Opinion
14091.
APRIL 16, 1942.
Petition for injunction. Before Judge Franklin. Richmond superior court. January 5, 1942.
Fleming Fleming, for plaintiffs.
C. Wesley Killebrew, for defendants.
1. While the ordinance purported to confer certain powers on the barber board, including the power of inspection, which if exercised might result in physical interference with the plaintiff's business, the petition did not show that any of such powers had been exercised or attempted, and did not otherwise state a cause of action based on interference or threatened interference by such board. Flint v. Augusta, 192 Ga. 318 ( 14 S.E.2d 859). The case differs on its facts from Walker v. Carrollton, 187 Ga. 237 ( 200 S.E. 268), in which the petition contained averments as to repeated raids and searches.
2. The petition does not show that any effort has been made or will be made to enforce the ordinance otherwise than by criminal prosecution in the recorder's court, and as against such method of enforcement the plaintiff and others similarly situated will, so far as appears, have an adequate remedy at law. In such case equity will not intervene, either to declare the ordinance void or to enjoin its enforcement. Code, §§ 37-120, 55-102; Powell v. Hartsfield, 190 Ga. 839 ( 11 S.E.2d 33); Anthony v. Atlanta, 190 Ga. 841 ( 11 S.E.2d 197); Spur Distributing Co. v. Americus, 190 Ga. 842 ( 11 S.E.2d 30); Ray v. Dalton, 191 Ga. 46 ( 11 S.E.2d 193); City of Abbeville v. Renfroe, 192 Ga. 467 ( 15 S.E.2d 782).
3. If the decision in Chaires v. Atlanta, 164 Ga. 755 ( 139 S.E. 559, 55 A.L.R. 230), be construed as meaning that, in a case like the present, repeated prosecutions actual or threatened under a municipal ordinance alleged to be void would, without more, involve such injury or threatened injury to the business or property of the person affected as to justify a suit in equity to determine the validity of the ordinance and to enjoin its enforcement, the decision is to that extent contrary to earlier unanimous decisions by this court, which under the statute law of this State must be accepted as controlling in preference thereto. Code, § 6-1611; Calhoun v. Cawley, 104 Ga. 335 ( 30 S.E. 773); City of Atlanta v. Miller, 191 Ga. 767 ( 13 S.E.2d 814). For earlier unanimous decisions, see Phillips v. Stone Mountain, 61 Ga. 386; Mayor c. of Moultrie v. Patterson, 109 Ga. 370 ( 34 S.E. 600); City of Bainbridge v. Reynolds, 111 Ga. 758 ( 36 S.E. 935); Salter v. Columbus, 125 Ga. 96 ( 54 S.E. 74); Mayor c. of Shellman v. Saxon, 134 Ga. 29 ( 67 S.E. 438, 27 L.R.A. (N.S.) 452); Mayor c. of Jonesboro v. Central of Georgia Ry. Co., 134 Ga. 190 ( 67 S.E. 716); Jones v. Carlton, 146 Ga. 1 ( 90 S.E. 278); Volunteers of America v. Atlanta, 152 Ga. 461 ( 110 S.E. 282). Compare Paulk v. Mayor Aldermen of Sycamore, 104 Ga. 24 ( 30 S.E. 417, 41 L.R.A. 772, 69 Am. St. R. 128), and Georgia Railway Electric Co. v. Oakland City, 129 Ga. 576 ( 59 S.E. 296), both of which, though decided by less than six Justices, were followed in Mayor c. of Shellman v. Saxon, 134 Ga. 29 (supra).
4. If the instant petition might be taken as showing, not that the plaintiff is seeking to enjoin a criminal prosecution, but that since his conviction of a single violation he has complied with the ordinance, and is now seeking relief on the ground that such compliance is resulting in irreparable damage, the action is still not maintainable, since the only allegation as to irreparable damage, to wit, "The enforcement is now working, and will continue to work, irreparable damage to plaintiff and the others in their business," is too general and indefinite to authorize equitable relief. Walnut Transfer Storage Co. v. Harrison, 185 Ga. 720 ( 196 S.E. 432). Under such construction, the petition would be fatally defective as seeking a mere declaratory judgment, whereas "a declaratory action is not maintainable in this State." Southern Railway Co. v. Georgia, 116 Ga. 276 (2) ( 42 S.E. 508); Spur Distributing Co. v. Americus, 190 Ga. 842, (supra), and see especially the discussion and citations on page 847.
5. Under the foregoing rulings, the petition does not present a case in which it would be proper to determine the validity of the ordinance in question; and unless and until such a case is presented, no decision thereon will be made. The court did not err in sustaining the general demurrer and dismissing the action.
Judgment affirmed. All the Justices concur.
ATKINSON, Presiding Justice, concurs specially, on the ground, as indicated in note 4, that the petition does not contain sufficient allegations as to irreparable damage. He dissents from the other rulings.
No. 14091. APRIL 16, 1942.
On November 5, 1941, J. E. Stephens, "as plaintiff in behalf of himself and others similarly situated," filed suit against the City Council of Augusta and the "City Barber Board," consisting of named individuals. The petition alleged: The plaintiff is a World-War veteran holding certificates from the ordinary of Richmond County and the State Revenue Commissioner, authorizing him to conduct the business of a barber. He is engaged in such business in the City of Augusta. In April, 1940, the City Council of Augusta passed an ordinance providing for establishment of hours of work and prices for service, and otherwise regulating such business in the city. The ordinance also created a City Barber Board to administer its provisions under various powers conferred, copy of the ordinance being set forth in full as an exhibit to the petition. On June 6, 1940, the board caused a notice to be published in the Augusta Herald, stating that beginning on Monday, June 17, 1940, "all barber-shops will comply with this law," and setting forth prescribed hours and prices. The ordinance having in effect provided that all orders of the board as to hours and prices should remain in force for the period of one year only unless renewed, the petition further alleged that on July 31, 1941, the board renewed the schedule as to hours and prices, and that its action in so doing was confirmed by the city council on August 4 thereafter. Other allegations were to the effect that the ordinance was void, for various reasons. Besides attacking the ordinance as a whole, the petition challenged particular parts of it, including the following and other provisions purporting to confer stated powers on the barber board:
By section 8 the board was required to make certain investigations, and to that end was authorized to subpoena barbers, apprentices, and other persons from whom information might be desired. Section 10 provided: "Any member of the City Board or its representative designated for such purpose shall have access to and may enter at all reasonable hours any place where barbering is being carried on, and shall have power to inspect all books, papers, records or documents, and any place within the City of Augusta, for the purpose of ascertaining facts to enable the City Barber Board to administer this ordinance; and the board may institute such action in the city courts as may appear necessary to enforce compliance with any provision thereof and to enforce compliance with any ruling, subpoena, or order of the board made pursuant to the provisions of this ordinance, and in addition to any other remedy may apply to the city court for relief by injunction."
Section 12 was as follows: "Violation penalties. A violation of any provision of this ordinance or any rule or subpoena or order of the City Barber Board, lawfully pursuant thereto as otherwise conviction by a fine of not less than $25 and not exceeding one hundred dollars ($100), or by imprisonment in the city stockade not exceeding six months, or both, each day during which such violation shall continue shall be deemed a separate violation and be punishable as such."
On October 20, 1941, the plaintiff was arrested under a charge of violating said ordinance by keeping his barber shop open on a certain day after the hour prescribed, and on October 22, 1941, he was convicted in the recorder's court and sentenced to pay a fine of $25 or serve 50 days in prison.
"Plaintiff is not the only barber in Augusta whose rights are violated by the enforcement of said illegal ordinance. Plaintiff has the names of twenty-eight (28) barbers who do not belong to the organization controlled by the City Barber Board and who join with this plaintiff in protesting against the enforcement of said ordinance. . . The enforcement is now working, and will continue to work, irreparable damage to plaintiff and others in their business.
"Wherefore, plaintiff prays this honorable court to order this petition filed, and after a full hearing to declare said ordinance invalid and grant a permanent injunction against it."
The foregoing is a statement of all of the material allegations of fact, and of all of the prayers. The court sustained a general demurrer and dismissed the petition, and the plaintiff excepted.