Calhoun Ex Rel. Chapman v. Gulf Oil Corp.

5 S.E.2d 902 | Ga. | 1939

Where a city taxpayer and citizen, on his own information and verification, filed a petition in the name of the solicitor-general, to enjoin as a public nuisance an alleged encroachment in a city street by a lessee of property from the city, on the ground that the city authorities making the lease were disqualified from acting as triors under the statute providing for abatement by cities of nuisances therein, and where, pending the equitable proceeding, the petitioner invoked the statutory procedure to have the alleged nuisance abated by the city authorities, this amounted to a waiver of their disqualification; and after their adverse decision, his remedy was by certiorari in the name of the city, and not by a resumption of the equitable proceeding, which had in effect become functus officio; and this is true irrespective of any declaration or intimation by the citizen to the court or to the city authorities, in his statutory demand for removal, that he would resume his equitable remedy in the event of an adverse decision by the city authorities.

No. 13038. NOVEMBER 15, 1939. REHEARING DENIED DECEMBER 5, 1939. The solicitor-general, on the information and on "the responsibility" of M. A. Chapman, a resident citizen and taxpayer of the City of Butler, who alone made the affidavit verifying the petition and actively proceeded in the suit, filed a petition for injunction against the Gulf Oil Corporation, Walter Suggs, and J. R. Gray. It was alleged that the defendants were maintaining a nuisance by selling gasoline, oil, and automobile accessories at a filling-station. "jutting out many feet into the street," which had been in use by the public for many years; that this blocking and use of the street was a nuisance per se; that "no relief or action can be had from the mayor and council of said town, because by contract and lease it has tried to grant to defendants the right to occupy said street till January 1, 1940;" that the "council and mayor . . have utterly disqualified themselves to act, on account of making lease to oil company, and are relying on keeping said contract;" and that "said contract is ultra vires and void, and all the parties entered into and acted upon the same with full knowledge that a public street could not be rented to a private party." The petitioner prayed that "an injunction be granted against the further use of said street, . . [and] that the entire obstructions therein be abated as a nuisance." At a hearing on July 6, 1939, as to the grant of an interlocutory injunction, the defendant corporation and Suggs moved to dismiss the petition, "upon the ground that the contract signed by the town authorities was ultra vires and it was not bound by the same, and that exclusive jurisdiction was in the city." Upon indication of an adverse ruling by the court to this motion, the attorney for Suggs read an affidavit from the mayor and council, except one, stating that "no complaint had been made to it about the station, and that it felt itself qualified to properly act on the question." The bill of exceptions recites: that "plaintiff's counsel then stated to the court that the removal of the nuisance by the council would be a happy solution of the matter, and that the case could be continued until a future time, and plaintiff would complain to the council and demand its removal," and that "the court would hear the case on July 22, 1939." The court continued the case until that date. The "plaintiff wrote a letter to the council, demanding the removal of said nuisance." This letter was signed by counsel as "attorney for M. A. Chapman;" the same counsel also signing the petition for the solicitor-general and as "attorney at law for M. A. Chapman." This letter was as follows: "To the Mayor and Council of the Town of Butler, Butler, Georgia. . . I brought a bill in equity in Taylor superior court, to abate the filling-station formerly occupied by J. F. Gray, just west of the court-house, as a nuisance. The hearing was begun before Judge C. F. McLaughlin yesterday morning, and the point was made that the city would ordinarily have jurisdiction to abate the nuisance. We contended that the council would be hampered and disqualified on account of an invalid lease which had been executed to the Gulf Corporation. Affidavits were introduced, signed by some of the council, that they did not feel themselves disqualified and were open to proper action on the matter. In behalf of M. A. Chapman, the plaintiff in this case as a citizen and taxpayer of said town, I hereby formally ask and demand that you forthwith abate and remove said filling-station from the west side of the court-house in the City of Butler. Please answer this demand and complaint, in order that your exact action may be brought to the attention of the court. Judge McLaughlin stated that you could act on this complaint without any fear of violating his injunction."

Thereupon the mayor and council of the city mailed a notice to the defendants and the complainant, calling on the defendants to show cause before that body two days later why they should not abate the nuisance complained of. On July 13, 1939, a hearing was had before the mayor and council, which "went into the question as to the validity and merit of the complaint. The defendant was present with counsel. Counsel for M. A. Chapman . . did not appear; and while M. A. Chapman was present, he did not participate in the hearing to the extent that he offered any evidence or argument." After the hearing the mayor and council passed an order entitled "City of Butler vs. Gulf Oil Corporation," and reciting: "The above case coming on for hearing, and evidence being introduced and heard as to the removal of the filling-station just west of the court-house square, now in possession of Gulf Oil Corporation, and argument of counsel having been heard, it is considered and adjudged by the mayor and council of Butler, sitting in a body to determine the cause, that sufficient evidence has been introduced to satisfy the undersigned that the filling-station does not constitute a public nuisance; and the complaint is hereby dismissed." The order was signed by the mayor and the aldermen. It does not appear that there was any certiorari therefrom. On July 22, 1939, the hearing before the judge of the superior court was resumed. The defendants introduced the complaint filed by Chapman with the city authorities, and the order thereon, and moved to dismiss the petition on account of the facts shown thereby. The judge entered an order, reciting in substance the facts stated above, the complaint made to the city, the adverse ruling thereon, and dismissed the petition and vacated the restraining order. The petitioner assigned error on the grounds, that the filling-station under the facts was a nuisance per se; that he was not estopped by writing to the city as to any action by the city authorities; that the city was prevented "from acting on the question at all, on account of being a party to the actual lease of the nuisance, and its refusal to abate the nuisance is judicially shown by the order it passed;" that "there is no appeal from the action of the council, and the proceeding is ex parte and non-judicial as far as the State is concerned, and no right of certiorari would lie to the State, solicitor-general, or Chapman, because neither are parties to the case;" and that "for every reason the judgment of the court is erroneous." 1. "If a nuisance complained of shall exist in a town or city under the government of a mayor, . . aldermen, . . or a common council . . , such nuisance, by and with the advice of said aldermen, . . [or] council . . may be abated and removed by order of said mayor." Code, § 72-401. "If the nuisance [is] a public one merely, and no private individual suffered special damage therefrom, then the proceedings to abate the same should [be] in the name of the city, acting upon the motion of the corporate body itself, or in the name of the city upon the application of some citizen." Trust Co. of Ga. v. Ray,125 Ga. 485, 486 (54 S.E. 145). Where a statutory proceeding under the Code, § 72-401, might have been brought in the name of the city, upon the application of a citizen, to abate a public nuisance from which he has suffered no special damage, but it is made to appear that the nuisance complained of consists in the alleged use of a public street by a defendant lessee under a contract with the city, and that accordingly the city authorities, by reason of granting the permit for the alleged nuisance, are disqualified from acting as triors of the question whether such use of the city street constituted a nuisance, a court of equity would have jurisdiction of a suit brought in the name of the solicitor-general at the instance and on the information of such a citizen. Code, § 72-202; Hill v.McBurney Oil Co., 112 Ga. 788, 790 (38 S.E. 42, 52 L.R.A. 398); Williamson v. Souter, 172 Ga. 364 (3), 365 (157 S.E. 463); Broomhead v. Grant, 83 Ga. 451 (10 S.E. 116); Mayorc. of Columbus v. Jaques, 30 Ga. 506 (2, 3), 509.

2. "Parties, by consent express or implied, may not give jurisdiction to the court as to the person or subject-matter of the suit. It may, however, be waived, in so far as the rights of the parties are concerned, but not so as to prejudice third persons." Code, § 24-112. As to the qualification of judges and jurors, even though having an "interest in the cause," unless objection is made, see Code, §§ 24-111, 59-716.

3. In accordance with the foregoing principles, where a suit for injunction was instituted in the name of the solicitor-general at the instance and on the information and affidavit of verification of a citizen and taxpayer of a city, to abate a nuisance on account of an alleged encroachment in a city street, in which it was alleged that the city authorities were disqualified to determine the question, because the alleged encroachment was made by and under the authority of a written contract between the defendants and the city authorities, but where, pending the determination of such equitable proceeding, the complaining citizen, as the active movant in the proceeding, after informing the court of his intention so to do, actually entered his formal demand upon the city authorities to abate the nuisance in accordance with the prescribed statutory procedure as to a municipality, such action on the part of the complaining citizen amounted to a waiver of the disqualification of the governing authorities to pass upon the question at issue, so far as his own rights were concerned, and consequently to a renunciation of his right to further maintain the equitable procedure based upon such disqualification, which had thus in effect become functus officio. Having invoked a decision by the city authorities under the statutory procedure, his remedy after an adverse decision would have been by certiorari, which he could have maintained in the name of the city on his application and at his instance (see Mayor c. of Montezuma v. Minor, 70 Ga. 191 (2), 193), and not by a resumption of the equitable proceeding, founded upon the original disqualification of the municipal authorities. This is true irrespective of any declaration or intimation by the complaining citizen to the court or to the city authorities, in his statutory demand to remove, that he would resume his equitable remedy in the event of an adverse decision by the city authorities.

Judgment affirmed. All the Justices concur.