Atlantic Ice & Coal Corp. v. Town of Decatur

Hines, J.

The, Atlantic Ice & Coal Corporation filed its petition for mandamus against the Town of Decatur and certain of its officials, to compel them to issue to it a permit to erect an ice plant upon certain premises in said town. This company, in its petition for mandamus, alleged that it had acquired, for the purpose of constructing its plant, a lease of said premises for the term of forty years; and that the effect of the action of the defendants in refusing to grant said permit, after petitioner had applied therefor and had fully complied with all the requirements of the only ordinance of the town in force when it made its application and when the permit was refused, and after it had thus become the mandatory duty of the defendants to issue such permit, was “to deprive petitioner of its valuable property rights in said premises, effectually destroying the value thereof.” In their answer the defendants denied that the petitioner had acquired said lease, and that the effect of their action in declining said permit was to deprive the company of its valuable property rights in said premises and to effectually destroy the value thereof. On the trial of the case the plaintiff did not offer any evidence to prove the fact of said lease, and of any destruction or diminution of the value of its property rights in said premises as the result of the refusal of the defendants to issue said permit. The court directed a verdict for the defendants, who insist that this action of the court was demanded, in view of the failure of the petitioner to prove the above allegations, regardless of any other errors which the court below may have committed in directing said verdict.

There are two essential requisites of a valid application for mandamus to enforce a right, to wit: the legal duty imposed on the defendants to do the thing they are asked to do, and a pecuniary loss to the plaintiff, for which he can not be compensated in damages. People v. Masonic Benev. Asso., 98 Ill. 635; Hatch v. City Bank, 1 Rob. (La.) 470; State v. St. Louis Paint Mfg. Co., 21 Mo. App. 526; Payne v. Perkerson, 56 Ga. 672; 26 Cyc. 443. In the case at bar, the petitioner having alleged that it had procured a lease of certain premises on which to erect its ice plant, and that the value of its leasehold would be destroyed by the refusal of the municipal authorities to grant the permit for that purpose, it was incumbent upon petitioner to establish these essential allegations of its petition. Without proof of these essential allegations, a verdict in favor of the plaintiff would not have been supported by the evidence. Besides, where one seeks a mandamus to compel the issuance of a permit to erect a building on a certain lot, he must show his right to build there in order to show that the petition is bona fide and founded upon substantial right. Bostock v. Sams, 95 Md. 400 (52 Atl. 665, 59 L. R. A. 282, 93 Am. St. R. 394). For failure to make proof of these essential allegations of its petition for mandamus, the plaintiff did not make a ease which entitled it to a mandamus.

In view of the above ruling, it becomes unnecessary to consider other errors alleged to have been committed by the court in the trial of this cause; and to decide the other very important questions raised in this record.

But, as we are affirming the judgment of the lower court on the ground that the plaintiff did not make out a prima facie case, we direct that the plaintiff be permitted to vacate the verdict and judgment against it and to substitute in lieu thereof a judgment of nonsuit, to the end that it may not be precluded by the former judgment. Zipperer v. Savannah, 128 Ga. 135 (57 S. E. 311); Equitable Mfg. Co. v. Davis, 130 Ga. 67 (60 S. E. 262); Williams v. Perry, 136 Ga. 453 (71 S. E. 886).

Judgment affirmed, with direction.

All the Justices concur, except Gilbert, J., disqualified, and