City of Brunswick v. Anderson
204 Ga. 515
Ga.
1948
Check Treatment
Candler, Justice.

1. The use of a city’s streets for the transportation of passengers for hire in a taxicab is not an inherent right, but a mere privilege which the municipality, in the exercise of its discretion, may grant or refuse. Schlesinger v. Atlanta, 161 Ga. 148 (129 S. E. 861); Clem v. LaGrange, 169 Ga. 51 (149 S. E. 638, 65 A. L. R. 1361); McWhorter v. Settle, 202 Ga. 334 (43 S. E. 2d, 247). It is a privilege which the city may in the exercise of its discretion grant to one and deny to another. Rogers v. Carr, 203 Ga. 594 (47 S. E. 2d, 813). Being a privilege only, it does not come under the protection of the State and Federal Constitutions, since they protect rights alone. Schlesinger v. Atlanta, supra. In a proper case, it is the intent and purpose of our Declaratory Judgment Act (Ga. L. 1945, p. 137) to settle and afford relief from uncertainty and insecurity with respect to rights and other legal relations between the parties. Clein v. Kaplan, 201 Ga. 396 (40 S. E. 2d, 133). But it is not the function of the act to settle controversies, and make binding declarations, concerning a mere privilege. There must be in the controversy a legally protectible interest existing in virtue of some public law or ordinance. Compare McWhorter v. Settle, supra, where the legal right was established by ordinance. See also Borchard on Declaratory Judgments, p. 48.

2. “Equity will take no part in the administration of the criminal law. It will neither aid criminal courts in the exercise of their jurisdiction, nor will it restrain or obstruct them.” Code, § 55-102. The same rule applies in quasi-criminal proceedings. Starnes v. Atlanta, 139 Ga. 531 (77 S. E. 381). There is no exception to this rule. City of Atlanta v. Universal Film Exchanges, 201 Ga. 463 (39 S. E. 2d, 882). There are a " number of decisions by this court which hold that because of the pleaded facts the rule is not applicable, among the more recent of which are Great Atlantic & Pacific Tea Co. v. Columbus, 189 Ga. 458 (6 S. E. 2d, 320); City of Albany v. Lippitt, 191 Ga. 756 (13 S. E. 2d, 807); Braddy v. Macon, 194 Ga. 871 (22 S. E. 2d, 801). Those cases, however, differ on their facts from the present case, and it would serve no useful purpose to point out again the facts there pleaded which took the case from under the rule. In the present case, the petition shows that the plaintiffs alone have been arrested, and if the ordinance under which they are being prosecuted is void, as claimed, its invalidity can be pleaded as an absolute defense in the pending criminal cases. This being true, they have an adequate remedy at law, and equity has no jurisdiction to interfere.

3. A threat to arrest the plaintiffs and their employees for future violations of the alleged unconstitutional ordinance, being a mere apprehension of injury to person or property rights, will not authorize the grant of an injunction. Candler v. Atlanta, 178 Ga. 661 (174 S. E. 129); West v. Chastain, 186 Ga. 667 (198 S. E. 736); Wallace v. Atlanta, 200 Ga. 749 (38 S. E. 2d, 596); Paulk v. Sycamore, 104 Ga. 24 (30 S. E. 417, 41 L. R. A. 772, 69 Am. St. R. 128).

4. “Where a court of equity has not jurisdiction, it will not assume jurisdiction for the purpose of inquiring into the constitutionality of a. *516 legislative act or the validity of a municipal ordinance.” City of Atlanta v. Universal Film Exchanges, supra.

No. 16410. November 17, 1948.

5. Since the petition stated no cause of action and should have been dismissed on demurrer, all further proceedings in the case were nugatory.

Judgment reversed.

All the Justices concur. *517 Reese, Bennet & Gilbert and Nightingale & Biles, for plaintiffs in error. A. A. Nathan and Ckilvin B. Oliver, contra.