City of Atlanta v. Smith
140 S.E. 369
Ga.
1927
Check Treatment

Concurrence Opinion

Gilbert, J.,

specially concurring. Since the decision of the ease when it was formerly before this court, the Supreme Court of the United States decided the case of Village of Euclid v. Ambler, 272 U. S. 365 (47 Sup. Ct. 114, 71 L. ed. 303). Counsel for plaintiff in error urge upon us that, on account of the decision in that case, this court should reverse its ruling in this case. Counsel also point out a change in the rules and practice of taking cases to the Supreme Court of the United States, and in-, sist that the reasons for following the rulings of the Supreme Court of the United States are now more urgent and compelling upon this court, even when strictly and technically such rulings are -not controlling. The U. S. Supreme Court itself declared, in Barbier v. Connolly, 113 U. S. 27, 30 (5 Sup. Ct. 357, 28 L. ed. 923), that its jurisdiction in such cases as this “is confined to a consideration of the Federal question involved, which arises upon an alleged conflict” with the ,constitution of the United States. Due, however, to our high regard for the strength and wisdom of its decisions, this court should follow that court not only when such decisions are controlling but also when by their reasoning and logic they furnish us with persuasive authority. We should decline to follow in cases not on Federal questions and where we can not bring our minds to accept the reasoning. Our constitution declares: “Legislative acts in violation of this constitution, or the constitution of the United States, are void, and the judiciary shall so declare them.” Article 1, section 4, paragraph 2, Civil Code (1910), § 6392. This mandate we are sworn to obey. In the Euclid ease the trial court in Ohio had rendered a decision to the effect that the restricting ordinance was unconstitutional; that is, that it was in conflict with the fourteenth amendment to *150the Federal constitution; that it denied equal protection of the law; and that it offended against certain provisions of the constitution of the State of Ohio. The Supreme Court of the United States held that the ordinance was not in conflict with said amendment, and did not deal with the question whether it was contrary to said State constitution. Although the provisions of the two constitutions were substantially the same, the decision of the United States Supreme Court under its own proper view of its jurisdiction was controlling only on the question of conflict with the Federal constitution. The case was decided on its own facts, which were in some respects widely different from those of the case now before us. Construed in connection with the facts of the two cases, the Euclid case in no substantial respect denies the principles announced by us in the Smith case. In the Euclid case the question arose on the threatened exclusion of industrial plants from the restricted area. This obviously includes industrial plants of all-kinds, industries generally recognized as nuisances per se, those which admittedly may be declared nuisances, as well as those which in their nature are not subject to such classification. The court stated that it dealt with the “general scope and dominant features” of the ordinance, “leaving other provisions to be dealt with as cases arise involving them.”

The Supreme Court, in the Euclid case, said:' “It is enough for us to determine, as we do, that the ordinance in its general scope and dominant features, so far as its provisions are here involved, is a valid exercise of authority, leaving other provisions to be dealt with as cases arise directly involving them. And this is in accordance with the traditional policy of this court. In the realm of constitutional law, especially, this court has perceived the embarrassment which is likely to result from an attempt to formulate rules or decide questions beyond the necessities of the immediate issue. It has preferred to follow the method of a gradual approach to the general by a systematically guarded application and extension of constitutional principles to particular cases as they arise, rather than by out of hand attempts to establish general rules to which future cases must be fitted.”

In this case the owner proposed to erect a retail store. I can not imagine every ordinary retail store as a nuisance per se or subject to be so declared in every conceivable location. Under the *151undisputed evidence in this case, I think the unbiased mind must conclude that the zoning ordinance with respect to the property concerned was unconstitutional and void. Each case must be decided on its own facts. In the decision when the case was previously here there are broad statements of principles, some broader than the precise case required. The decision should be construed to be based on its own facts and to extend no further. In the opinion, at page 799, it was stated: “In holding that the enabling act of our General Assembly, and the ordinance passed by the City of Atlanta in pursuance of that act, are unconstitutional and invalid, we do not mean to hold nor to intimate that the entire act or the entire ordinance is invalid; we confine our ruling to the holding that so much of the ordinance, and so much of the act as authorized that ordinance, as makes it unlawful to erect a store in a residential section set aside under the zoning law is unconstitutional and invalid. Both the act of the General Assembly authorizing the zoning, and the ordinance providing for zoning of the city, are elaborate in the statement of their purposes, and the provisions of that act and that ordinance, except in so far as they deal with the subject of erecting houses of the character especially under consideration, are not involved here and their constitutionality is not passed upon.”





Lead Opinion

Gilbert, J.

1. The rulings of the Supreme Court on questions of law, upon the interlocutory order of the trial judge granting an injunction, become the ,law of the case in so far as the case depends upon such questions of law. Ingram v. Trustees of Mercer University, 102 Ga. 226 (29 S. E. 273); Allen v. Schweigert, 113 Ga. 69 (38 S. E. 397); Western &c. R. Co. v. Third Nat. Bank, 125 Ga. 489 (54 S. E. 621) ; Southern Bell Telephone &c. Co. v. Glawson, 140 Ga. 507 (79 S. E. 136) ; Georgia Railway &c. Co. v. Decatur, 153 Ga. 330 (2) (111 S. E. 911); Towers v. City Land Co., 159 Ga. 486 (125 S. E. 837); Civil Code (1910), § 4336.

2. The principle in the decision may be reviewed and overruled in another case between different parties, but as between the parties the decision stands as the law of the case. Southern Bell Telephone &c. Co. v. Glawson, supra, at page 509, and cit. We are satisfied with the correctness of the decision of this case when it was formerly hero, and the request to review and overrule the same is therefore refused.

Judgment affirmed.

All the Justices concur. J. L. Mayson and G. 8. Winn, for plaintiff in error. Spence & Spence, contra.