1. Where a municipal charter authorizes the levy of a tax execution to be contested by affidavit of illegality, the defendant in execution has an adequate remedy at law and, without more, equity will not intervene to contest its validity.
2. Equity will not intervene to enjoin arrests where the prosecutions do not illegally threaten irreparable injury or destruction to property.
3. In construing rulings on demurrer, this court cannot look beyond the pleadings, nor can a court of equity assume jurisdiction where it has none.
No. 17405. MARCH 12, 1951.
John W. Peck Jr. filed a petition for injunction against the City of Eatonton. He alleged: He was the owner and operator of a picture show. The city had by ordinance levied a special tax on theatres of 2 cents per ticket up to 25 cents, 3 cents per ticket from 25 cents to 50 cents, and 4 cents per ticket above 50 cents. It further provided for a monthly report showing the number and price class of each ticket sold, and required a remittance therefor. On October 10, 1950, he filed the report required for September, 1950, which showed the amount of tax to be $314.67. No payment of the tax was made, and on October 14, 1950, the city made two police cases against him and notified him that other cases would be made unless the tax was paid. On the same date an execution for the amount of tax was issued, and on October 25, 1950, the execution was levied upon a projector used in the theatre.
The ordinance above referred to included also a license tax on virtually every type of business activity, with a specific tax, though in various amounts, assessed against each business. It also included a one-cent tax on each bottled drink sold. The ordinance made provision for punishment for a violation thereof.
Attached to the petition was a list of other businesses and amounts collected therefor under the ordinance, showing a total of $10,821.25. It was then asserted that under the ordinance the petitioner would have to pay 4/10ths of the total amount paid by all other businesses in the city.
The petition alleged that the ordinance was unreasonable, arbitrary, and discriminatory, and a denial of the equal-protection clause of the Federal and State Constitutions. It prayed that the sale of its property under levy and the prosecutions be enjoined.
A general demurrer by the city was overruled, and upon the hearing an interlocutory injunction was granted. Exceptions are to these rulings.
ATKINSON, Presiding Justice. (After stating the foregoing facts.)
1. The petitioner sought to have the ordinance declared void, and the prosecutions enjoined. By an amendment to the charter of the City of Eatonton (Ga. L. 1943, p. 1406), disputed tax executions may be contested by affidavit of illegality. This adequate and complete remedy at law to contest the validity of the ordinance being available, the intervention of equity would not be authorized. Code, § 37-120; City of Atlanta v. Jacobs, 125 Ga. 523 ( 54 S.E. 534); Social Circle Cotton Mill Co. v. City of Social Circle, 163 Ga. 465 ( 136 S.E. 432); Scott v. Mayor c. of Mount Airy, 186 Ga. 652 ( 198 S.E. 693).
2. As to enjoining the city from arresting petitioner, the petition alleges that two cases have been made against him and he has been notified that others will be made. This is no ground for equitable jurisdiction. Code, § 55-102; City of Atlanta v. Universal Film Exchanges, 201 Ga. 463 (1) ( 139 S.E.2d 882), and citations; City of Brunswick v. Anderson, 204 Ga. 515 (3), ( 50 S.E.2d 337), and citations. The allegations here are not within the requirements to meet the rule for granting an injunction to enjoin a criminal prosecution that illegally threatens irreparable injury or destruction to property, as in Great Atlantic Pacific Tea Co. v. City of Columbus, 189 Ga. 458 ( 6 S.E.2d 320); City of Albany v. Lippitt, 191 Ga. 756 ( 13 S.E.2d 807); Chandler v. City of Tifton, 206 Ga. 43, (4) ( 55 S.E.2d 568), and similar cases.
3. The bill of exceptions recites that the City of Eatonton joined in requesting "that the court assume equitable jurisdiction of all justiciable questions involved, and make a final determination of the validity of the municipal ordinance," and it is insisted that this would authorize the grant of equitable relief. In determining whether the trial court erred in ruling on a general demurrer to an amended petition, this court cannot look beyond the petition. Constitution Publishing Co. v. Stegall, 97 Ga. 405 ( 24 S.E. 33); Augusta Savannah R. Co. v. Lark, 97 Ga. 800, ( 25 S.E. 175). And where a court of equity has no jurisdiction, it will not assume it to inquire into the constitutionality of a legislative act or municipal ordinance. City of Douglas v. South Georgia Grocery Co., 178 Ga. 657 (5), ( 174 S.E. 127); City of Atlanta v. Universal Film Exchanges, 201 Ga. 463 (2) (supra); City of Brunswick v. Anderson, 204 Ga. 515 (4) (supra).
Accordingly, the trial court erred in overruling the general demurrer to the petition. All further proceedings were nugatory.
Judgment reversed. All the Justices concur.