11 S.E.2d 30 | Ga. | 1940
The allegations of plaintiffs' petition do not make out such a case as would take it out of the general rule that equitable powers may not be used to restrain criminal prosecution in enforcement of a municipal ordinance alleged to be invalid. Code, § 55-102.
1. It is seen from the foregoing statements from plaintiffs' petition that we have presented again one of the vexing problems arising from the frequency with which courts of equity are asked to restrain criminal prosecutions, and determine thereby the validity of municipal ordinances. It may as well be stated at the outset, as was done by Mr. Justice Bell in Corley v. Atlanta,
Also, in Walnut Transfer Storage Co. v. Harrison,
The cases which have usually been sustained in equity have been those which the court viewed as stating sufficient aggravation and improper use — we might say perversion — of the criminal process; that is, the result was more than mere inconvenience to parties required to answer and defend the prosecution, or extended to destruction of property or otherwise worked irreparable injury. Thus equity will take hold only to correct the mischief of misuse of the criminal prosecution resulting in irreparable injury. Typical of these is the recent case of Great A. P. Tea Co. v. Columbus,
Now examining the petition in the light of the principles heretofore decided by the court in the many cases dealing with the subject, only a few of which have been set forth above, let us see if a case is made for the exercise of equitable jurisdiction. The *847
plaintiffs allege arrests and threats of continued arrests; but we have seen that this is not sufficient. They allege threat of issuance and levy of executions, and that they may not avail themselves of the remedy afforded by affidavit of illegality; but mere apprehension of injury is not sufficient. Bowden v.Georgia Public-Service Commission,
Judgment affirmed. All the Justices concur, except Atkinson,P. J., who dissents. *848