Sikes v. City of Dublin

Hawkins, Justice. 1. While the petition contains many grounds of attack upon § 20 of the charter, the zoning ordinances of the City of Dublin, and the manner of their enforcement by the mayor and board of aider-men, some of which might, in a proper case, be held to be meritorious (Butler v. City of Dublin, 191 Ga. 551, 13 S. E. 2d 362), the only possible reason alleged for invoking the equitable remedy of injunction in this case is set out in paragraph 21 of the petition, the allegations of which are as follows: “That the Zoning Ordinance of 1950 provides that any person violating any provision thereof shall be punished as provided in Section 78 and Section 79 of the City of Dublin Code. That your petitioners have been threatened with prosecution if they proceed to improve their property above described by said city and under the terms of said ordinance.” Held: A petition which seeks to enjoin a prosecution under a municipal ordinance on the ground that it is unconstitutional, but which fails to allege that any arrest has been made, or that any property has been levied upon, or that there has been any other interference with the person or property rights of the petitioner, and which alleges merely a threat or mere apprehension of prosecution under the terms of the ordinance attacked, [881] fails to state a cause of action. Code § 55-102; City of Tifton v. Cooper, 206 Ga. 379 (57 S. E. 2d 196); Thomas v. Mayor &c. of Savannah, 209 Ga. 866 (76 S. E. 2d 796), and cases there cited; City of Bainbridge v. Olan Mills, 207 Ga. 636 (63 S. E. 2d 655); Baker v. City of Atlanta, 211 Ga. 34 (83 S. E. 2d 682). Argued September 13, 1955 Decided October 11, 1955. W. W. Larsen, W. W. Larsen, Jr., Herbert Kimzey, for plaintiffs in error. Wm. Malcolm Towson, R. M. Daley, contra. 2. The trial judge erred in overruling the general demurrer to the petition, and all further proceedings are nugatory. Judgment reversed on cross-bill of exceptions; main bill of exceptions dismissed. All the Justices concur.