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CANTRELL v. MAYOR & COUNCIL OF MT. AIRY et al.; and vice versa.
21901.
21902.
Injunction, etc. Habersham Superior Court. Before Judge Smith.
MOBLEY, Justice.
1. (a) Whatever may be the scope and nature of the right of a police officer of one municipality in this State to pursue a person into another municipality of this State and there arrest him for violations of ordinances of the first municipality and statutes of this State, that right to arrest is not a property right in the sense necessary to give equity jurisdiction to issue an injunction to prevent alleged irreparable injury to the right caused by the arrest and planned prosecution of that officer for violation of the automobile speed and safe driving ordinances of the town into which he chased the offender and where he arrested him.
(b) The plaintiff has an adequate remedy at law in the criminal trial and appellate process of the Town of Mount Airy and the State of Georgia.
2. The judgment excepted to in the main bill of exceptions being affirmed leaving nothing to be tried below, the cross-bill of exceptions is dismissed.
The exception is to the sustaining of defendants' general demurrer to plaintiff's amended petition and the dismissal thereof. Omitting details and particulars, the allegations of the amended petition which are material to a decision of the question presented are as follows: Plaintiff is a police officer of the City of Cornelia and defendants are the mayor and certain councilmen and police officers of the Town of Mount Airy. On a certain night, plaintiff was on duty as a police officer of the City of Cornelia and observed a certain person driving an automobile at an excessive rate of speed, spinning the vehicle's wheels, and skidding around street corners within the corporate limits of Cornelia in violation of ordinances of Cornelia and laws of Georgia. In performance of his duty as a police officer of Cornelia, plaintiff, driving a police car of the City of Cornelia with red blinking light and siren in operation, gave chase in an effort to arrest the violator, chasing him along U. S. Highway 123 out of the City of Cornelia and into the corporate limits of the adjoining Town of Mount Airy, where he finally stopped and arrested him. Before plaintiff left the scene of the arrest two of the defendants, police officers of the Town of Mount Airy, arrived and arrested both plaintiff and the person plaintiff had chased and arrested. Plaintiff was taken to the city hall of the Town of Mount Airy where he was charged with speeding and reckless driving in violation of certain municipal ordinances of Mount Airy. Plaintiff made bond and was scheduled to be tried on the charges on a certain date by the town police court, presided over by the defendant Mayor of Mount Airy.
The petition further alleged: The ordinances of Mount Airy under which plaintiff is to be tried are, because of certain alleged particulars, too vague and indefinite to be enforced, and also are void because in conflict with and not pursuant to certain acts of the General Assembly. The mayor, who presides at the police court, has instructed police officers of Mount Airy to arrest any police officer of the City of Cornelia who pursues law violators into Mount Airy and the mayor has prejudged plaintiff's case, having stated that plaintiff is guilty as charged. Under the charter and ordinances of Mount Airy, plaintiff's right of appeal from a conviction in the Police Court of Mount Airy is to the Mayor and Council of Mount Airy and certain council men have stated that they intend to convict the plaintiff. Because the mayor and at least two of the councilmen are related within the sixth degree of consanguinity or affinity to the prosecutor in the case against plaintiff, and another councilman plead guilty to a charge of burglary and served two years in the penitentiary and has not been pardoned therefor, these persons are disqualified from presiding at any tria1 of the plaintiff, or appeal by plaintiff from a conviction, on the charges against him, and without these persons there is, under a certain ordinance of Mount Airy, no legal quorum of the mayor and council to try any appeal by plaintiff from a conviction in the case. The conduct of the defendants threatens the orderly enforcement of the laws of Georgia and penalizes plaintiff for the diligent performance of his duties as a police officer. Plaintiff has the adequate remedy at law to prevent the unlawful enforcement of the town ordinances and it is also necessary for equity to take jurisdiction to prevent a multiplicity of prosecutions and suits. The prayers are for process, rule nisi, temporary restraining order and temporary and permanent injunction against defendants to prevent them from trying plaintiff on the pending charges, forfeiting plaintiff's bond, arresting plaintiff or any other police officer of the City of Cornelia, or any other peace officer, while plaintiff or such other officers are pursuing law violators or otherwise performing their duties as peace officers in a lawful manner under the laws of the State of Georgia, and for other and further relief. The trial judge issued a temporary restraining order as prayed for. After a hearing on defendants' general demurrer he sustained the same and dismissed plaintiff's petition.
1. (a) "Equity will take no part in the administration of the criminal law. It will neither aid criminal courts in the exercise of their jurisdiction, nor will it restrain or obstruct them." Code 55-102; Gault v. Wallis, 53 Ga. 675 (4); Phillips v. Mayor &c. of Stone Mountain, 61 Ga. 386; Garrison v. City of Atlanta, 68 Ga. 64; Pope v. Mayor &c. of Savannah, 74 Ga. 365; Landers v. Georgia Public Service Commission, 217 Ga. 804, 813 (125 SE2d 495). The rule stated in Code 55-102 really admits of no exception. Jewel Tea Co. v. City Council of Augusta, 183 Ga. 817, 818 (190 SE 1); City of Atlanta v. Universal Film Exchanges, 201 Ga. 463, 470 (39 SE2d 882). So-called "exceptions" to the rule are those cases in which equity takes jurisdiction for the purpose of, preventing irreparable injury to property or property rights, the petitioner having no remedy at law which would provide adequate protection therefor. Those cases will not be viewed as exceptions when one realizes that equity takes jurisdiction in them not because of the criminal feature of the case, but despite it, acting not for the purpose of administering the criminal law but for the purpose of preventing irreparable injury to property or property rights, ignoring the fact that one result of its assumption of jurisdiction may be to oust the jurisdiction of a criminal court. Jewell Tea Co. v. City Council of Augusta, 183 Ga. 817, 818, supra. For full-bench decisions of this court in which equity has been held to have jurisdiction to prevent irreparable injury to property or property rights, the petitioner having no adequate remedy at law, see: City of Atlanta v. Gate City Gas Light Co., 71 Ga. 106, 107 (5); Cutsinger v. City of Atlanta, 142 Ga. 555, 556 (4, 5) (83 SE 263, LRA 1915B 1907, AC 1916C 280); Baldwin v. City of Atlanta, 147 Ga. 28 (1, 2) (92 SE 630); Brown v. City of Thomasville, 156 Ga. 260 (1) (118 SE 854); Great A. & P. Tea Co. v. City of Columbus, 189 Ga. 458 (1) (6 SE2d 320); Braddy v. City of Macon, 194 Ga. 871 (1) (22 SE2d 801); New Mission Baptist Church v. City of Atlanta, 200 Ga. 518, 519 (3) (37 SE2d 377); Moultrie Milk Shed, Inc. v. City of Cairo, 206 Ga. 348 (1) (57 SE2d 199).
The only right alleged by the plaintiff in this case is his right as a municipal police officer of the City of Cornelia, Georgia, and as a citizen of this State, to pursue a person into the Town of Mount Airy, Georgia, and there arrest him for violations of ordinances of the City of Cornelia and statutes of the State of Georgia. Whatever may be the scope and nature of his right to do so, that right is not a property right in the sense necessary to give equity jurisdiction in this case. See as to the right of a municipal officer to arrest: Reed v. State, 195 Ga. 842, 843 (4) (25 SE2d 692); Earl v. State, 124 Ga. 28, 29 (2) (52 SE 78); Shirley v. City of College Park, 102 Ga. App. 10 (2) (115 SE2d 469). See as to the failure to allege a property right: Hunter v. City of Atlanta, 212 Ga. 179 (1) (91 SE2d 338). While in City of Atlanta v. Gate City Gas Light Co., 71 Ga. 106, 107 (5), supra, equity ignored the criminal feature of the case and took jurisdiction to prevent irreparable injury to what the court called "civil rights," a reading of that case reveals that the civil rights there under consideration were rights to the enjoyment of property.
(b) Further, plaintiff is not without an adequate remedy at law. Should he be convicted by the Police Court of Mount Airy, and should the Mayor & Council of Mount Airy affirm that conviction, he may apply for a writ of certiorari to the Superior Court of Habersham County. Phillips v. Mayor &c. of Stone Mountain, 61 Ga. 386, 388, supra; Mayor &c. of Shellman v. Saxon, 134 Ga. 29 (3a) (67 SE 438, 27 LRA (NS) 452). The trial court did not err in sustaining the defendants' demurrer and dismissing plaintiff's petition.
2. The judgment excepted to in the main bill of exceptions being affirmed leaving nothing to be tried below, the cross-bill of exceptions is hereby dismissed. Code Ann. 6-901.
DUCKWORTH, Chief Justice, dissenting. The second paragraph of the Constitution (Code Ann. 2-102; Const. of 1945) declares that "the paramount duty of government" is the protection of persons and property which it obviously must do through officers including this policeman. In pursuing for the purpose of arresting a person who has committed a crime against the person or property of another within the City of Cornelia and is fleeing to escape punishment for his crime, the petitioner, a policeman of Cornelia, is actually conforming to the above provision of the Constitution. To allow the officers of Mount Airy to prevent the sworn policeman of Cornelia from exceeding its speed limit while in hot pursuit of a speeding person who has committed a crime in Cornelia is to deny protection against crime and afford a fleeing criminal a guarantee of escape. A law that would sanction such would be unwise, and in the absence of law expressly allowing it this court should not so hold. Certainly Code 55-102 which provides that equity will take no part in the administration of the criminal law and will not aid nor interfere with the exercise of jurisdiction of criminal courts constitutes no authority for such a holding. And to construe Great A. & P. Tea Co. v. City of Columbus, 189 Ga. 458 (1) (6 SE2d 320); City of Albany v. Lippitt, 191 Ga. 756 (13 SE2d 807); and Moultrie Milk Shed, Inc. v. City of Cairo, 206 Ga. 348 (1) (57 SE2d 199), which dealt with property, to mean that protection of property and nothing else would allow equity to do so is to misconceive the basic fundamental principle controlling those decisions. See Code 37-120. That principle is that in all cases where there exist grounds for equitable relief it will be granted, notwithstanding that in the process criminal prosecutions are incidentally involved. In Thompson v. Talmadge, 201 Ga. 867, 871 (41 SE2d 883), while fully recognizing that equity had no jurisdiction to decide a purely political question or to review actions of the legislature taken in harmony with the Constitution, we said that the law was equally as well settled that "the judiciary is by the Constitution given the power and jurisdiction to adjudicate any and all justiciable questions presented to it in litigation, and that this jurisdiction of the courts is neither ousted nor impaired by the fact that there may be involved in such cases political questions, or actions by the General Assembly." The vital principle of law there declared is that courts will not shrink from adjudicating matters over which they have jurisdiction solely because involved therein are matters which standing alone are beyond their jurisdiction. As applied here that means that while equity will have nothing to do with administering criminal law per se as provided in Code
55-102, yet the mere fact that criminal charges are incidentally involved does not deprive equity of jurisdiction of matters lying plainly within its jurisdiction. The basis for equity jurisdiction is the actual and threatened prevention of this policeman from performing his official duties by arrests and threatened future arrests every time he pursues a fleeing criminal at a speed in excess of that fixed by Mount Airy. A plainer case of impending danger of preventing this officer from performing his duty to protect the people against criminals could hardly be made. It is this irreparable injury which equity is asked to prevent, and if criminal prosecutions are incidentally prevented thereby, this will neither "oust nor impair" equity's jurisdiction to grant the equitable relief sought.
The driver of an authorized emergency vehicle when responding to an emergency call, or " when in the pursuit of an actual or suspected violator of the law . . . may exercise the privileges set forth in this section." (Italics mine). Among the privileges set forth therein that may be exercised are: "proceed past a red or stop signal . . . but only after slowing down as may be necessary for safe operation," and "exceed the speed limits specified in this law so long as he does not endanger life or property." Code Ann. 68-1604 (Ga. L. 1953, Nov. Sess., pp. 556, 565). Code Ann. 68-1606 of the same title (see statute above) provides that this law shall be uniform throughout all political subdivisions and municipalities, and that "no local authority shall enact or enforce any ordinance, rule or regulation in conflict with the provisions of this law unless expressly authorized herein. Local authorities may, however, adopt additional traffic regulations which are not in conflict with the provisions of this law."
Thus is established an absolute bar to any law in Mount Airy that seeks to prevent this policeman of Cornelia from running its red lights, its stop signs and exceeding its speed limits when he is in pursuit of an actual or suspected violator of the law but places upon him the duty not to endanger persons or property. The law tells him he can do it; his oath of office demands it of him; but Mount Airy with the sanction of this court defies the law, disregards his right and duties and the safety of the people of Cornelia. This decision is an open invitation to criminals to flee from their crime through a municipality at a high speed, and the officers of that city will aid and abet them by stopping and arresting the officer who is pursuing them if he violates the city speed limit, although State law authorizes him to do so and forbids city interference. I would reverse the judgment.
Justice Candler concurs in this dissent.
Otis J. Bouwsma, Scott & Bouwsma, Walter R. Looney, contra.
Linton K. Crawford, Kimzey & Crawford, for plaintiff in error.
ARGUED JANUARY 15, 1963 -- DECIDED FEBRUARY 11, 1963.
Friday May 22 22:09 EDT


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