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CITY OF CEDARTOWN et al. v. PICKETT

Supreme Court of Georgia1942-04-15No. No. 14054
193 Ga. 840

Summary

Holding. The trial court erred in overruling the city's demurrer and granting an interlocutory injunction, because the owner had already had his day in court before the city commission and should have raised constitutional challenges at that time, with his remedy thereafter being certiorari review rather than an equity action. The judgment was reversed.

A property owner challenged a municipal order to abate his junk business as a nuisance by filing an equity petition seeking an injunction against the city's enforcement of the order. The owner had previously participated in a hearing before the city commission, where the commission made a judicial determination that the business constituted a nuisance under city ordinance. The Georgia Supreme Court held that because the owner had already had an opportunity to be heard before the municipal body and to raise constitutional objections at that time, he could not subsequently pursue an equity action to challenge the ordinance's validity. His proper remedy was to raise such defenses during the municipal proceeding and then seek review by certiorari if the municipal body erred.

The court clarified that municipal bodies acting in a judicial capacity—such as determining whether conduct violates an ordinance and ordering abatement—render decisions reviewable by certiorari, not merely legislative or ministerial determinations. A judgment from a municipal tribunal is not void simply because it may have erred on the constitutionality of an ordinance, particularly when the defendant received a full hearing and opportunity to present his case.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Whether certiorari is available to review judicial determinations by municipal bodies regarding ordinance violations
  • Whether an equity petition may be used to challenge an ordinance's constitutionality after full participation in a municipal proceeding
  • Proper procedure and remedy available when constitutional objections to municipal ordinances are raised

Procedural posture

The trial court granted an interlocutory injunction on the owner's equity petition challenging a city commission order to abate a junk business as a nuisance, and the city appealed.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

majority opinion

Jenkins, Justice.

1. Although certiorari is not an appropriate remedy to review or obtain relief from the judgment, decision, or action of an inferior judicatory or body rendered in the exercise of legislative, executive, or ministerial functions, such a writ does lie for the correction of errors in decisions by municipal corporations, courts or councils, like other inferior judicatories, when rendered in the exercise of their judicial powers. Bryant v. Board of Education, 156 Ga. 688 (1, a) (119 S. E. 601); Carr v. Augusta, 124 Ga. 116 (2), 121 (52 S. E. 300), and cit.; Code, §§ 19-101, 19-203.

(a) The decision by the governing body of a municipality, as to whether alleged acts constitute a nuisance in violation of a city ordinance, and whether they should be abated as provided by other city ordinances, made after a trial in which the parties at interest participated, was a judicial determination from which certiorari would lie, and not, as contended, an exercise of mere legislative, executive, or ministerial functions.

2. Whatever might he the proper limitation and scope of the recognized rule that the writ of certiorari will not lie to set aside a verdict or judgment which is not merely erroneous but absolutely void (see, in this connection, McDonald v. Farmers Supply Co., 143 Ga. 552, 555, 85 S. E. 861, and cit.; Allied Mortgage Cos. v. Gilbert, 189 Ga. 756 (2), 758, 8 S. E. 2d, 45) a judgment rendered hy a municipal judicatory, wherein the ordinance involved in the proceeding has been attacked as unconstitutional and void, and the defendant has had his day in court in that proceeding, is not itself void, even though it might be erroneous with respect to the decision made as to the validity of the ordinance. Forbes v. Savannah, 160 Ga. 701 (4) (128 S. E. 806); Brown v. Valdosta, 48 Ga. App. 125 (172 S. E. 72). The unanimous ruling in paragraph 4 of the Forbes decision was not overruled in Maner v. Dykes, 183 Ga. 118 (2) (187 S. E. 699), which dealt only with paragraph 2 of the Forbes ease.

3. Even where a case involves directly and primarily a property right, and even though equity may afford to the person so injured a more adequate and complete remedy than he would have under the procedure at law (Great Atlantic & Pacific Tea Co. v. Columbus, 189 Ga. 458, 464 (6 S. E. 2d, 320); City of Albany v. Lippitt, 191 Ga. 756, 760 (13 S. E. 2d, 807)), yet where he, as the defendant in a proceeding before a municipal judicatory, has elected to maintain his rights under that proceeding and has thus had his day in court (contrary to the facts in City of Acworth v. Western & Atlantic R. Co., 159 Ga. 610 (5), 126 S. E. 454, and Southeastern Greyhound Lines Inc. v. Atlanta, 177 Ga. 181, 170 S. E. 43), he can not ordinarily thereafter be heard, on a petition in equity, to question the constitutionality of the ordinance involved in the decision; but his remedy was to have made his defense before the municipal judicatory, and to have corrected by certiorari any error in its decision. Washington Seminary Inc. v. Bass, 192 Ga. 808 (16 S. E. 2d, 565); Calhoun v. Gulf Oil Corporation, 189 Ga. 414, 418 (3) (5 S. E. 2d, 902); Stephens v. Ellijay, 171 Ga. 612, 615, 616 (156 S. E. 253); Jones v. Johnson & Ledbetter Co., 185 Ga. 323 (6), 325 (194 S. E. 902); Mayor &c. of Montezuma v. Minor, 70 Ga. 191 (2), 193.

4. Under the preceding rulings, the court erred in overruling the general demurrer of the city to the petition for an injunction against its enforcement of an order by the city commission that petitioner abate his junk business as a nuisance, and in granting an interlocutory injunction. This is true for the reason that it appears from the petition that he had had his day in court, and his remedy was to raise the constitutional questions in the trial in which he participated before the city commission, and to review by certiorari any alleged error of that tribunal.

Judgment reversed,.

All the Justices concur.