a chance to controvert such evidence at a hearing set just three days thereafter? Third, why both cases and the injunction should be continued because of the illness of the plaintiff in only one case? Fourth, could there be a reasonable and just reason for the judge to object to gaining information upon the hearing of the other case which might show that, as a matter of fact and of law, neither of the defendants should be shackled by an ex parte restraining order? Fifth, the best way possible to determine if any legal case whatsoever existed was a consideration of the demurrers to the petitions, and the briefs here show that he not only has not ruled upon them but has signed an order to hear them in 1959. The foregoing as well as other relevant circumstances show that the order of September 2, 1958, not only in fact indefinitely enjoins all the defendants but was intended by the judge to have that precise effect. Being such an order and being a clear taking of liberty without due process, it is reviewable by this bill of exceptions and the motion to dismiss is denied. We also point out that Code § 6-901 as amended in 1957 (Ga. L. 1957, pp. 224, 232) provides that "Either party in any civil cause, and the defendant in any criminal proceeding in the superior or city courts may except to any sentence, judgment, or decision, or decree of such court, or of the judge thereof in any matter heard at chambers." Even more so is this true when done at chambers without a hearing. See Shaw v. Goodman, 135 Ga. 230 ( 69 S.E. 173).
2. Since the only possible basis for the ex parte restraining orders excepted to is such as is alleged in the petitions, despite the absence of a ruling upon the demurrers to said petitions, which is the method for determining the sufficiency of petitions, we nevertheless can and do consider alleged facts to determine if there existed any such factual justification for the equitable judgments, based solely thereon, which we are called upon to review. That all allegations of unconstitutionality of the entire act creating the City Court of Jefferson (Ga. L. 1903, p. 138) — which are confined entirely to alleged invalidity of sections 31 and 32 of the act, which deal with matters not elsewhere mentioned — utterly fail to allege any reason whatever for declaring the whole act unconstitutional, is settled law and can not be seriously questioned. Stegall v. Southwest Ga. Regional Housing Authority, 197 Ga. 571 ( 30 S.E.2d 196); Krasner v. Rutledge, 204 Ga. 380 ( 49 S.E.2d 864); Williams v. Ragsdale, 205 Ga. 274 ( 53 S.E.2d 339); Franklin v. Harper, 205 Ga. 779 ( 55 S.E.2d 221). But even were the constitutional attacks meritorious, another and legally insuperable barrier to equitable relief against the criminal prosecutions of each of the petitioners is encountered in the provisions of Code § 55-102. There it is provided: "Equity will take no part in the administration of the criminal law. It will neither aid criminal courts in the exercise of their jurisdiction, nor will it restrain or obstruct them." Violation of the plain provisions of this law can not be justified upon allegations that the 1903 act creating the criminal court is unconstitutional because of the provisions of sections 31 and 32 thereof. White v. City of Tifton, 129 Ga. 582 ( 59 S.E. 299); Snow's Laundry v. City of Dublin, 182 Ga. 316 ( 185 S.E. 343); Sosebee v. City of Demorest, 182 Ga. 338 ( 185 S.E. 330). Since, as ruled above, no allegations show invalidity of the act creating the City Court of Jefferson, which imposes upon all the defendant officers public duties, equity can not by injunction prevent the performance by these officers of any duties imposed upon them by that act. Breeden v. Breeden, 202 Ga. 740 ( 44 S.E.2d 667); Hardy v. Prather, 208 Ga. 764 ( 69 S.E.2d 269).
For all the foregoing reasons, plus the fact that the judge can not grant a permanent injunction without a jury, the trial judge had before him nothing to authorize the issuance of the equitable orders of restraint and injunction. Such orders are erroneous, constitute gross abuse of discretion, and are
Reversed. All the Justices concur.