1. The act of 1939 (Ga. L. 1939, p. 245) which, under authority of the constitutional amendment proposed by the act of 1937 (Ga. L. 1937, p. 1135), ratified by the people on June 8, 1937, and applicable to Richmond County, authorizes the county authorities to adopt zoning ordinances for stated purposes, does not grant authority to control the use to which a particular building may be devoted, and the ordinance which sought to prohibit the operation of a grocery store in zoned territory was in that respect ultra vires and invalid when tested by the act of 1939, supra.
2. The petition, seeking to enjoin the operation of a grocery store in a building converted from a grist mill, as being in violation of an ordinance *Page 40 zoning the territory in which the grocery store was located, but which ordinance was without legal authority and invalid in so far as it sought to control the use to which a building in the zoned territory may be devoted, did not set forth a cause of action for the injunctive relief prayed.
No. 15994. NOVEMBER 13, 1947. Richmond County, Georgia, filed in the Superior Court of that county a petition against M. B. Lanier, alleging the following: Under the act of 1939 (Ga. L. 1939, p. 245), the petitioner was authorized to pass certain zoning ordinances restricting the character of business that might be done in Richmond County. In pursuance of the authority vested in it, the petitioner, on March 4, 1946, by its proper Board of Commissioners of Roads and Revenues, enacted a zoning ordinance, a copy of which was attached to the petition as Exhibit "A" and made a part thereof. The ordinance recited the following: "An ordinance by the Board of County Commissioners of Roads and Revenues of Richmond County, Georgia, under and by virtue of an act of the General Assembly of Georgia approved March 24, 1939 (Acts 1939, page 245 et seq.), to zone the territory to be embraced within said zoning restrictions as follows: [Then follows a description of the territory to be zoned and a statement of the purpose of the ordinance.]" The ordinance then provided as follows: "Section 1. Be it ordained by the Board of County Commissioners of Roads and Revenues of Richmond County, under and by virtue of the provisions of the act of the General Assembly of Georgia approved March 24, 1939 (Acts 1939, pages 245 et seq.), that from and after the passage of this ordinance there shall be and is hereby zoned the territory herein embraced as follows: To extend seven hundred (700) feet distant from the center line of the Washington Road, and on both sides thereof, in Richmond County, Georgia, beginning at the bridge at Lake Olmstead to the Columbia-Richmond County line at or near Martinez, Georgia, against the construction, and it shall be unlawful for any person, firm or corporation to construct, erect, maintain or operate any lunch room, restaurant, garages of any type, gasoline and oil filling or service stations, grocery stores, drug store or stores, sanitarium, hospital, infirmary, or any other type of commercial *Page 41 establishments to be used for any commercial purposes whatsoever within said territory, grocery stores, garage and filling stations now in actual operation in said territory being hereby exempted; provided, however, no other type of commercial business whatsoever other than the same type actually in operation at the time of the adoption of this ordinance within said territory shall be operated in said territory, even in or on premises now actually in operation as grocery stores. Section 2. Be it further ordained by the authority aforesaid that any person who shall construct any such building herein forbidden or who shall use any such building hereafter constructed for the purposes forbidden herein, and any person who shall violate any provision of this ordinance, shall be guilty of a misdemeanor as provided for under Section 8 of said act and be punished as such as provided by general law. Section 3. Be it further ordained that each section of this ordinance and every part of each section are hereby declared to be independent sections and parts of sections and the holding of any section or part of section or the restriction of any uses herein to be invalid by any court, shall not affect the other sections or parts of such sections or restrictions of uses, and it is declared that the other sections and parts of sections not so held invalid would have been ordained and adopted regardless of any section or part of any section being held invalid. Section 4. All ordinances and parts of ordinances in conflict herewith are hereby repealed; provided, however, this ordinance shall not repeal any ordinance or part of ordinance heretofore adopted that may have imposed other and additional restrictions within any part of the area herein zoned."
The petition alleged that the defendant owned a certain described lot and parcel of land on the north side of the said Washington Road mentioned in the said ordinance, being on the other side of the Perrin School, and within the zoned territory, and that since the adoption of the said ordinance the defendant has converted a grist mill into a grocery store and is now operating it in violation of the terms of the said zoning ordinance, all of which is contrary to law. The petitioner brings the proceeding in equity to enjoin the defendant from further violation of the said zoning ordinance, and has no adequate remedy at law whereby it can enforce the said zoning ordinance. The prayers were for a rule nisi and for temporary and permanent injunction and process. *Page 42
The defendant demurred to the petition on grounds raising constitutional questions, all of which have been expressly abandoned in the brief of counsel for the defendant, and also demurred on the following grounds: 1. The allegations of the petition do not set forth any cause of action against the defendant. 2. The court does not have jurisdiction to restrain the alleged violation of a penal statute or ordinance or to take part in the administration of criminal law. 3. The petitioner has an adequate and complete remedy at law by resort to the criminal courts, and the court here is without jurisdiction or authority to enjoin, through the exercise of its equity powers, the alleged violation of a statute or ordinance for which a penalty is provided. 4. No right of action exists in favor of Richmond County against the defendant, and it is without legal authority to obtain the equitable relief sought or to exercise or enforce in this action any civil remedy against the defendant. 5. The enabling act of 1939 (Ga. L. 1939, p. 245) does not set up or provide any reasonable or proper standards by which the territory in question might be zoned and business therein regulated, but confers upon the governing bodies of the counties to which it applies the unlimited and uncontrolled power to arbitrarily and discriminately prohibit the conduct of any and all lawful business in such territory.
The court overruled all grounds of demurrer, and the exception here is to that judgment. An amendment to the Constitution of 1877, proposed by an act of the General Assembly (Ga. L. 1937, p. 1135), and ratified by the people on June 8, 1937, provides as follows: "The General Assembly of the State shall have the authority to grant to the governing authorities of any city or county in this State having a population of 1000 or more, according to the Federal census of 1930 or any such future census, the authority to pass zoning and planning laws whereby such cities or counties may be zoned or districted for various uses and other or different uses prohibited therein, and to regulate the use for which said zones or districts may be set apart and to regulate the plans for development and improvement of real estate therein." *Page 43
In pursuance of this constitutional amendment, the General Assembly passed an enabling act in 1939 (Ga. L. 1939, p. 245), which is applicable to Richmond County which, with a population of 72,990 according to the Federal census of 1930, of which this court takes judicial notice, meets the population test named in the act. The pertinent provisions of the act are as follows: Section 2 provides: "That said County Commissioners shall be, and are, hereby authorized to make all necessary rules and regulations in reference to the construction of any buildings, additions and repairs to old buildings, and in reference to chimneys, flues or heating apparatus, and provides a distance that any new building or addition to an old building shall be from any public highway within said limits." Section 4 provides: "That said Commissioners shall have the power to zone any territory within said limits outside of such incorporated village, town or city as to the territory in which any particular class of building or buildings shall be built, that is, as to residences, stores, filling stations, tourist cabins, manufacturing plants, places of business for the sale of beer or intoxicating liquors, and each and every other sort of building." It will be observed that, while the act of 1939 grants authority to adopt ordinances as to the construction of buildings and additions or repairs thereto and as to their location with respect to any public highway within the zoned area, and to determine the territory in the zoned area within which any particular class of building may be erected, it does not purport to grant authority to control the use to which any particular building may be devoted. It is clear, therefore, that, in so far as the ordinance seeks by section 1 to make it unlawful for any person to operate a grocery store and other named places of business within the zoned territory, it is ultra vires and invalid when tested by the act of 1939, supra.
It follows, therefore, that no right to injunctive relief is shown by the petition, and the court erred in overruling the defendant's ground of general demurrer that no cause of action was set forth against him. In this view it is unnecessary to determine whether or not, if the ordinance here involved was in full compliance with the act of 1939, supra, the county would be authorized to maintain the present action.
Judgment reversed. All the Justices concur, except Wyatt, J.,who took no part in the consideration or decision of this case. *Page 44