FRIEDMAN et al. v. CITY OF ATLANTA et al.

Atkinson, Presiding Justice.

A municipal ordinance prohibited operation of “any pin-ball machine,” and prescribed a penalty for violation of its terms. Before the date prescribed for the or dinance to become effective, certain owners and lessors of “pin-ball machines” instituted an action to enjoin enforcement of the ordinance, on the ground that it was ultra vires, unreasonable, and unconstitutional. The ground of complaint was that the fear of arrest would cause the lessees to terminate their contracts and cause the machines to be removed from their places of business, thereby causing irreparable damage to plaintiffs’ business and destroying the value of the machines. The attacks on the constitutionality of the ordinance were that it was discriminatory, denied plaintiffs equal protection, and deprived them of property without due process of law as guaranteed by the State and Federal constitutions. In the circumstances the plaintiffs’ petition for equitable relief was based, not on interference with a property right, but on mere fear or apprehension of such interference, and for this reason, whether or not there be other reasons, did not state a cause of action. Asa G. Candler Inc. v. Atlanta, 178 Ga. 661 (174 S. E. 129); Howard v. Briarcliff Zoological Corporation, 178 Ga. 595 (173 S. E. 391); Zaring v. Adams, 188 Ga. 97 (3 S. E. 2d, 635); Loftis Plumbing & Heating Co. y. Quarles, 188 Ga. 404, 409 (3 S. E. 2d, 725). No decision is made or intended as to constitutionality of the ordinance.

Judgment affirmed.

All the Justices concur, except Duchworth, J., who dissents.

Jenkins, Justice,

concurring specially. The plaintiffs asked a court of equity to adjudicate the invalidity of the ordinance in question, in order to protect their existing contracts, which they assumed their customers would seek to avoid by virtue of the ordinance that the plaintiffs allege is void on its face. Such an adjudication would be declaratory in character. If the ordinance should in point of fact be void and unconstitutional on its face, as alleged, the plaintiffs have a remedy to enforce their contracts with their customers, without the aid of any equitable relief. For these reasons I concur in the result, but not because the prayer of the petition is based on mere fear or apprehension of future interference with a valid property right, since the ordinance does by its terms prohibit the present use of the instrumentalities involved.