Winchester v. City of Gainesville

Supreme Court of Georgia

Winchester v. City of Gainesville

17 S.E.2d 66, 193 Ga. 33, 1941 Ga. LEXIS 571

CourtSupreme Court of Georgia

DecidedOctober 15, 1941

Docket13909.

StatusPublished

Cited by4 cases

This text of 17 S.E.2d 66 (Winchester v. City of Gainesville) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Winchester v. City of Gainesville, 17 S.E.2d 66, 193 Ga. 33, 1941 Ga. LEXIS 571 (Ga. 1941).

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Opinion

Duckworth, Justice.

The petition assails an ordinance of the City of Gainesville which regulates the operation of barber-shops, fixing hours for opening and closing, and minimum prices to be charged for services. While extensive averments are made as to the injury which petitioners have sustained and will sustain as a result of the ordinance, the only specific acts upon the part of the municipality to enforce the provisions of the ordinance are that copies of charges have repeatedly been given petitioners, directing them to appear in the municipal court and stand trial under the penal provisions of the ordinance, and that petitioners have been fold that additional criminal charges will be made for each violation of the ordinance. The only assignment of error is upon the judgment sustaining a general demurrer and dismissing the petition. Held, that the judgment is sustained by the general rule, that equity will neither aid nor interfere with criminal prosecutions. Code, § 55-102. The following decisions state and restate this rule, and further discussion of them as related to the instant ease is not deemed necessary: Phillips v. Stone Mountain, 61 Ga. 386; Mayor &c. of Shellman v. Saxon, 134 Ga. 29 (67 S. E. 438, 27 L. R. A. (N. S.) 452); Starnes v. Atlanta, 139 Ga. 531 (77 S. E. 381); Corley v. Atlanta, 181 Ga. 381 (182 S. E. 177); Powell v. Hartsfield, 190 Ga. 839 (11 S. E. 2d, 33); City of Atlanta v. Miller, 191 Ga. 767 (13 S. E. 2d, 814), and cit. This case does not come within the rule applied in Great Atlantic & Pacific Tea Co. v. Columbus, 189 Ga. 458 (6 S. E. 2d, 320), and City of Albany v. Lippitt, 191 Ga. 756 (13 S. E. 2d, 807), where the petitioners were not being prosecuted; and Walker v. Carrollton, 187 Ga. 237 (200 S. E. 268), where the majority of this court construed the allegations to mean that by frequent “raids and searches” of petitioner’s premises, property was being injured in addition to the criminal prosecutions complained of.

Judgment affirmed.

All the Justices concur, except Atkinson, P. J., who dissents.

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Duckworth, Justice.

The petition assails an ordinance of the City of Gainesville which regulates the operation of barber-shops, fixing hours for opening and closing, and minimum prices to be charged for services. While extensive averments are made as to the injury which petitioners have sustained and will sustain as a result of the ordinance, the only specific acts upon the part of the municipality to enforce the provisions of the ordinance are that copies of charges have repeatedly been given petitioners, directing them to appear in the municipal court and stand trial under the penal provisions of the ordinance, and that petitioners have been fold that additional criminal charges will be made for each violation of the ordinance. The only assignment of error is upon the judgment sustaining a general demurrer and dismissing the petition. Held, that the judgment is sustained by the general rule, that equity will neither aid nor interfere with criminal prosecutions. Code, § 55-102. The following decisions state and restate this rule, and further discussion of them as related to the instant ease is not deemed necessary: Phillips v. Stone Mountain, 61 Ga. 386; Mayor &c. of Shellman v. Saxon, 134 Ga. 29 (67 S. E. 438, 27 L. R. A. (N. S.) 452); Starnes v. Atlanta, 139 Ga. 531 (77 S. E. 381); Corley v. Atlanta, 181 Ga. 381 (182 S. E. 177); Powell v. Hartsfield, 190 Ga. 839 (11 S. E. 2d, 33); City of Atlanta v. Miller, 191 Ga. 767 (13 S. E. 2d, 814), and cit. This case does not come within the rule applied in Great Atlantic & Pacific Tea Co. v. Columbus, 189 Ga. 458 (6 S. E. 2d, 320), and City of Albany v. Lippitt, 191 Ga. 756 (13 S. E. 2d, 807), where the petitioners were not being prosecuted; and Walker v. Carrollton, 187 Ga. 237 (200 S. E. 268), where the majority of this court construed the allegations to mean that by frequent “raids and searches” of petitioner’s premises, property was being injured in addition to the criminal prosecutions complained of.

Judgment affirmed.

All the Justices concur, except Atkinson, P. J., who dissents.

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17 S.E.2d 66, 193 Ga. 33, 1941 Ga. LEXIS 571, Counsel Stack Legal Research, https://law.counselstack.com/opinion/winchester-v-city-of-gainesville-ga-1941.

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