Wallace v. City of Atlanta, 38 S.E.2d 596

Wallace v. City of Atlanta

38 S.E.2d 596 | Ga. | 1946

A petition for injunction based on a mere apprehension or speculation that an injury will occur, with nothing to show that the plaintiff has been or will in fact be injured, is properly dismissed on general demurrer.

No. 15473. JUNE 4, 1946. J. M. Wallace, as citizen and taxpayer, filed an equitable petition to enjoin the City of Atlanta from enforcing the provisions of an act of the General Assembly approved January 31, 1946 (Ga. L. 1946, p. ), amending the charter of the City of Atlanta, the amendatory act being attacked by the plaintiff as unconstitutional and void. His petition, before amendment, alleged that the act was passed in violation of art. 3, sec. 7, par. 15 of the Constitution, pertaining to the notice required before the introduction and passage of local legislation. No allegation of injury to the plaintiff was made except that the amendatory act, "if put into effect, will cost the taxpayers of said city the approximate sum of $75,000, thus increasing the tax burden of petitioners and all others similarly situated." The prayers were for process, rule nisi to the defendant, City of Atlanta, and for temporary and permanent injunction. By three amendments to his original petition, the plaintiff contended that the amending act is void as being in violation of other stated constitutional provisions. The amendments point out that the amendatory act permits the granting of certain franchises and the leasing of certain city property. The trial court sustained the general demurrer of the defendant to the plaintiff's petition, as amended, and the exception is to that judgment. There *750 is no allegation in the plaintiff's petition that the rate of taxation in the City of Atlanta has been increased by reason of the act amending the charter of the city, nor is there any allegation that the rate of taxation will be increased by such act. The plaintiff's petition does not show either present injury, or any action by the defendant which might result in injury to him. Nor are there any allegations showing a probable loss of public funds or property.

In Rounsaville v. Kohlheim, 68 Ga. 668 (45 Am. R. 505), it was held: "Mere allegations of speculative or contingent injuries, with nothing to show that they will in fact happen, do not require an injunction." See also, in this connection:Pittard v. Summerour, 181 Ga. 350 (182 S.E. 20);Christokas v. West, 181 Ga. 513 (182 S.E. 895). In Reid v. Eatonton, 80 Ga. 756 (6 S.E. 602), it was held: "It does not appear that complaint is or will be hurt by the action he seeks to prevent. It follows that he cannot maintain the bill."

It is not charged that the defendant, City of Atlanta, has done any act to increase the amount of taxes to be paid by the plaintiff, and the allegations of his petition come within the rule that, "Equity will not entertain a petition to enjoin the enforcement of an alleged unconstitutional law, where the complainant does not show that such enforcement is attempted against his personal or property rights." (Italics ours.) Plumb v. Christie, 103 Ga. 686 (30 S.E. 759, 42 L.R.A. 181). In this connection, see also Hazleton v. Atlanta, 147 Ga. 208 (4) (93 S.E. 202).

As applied to an act for the levy and collection of taxes, it was held in Standard Cigar Co. v. Doyal, 175 Ga. 859 (166 S.E. 434), as follows: "Until some act has been done to the injury of the person or persons bringing the suit, however, no right of action exists." In Stegall v. Southwest Ga. HousingAuthority, 197 Ga. 571, 583 (30 S.E.2d 196), it was stated: "No person will be heard to question the constitutionality of a statute, except as it may infringe upon his personal or property rights. . . An injunction will not be granted on mere apprehension. A party suing as a taxpayer, in order to obtain such relief, must show that he is in danger of injury through loss of public funds or property."

In this instance the allegations of the plaintiff's petition do not show either present injury, or such action by the defendant as *751 might result in injury. The plaintiff's case rests purely on speculation or apprehension that an injury may occur, and therefore he fails to present a cause for injunctive relief.

Judgment affirmed. All the Justices concur.