153 Ga. 499 | Ga. | 1922
(After stating the foregoing facts.)
In the twelfth ground it is alleged that the court erred in failing to charge the jury that if it appeared from the evidence that plaintiff had failed to file with his application a statement of the class of persons he intended to treat in the proposed institution, he would not be entitled to demand a permit for the erection of said institution. This involves the question, whether section 1430 applies to applications for permits to build the class of buildings which applicant proposes to build. Section 729 of the city code of Atlanta is 'as follows: "It shall be unlawful for any person or persons, or corporation, to construct, erect, or build a house to be used as a private sanitarium, hospital or boarding house, or other house of like character, wherein patients are kept, and medical or surgical treatment is given or performed, except in the following manner:. The applicant shall file with the building inspector, in writing, a request for a permit to build, which shall plainly set forth the character of the building, and for .what purpose it is to be used; if no objections thereto be filed within twenty-four hours, the same shall be granted; if objections, in writing, are filed by adjacent-property owners or near neighbors, within the time above specified, the application, and objections thereto, shall be transmitted to the Mayor and
Section 729 of the city code of Atlanta makes it unlawful for any person, persons, or corporation “ to construct, erect,- or build a house to be used as a private sanitarium, hospital or boardinghouse, or other house of like character, wherein patients are kept, and medical and surgical treatment is given or performed;” and then prescribes the method by which a permit to build such house must be obtained.
This court held, when this case was here before, that “ a building alleged to be used as a e tourist and health resort ’ is prima facie including in that class described ” in the above ordinance. Blackman Health Resort v. Atlanta, 151 Ga. 507 (107 S. E. 525).
Section 1430 of the city code provides, “ that it shall be unlawful for any person or persons in this city to erect or maintain any hospital, infirmary, house or place of refuge, or reformatory, or asylum, or other place where persons áre received for reformation or treatment, without first having obtained the consent of the Mayor and General Council of said city for the erection and maintenance of the same; and all applications' . . for permission to erect, maintain, or carry on any place for any such purpose must plainly
It is urged” by able counsel for the plaintiff, that these two sections deal with two separate and distinct classes of institutions; and that for this reason section 1430 has absolutely no bearing upon the issues made under the pleadings in this case. Both sections embrace hospitals by name. Section 729 embraces private sanitariums. Webster’s New International Dictionary defines a sanitarium as follows: “ A health station or retreat.” Plaintiff’s health resort is a sanitarium, because it is a health station or retreat. Section 1430 includes houses or places of refuge. These latter are close kin to sanitariums, if not the same. Section 729 embraces boarding-houses or other places where patients are kept, and medical and surgical treatment is given. Section 1430, after naming hospitals, infirmaries, houses or places of refuge, reformatories and asylums, names “ other places, where persons are received for reformation or treatment.” Places where persons are received for treatment embrace boarding-houses or other houses of like character, where patients are kept, and medical and surgical treatment is given. But it is urged, that the “ other places, where persons are received for reformation or treatment,” in section 1430 follow the words “ any hospital, infirmary, house or place of refuge, or reformatory, or asylumand upon the familiar doctrine of ejusdem generis and noscitur a sociis these “ other places ” must be of like kind with those which precede them. Where general words follow particular and specific words, the former must be confined to things of the same kind. Sanders v. State, 86 Ga. 717, 719 (12 S. E. 1058). This does not mean that the places named by particular words must be of the same kind as each of the places mentioned in the general words. It sufficeth if the former places are of the like kind with one or more of the latter places. It seems to us, that health resorts belong to the genus embracing hospitals, infirmaries, houses or places of refuge, reformatories and asylums. The genus likewise embraces private sanitariums, boarding-houses, or other places of like character, where patients are kept, and medical and surgical treatment is given. Section 1430 supplements section 729, and adds to the requirements of the latter. If we are correct in this, then the court should have permitted Dr. Blackman to answer the question
To entitle one to the writ of mandamus, it must appear that he has a clear legal right to have performed the particular act which he seeks to have enforced. Adkins v. Bennett, 138 Ga. 118 (74 S. E. 838); Cassidy v. Wiley, 141 Ga. 333 (80 S. E. 1046, 51 L. R. A. (N. S.)128).
The court, whether requested or not, should give to the jury appropriate instructions on every substantial issue in the case presented by the pleadings and evidence, and failure to do so is cause for new trial. Central Railroad v. Harris, 76 Ga. 501; Walker v. State, 122 Ga. 747 (50 S. E. 994).
Was this a good objection? Does the doctrine of res judicata apply under the law and facts of this case? This depends upon
In what capacity did the city council act in passing upon the application for this permit? Did it act judicially or quasi-judicially, or was it performing a mere administrative act?
Section 729 of the code of Atlanta provides that “the applicant shall file with the building inspector, in writing, a request for a permit, which shall plainly set forth the character of the building, and for what purpose it is to be used. If no objections thereto be filed within twenty-four hours, the same shall be granted. If objections, in writing, are filed by adjacent-property owners or near neighbors, within the time above specified, the application and objections thereto shall be transmitted to the Mayor and General Council, and a hearing and judgment had thereon, and the permit shall not be granted by said building inspector until directed so to do by the Mayor and General Council after hearing the applicant
A proceeding before the board of police commissioners, discharging a policeman after trial in the manner prescribed by the law creating this board, was quasi-judicial in its nature, and the judgment of the board was subject to review by certiorari, iike any other tribunal exercising judicial functions. Tibbs v. Atlanta, 125 Ga. 18 (53 S. E. 811).
So it seems clear that the mayor and general council of Atlanta acted judicially or quasi-judicially in hearing the plaintiff’s
Judgment reversed.