O.C.G.A. § 9-5-2 (2019)

Annotations

JUDICIAL DECISIONS Basis of section. - The general rule of this section is based upon the principle that equity is intended to supplement, and not usurp, the functions of courts of law, and that to sustain an action to restrain or relieve against proceedings for the punishment of offenses would constitute an invasion of the courts of law; and on the fact that the party has an adequate remedy at law by establishing as a defense to the prosecution that the person did not commit the act charged, or that the statute on which the prosecution is based is invalid, and in case of conviction, by taking an appeal. Hodges v. State Revenue Comm’n, 183 Ga. 832, 190 S.E. 36, 1937 Ga. LEXIS 435 (1937) (see O.C.G.A. § 9-5-2). This section applies to both criminal laws and quasi criminal proceedings under ordinances. Baldwin v. City of Atlanta, 147 Ga. 28, 92 S.E. 630, 1917 Ga. LEXIS 31 (1917); Town of Dexter v. Western Union Tel. Co., 150 Ga. 294, 103 S.E. 430, 1920 Ga. LEXIS 151 (1920) (see O.C.G.A. § 9-5-2). This section has been applied to municipal ordinances. Powell v. Hartsfield, 190 Ga. 839, 11 S.E.2d 33, 1940 Ga. LEXIS 591 (1940) (see O.C.G.A. § 9-5-2). Court of equity has no jurisdiction to enjoin prosecutions for criminal offenses. Sosebee v. City of Demorest, 182 Ga. 338, 185 S.E. 330, 1936 Ga. LEXIS 348 (1936); City of Atlanta v.

Miller, 191 Ga. 767, 13 S.E.2d 814, 1941 Ga. LEXIS 374 (1941). Court of equity will not enjoin commission of crime generally. American Legion v. Miller, 183 Ga. 754, 189 S.E. 837, 1937 Ga. LEXIS 406 (1937). The general rule is that courts exercising equity jurisdiction will not enjoin criminal prosecutions. Walnut Transf. & Storage Co. v. Harrison, 185 Ga. 720, 196 S.E. 432, 1938 Ga. LEXIS 514 (1938). The general rule is that an injunction will not issue to restrain a criminal prosecution. Jewel Tea Co. v. City of Cartersville, 185 Ga. 799, 196 S.E. 712, 1938 Ga. LEXIS 529 (1938); Walker v. City of Carrollton, 193 Ga. 894, 20 S.E.2d 600, 1942 Ga. LEXIS 520 (1942). Injunctions or orders in the nature of injunction are not granted by courts of equity to restrain proceedings in criminal matters. Ray v. City of Dalton, 191 Ga. 46, 11 S.E.2d 193, 1940 Ga. LEXIS 597 (1940). Courts of equity cannot interfere with administration of criminal laws. - Courts of equity have no jurisdiction to interfere with the administration of the criminal laws of the state by injunction or otherwise. Ray v. City of Dalton, 191 Ga. 46, 11 S.E.2d 193, 1940 Ga. LEXIS 597 (1940). Doctrine of laches is an equitable doctrine and may not result in interference in a criminal prosecution. Callahan v.

State, 179 Ga. App. 556, 347 S.E.2d 269, 1986 Ga. App. LEXIS 2645 (1986). Rule announced in this section is likewise applicable in quasi-criminal proceedings. City of Atlanta v. Universal Film Exch., Inc., 201 Ga. 463, 39 S.E.2d 882, 1946 Ga. LEXIS 488 (1946); Atlanta Veterans Transp., Inc. v. Jenkins, 203 Ga. 457, 47 S.E.2d 324, 1948 Ga. LEXIS 351 (1948); City of Brunswick v. Anderson, 204 Ga. 515, 50 S.E.2d 337, 1948 Ga. LEXIS 480 (1948) (see O.C.G.A. § 9-5-2). Rule of this section is applicable to prosecutions for violations of municipal ordinances, which are quasi criminal proceedings. Sosebee v. City of Demorest, 182 Ga. 338, 185 S.E. 330, 1936 Ga. LEXIS 348 (1936) (see O.C.G.A. § 9-5-2). The general rule, that a court of equity has no jurisdiction to enjoin prosecution of offenses, applies to prosecution under municipal ordinances quasi-criminal in their nature. City of Tifton v. Cooper, 206 Ga. 379, 57 S.E.2d 196, 1950 Ga. LEXIS 346 (1950). This rule applies in prosecutions for violations of municipal ordinances, which are punishable by fine or imprisonment. Mayor of Athens v. Co-op Cab Co., 207 Ga. 505, 62 S.E.2d 906, 1951 Ga. LEXIS 439 (1951). The rule that equity will take no part in the administration of the criminal law also applies in quasi-criminal proceedings, including prosecutions for violations of municipal ordinances, which are punishable by fine or imprisonment. Thomas v. Mayor of Savannah, 209 Ga. 866, 76 S.E.2d 796, 1953 Ga. LEXIS 446 (1953). Prosecutions for violations of municipal ordinances which are punishable by fine or imprisonment are quasi-criminal in nature and come within the above rule. Staub v. Mayor of Baxley, 211 Ga. 1, 83 S.E.2d 606, 1954 Ga. LEXIS 468 (1954). O.C.G.A. § 9-5-2 does not prevent courts from enjoining enforcement of taxation statutes tangentially related to a potential misdemeanor charge. Johnsen v. Collins, 875 F. Supp. 1571, 1994 U.S. Dist. LEXIS 20214 (S.D. Ga. 1994). Courts of equity will not prevent prosecutions for criminal offenses, whether prosecutions be violations of state statutes or municipal ordinances.

City Council v. Congdon, 171 Ga. 572, 156 S.E. 212, 1930 Ga. LEXIS 508 (1930). Except under exceptional circumstances. - Only under exceptional circumstances may equity powers be used to restrain criminal prosecutions, even though their defense may be burdensome and attended by inconvenience. Spur Distrib. Co. v. Mayor of Americus, 190 Ga. 842, 11 S.E.2d 30, 1940 Ga. LEXIS 590 (1940). Exception to the general rule exists where property rights are involved, and the process sought to be enforced tends to destroy the property rights of another. Wofford Oil Co. v. City of Boston, 170 Ga. 624, 154 S.E. 145, 1930 Ga. LEXIS 208 (1930). While it is true that equity will not take jurisdiction for the purpose of administering criminal law, it is just as well settled that equity will not fail to exercise its peculiar function, where it is manifest that substantial property rights are primarily and directly involved, merely because the protection of such property rights may incidentally require the control of criminal or quasi criminal prosecutions. Jewel Tea Co. v. City Council, 183 Ga. 817, 190 S.E. 1, 1937 Ga. LEXIS 421 (1937); Spur Distrib. Co. v. Mayor of Americus, 190 Ga. 842, 11 S.E.2d 30, 1940 Ga. LEXIS 590 (1940). Motel owner’s showing that the owner depended upon income from movie rentals in making the owner’s decision to purchase the owner’s motel and in sustaining the owner’s business would establish a sufficient threat to a property interest to permit an exception to the “no interference” rule. Majmundar v. Veline, 256 Ga. 8, 342 S.E.2d 682, 1986 Ga. LEXIS 682 (1986). Equity may intervene to prevent irreparable damage to property. - Exceptions to this general 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. Cantrell v. Mayor of Mt. Airy, 218 Ga. 646, 129 S.E.2d 910, 1963 Ga. LEXIS 287 (1963). In some cases, involving special facts, injunction may be granted against the

unlawful enforcement of municipal ordinances, although they are penal in character, for the protection of property or property rights or franchises against irreparable injury; as, for instance, where, under the guise of enforcing a penal ordinance, it is manifest that prosecutions and arrests are threatened for the sole purpose of unlawfully taking or destroying property, or preventing the exercise of a franchise granted by the state. McCullough Bros. v. City of Griffin, 181 Ga. 832, 184 S.E. 599, 1936 Ga. LEXIS 444 (1936); Sosebee v. City of Demorest, 182 Ga. 338, 185 S.E. 330, 1936 Ga. LEXIS 348 (1936); Walnut Transf. & Storage Co. v. Harrison, 185 Ga. 720, 196 S.E. 432, 1938 Ga. LEXIS 514 (1938); Spur Distrib. Co. v. Mayor of Americus, 190 Ga. 842, 11 S.E.2d 30, 1940 Ga. LEXIS 590 (1940). Equity will in a proper case, by injunction, prevent injury or destruction of property under exception to general rule that equity has no jurisdiction to enjoin prosecution under quasi-criminal municipal ordinance. City of Tifton v. Cooper, 206 Ga. 379, 57 S.E.2d 196, 1950 Ga. LEXIS 346 (1950). The general rule, as stated in this section, does not apply where a criminal prosecution illegally threatens irreparable injury or destruction of private property, and where the petitioner has no adequate remedy at law. In such cases, equity will restrain a criminal prosecution. Hunter v. City of Atlanta, 212 Ga. 179, 91 S.E.2d 338, 1956 Ga. LEXIS 297 (1956) (see O.C.G.A. § 9-5-2). Courts exercising equitable jurisdiction will not enjoin prosecutions under municipal ordinances, even where the ordinances are allegedly invalid and there are threats of arrest and multiplicity of prosecutions, unless it is shown that the threatened prosecutions are for the sole purpose of unlawfully taking or destroying property or the business of the plaintiff, or that they will in fact result in irreparable injury thereto, and unless the complaining party has no plain and adequate remedy at law which is as practical and efficient to the ends of justice and its prompt administration as its remedy in equity. Arnold v. Mathews, 226 Ga. 809, 177 S.E.2d 691, 1970 Ga. LEXIS 698 (1970). Deprivation of enjoyment of legitimate property rights. - A court of

equity will enjoin an unfounded prosecution for an alleged crime, and the threatened prosecution therefor, where the effect of such prosecution will injure or destroy the property of the person so prosecuted, or deprive the person of the legitimate enjoyment of the person’s property or property rights, or prevent the person from pursuing the person’s occupation or professions. City Council v. Congdon, 171 Ga. 572, 156 S.E. 212, 1930 Ga. LEXIS 508 (1930). When equity acts in cases involving property and crime, it ignores criminal feature and exercises its jurisdiction solely with reference to the property or property right affected. Jewel Tea Co. v. City of Cartersville, 185 Ga. 799, 196 S.E. 712, 1938 Ga. LEXIS 529 (1938). Exercises jurisdiction merely to protect property. - While it has been held that this rule does not apply where it is evident that criminal proceedings directly threaten private property, yet in such cases injunction was allowed not for the purpose of preventing criminal prosecutions as such, but for the protection of property. Powell v. Hartsfield, 190 Ga. 839, 11 S.E.2d 33, 1940 Ga. LEXIS 591 (1940). Statutes prohibiting nude and sexual conduct. - Night club had a sufficient property interest in its alcoholic beverage licenses to authorize the superior court to exercise its equity jurisdiction to consider the club’s challenge to enforcement of statutes prohibiting certain nude and sexual conduct on premises where alcoholic beverages are sold or dispensed for consumption on the premises. Harris v. Entertainment Sys., 259 Ga. 701, 386 S.E.2d 140, 1989 Ga. LEXIS 532 (1989). Equity is not special or favored forum for determining validity of municipal ordinances. City of Bainbridge v. Olan Mills, Inc., 207 Ga. 636, 63 S.E.2d 655, 1951 Ga. LEXIS 487 (1951). Court of equity will not inquire into validity or reasonableness of ordinance making penal an act for the doing of which prosecutions are threatened. City Council v. Congdon, 171 Ga. 572, 156 S.E. 212, 1930 Ga. LEXIS 508 (1930); Sosebee v. City of Demorest, 182 Ga. 338, 185 S.E.

330, 1936 Ga. LEXIS 348 (1936); City of Atlanta v. Miller, 191 Ga. 767, 13 S.E.2d 814, 1941 Ga. LEXIS 374 (1941); City of Tifton v. Cooper, 206 Ga. 379, 57 S.E.2d 196, 1950 Ga. LEXIS 346 (1950). The general rule of this section is not changed by the fact that the prosecution may be based upon an invalid ordinance, in the absence of other circumstances to justify interference by a court of equity. This is true for the reason that the ordinance may be attacked as well by a defense to prosecution as by injunction. Jewel Tea Co. v. City of Cartersville, 185 Ga. 799, 196 S.E. 712, 1938 Ga. LEXIS 529 (1938) (see O.C.G.A. § 9-5-2). Particularly where ordinance purely penal in nature. - Where the ordinance involved, with reference to the means provided for its enforcement, is purely penal in nature, a court has no power, upon an application for injunction against its enforcement, to inquire into its validity, either upon constitutional or other grounds, and to enjoin the city from attempting to enforce it. If the ordinance is invalid, by reason of its unconstitutionality, or for other cause, such invalidity would be a complete defense to any prosecution that might be instituted for its violation. Staub v. Mayor of Baxley, 211 Ga. 1, 83 S.E.2d 606, 1954 Ga. LEXIS 468 (1954). Equity may question validity of ordinance where property endangered. - While equity will not ordinarily enjoin a criminal prosecution, yet where repeated prosecutions are threatened under a void municipal ordinance, and the effect of such prosecutions would tend to injure or destroy the property of the person so prosecuted, or deprive the person of the legitimate enjoyment of the person’s property, equity will entertain an action to inquire into the validity of the ordinance and enjoin its enforcement. City of Atlanta v. State, 181 Ga. 346, 182 S.E. 184, 1935 Ga. LEXIS 84 (1935); Columbus, Ga. v. Granco, Inc., 240 Ga. 850, 242 S.E.2d 607, 1978 Ga. LEXIS 849 (1978). Invalidity of ordinance alone not justification for equitable intervention. - The fact that a prosecution may be based on an invalid ordinance does not, in the absence of other circumstances,

justify intervention of a court of equity changing the general rule. Spur Distrib. Co. v. Mayor of Americus, 190 Ga. 842, 11 S.E.2d 30, 1940 Ga. LEXIS 590 (1940); City of Bainbridge v. Olan Mills, Inc., 207 Ga. 636, 63 S.E.2d 655, 1951 Ga. LEXIS 487 (1951). Fact that repeated prosecutions may ensue. - The fact that repeated arrests and prosecutions may be instituted under an invalid ordinance will not, without more, justify equitable interference. Spur Distrib. Co. v. Mayor of Americus, 190 Ga. 842, 11 S.E.2d 30, 1940 Ga. LEXIS 590 (1940); City of Bainbridge v. Olan Mills, Inc., 207 Ga. 636, 63 S.E.2d 655, 1951 Ga. LEXIS 487 (1951). Mere inconvenience, expense, or apprehension of injury to property rights will not give equity jurisdiction. Neither will mere general allegations of irreparable injury and deprivation of property rights. Walnut Transf. & Storage Co. v. Harrison, 185 Ga. 720, 196 S.E. 432, 1938 Ga. LEXIS 514 (1938); Spur Distrib. Co. v. Mayor of Americus, 190 Ga. 842, 11 S.E.2d 30, 1940 Ga. LEXIS 590 (1940); City of Tifton v. Cooper, 206 Ga. 379, 57 S.E.2d 196, 1950 Ga. LEXIS 346 (1950). Equity may restrain criminal nuisance at instance of state. - Equity may, in a proper case at the instance of the state, restrain an existing or threatened public nuisance, though the offender is amenable to the criminal laws of the state. American Legion v. Miller, 183 Ga. 754, 189 S.E. 837, 1937 Ga. LEXIS 406 (1937). Action to enjoin enforcement of ordinance prohibiting hogs in city properly dismissed. - An action to enjoin prosecution for violations of a municipal ordinance prohibiting the keeping of hogs within certain areas of a city falls within the general rule that equity will not inquire into the validity or reasonableness of an ordinance making penal an act for the doing of which prosecutions are threatened. Sosebee v. City of Demorest, 182 Ga. 338, 185 S.E. 330, 1936 Ga. LEXIS 348 (1936). Action to enjoin enforcement of ordinance regulating plumbers’ licenses. - Where action is filed in a court of equity, seeking to enjoin the enforce-

ment of a municipal ordinance, requiring the passing of an examination and the securing of a proficiency card prior to engaging in plumbing work, on the ground that it is unconstitutional, and where it appears that no arrest has been made, no property levied upon, and there has been no other interference with the person or property rights of the petitioner, but that the petition is based upon a threat or mere apprehension of injury to person or property rights, it is proper to refuse an interlocutory injunction. Thomas v. Mayor of Savannah, 209 Ga. 866, 76 S.E.2d 796, 1953 Ga. LEXIS 446 (1953). Court properly refused to enjoin enforcement of ordinance regulating barbers. - Petition seeking a judgment decreeing city ordinances attempting to regulate barbers and the barber trade unconstitutional, and to enjoin the defendants from further attempts to enforce the ordinances, had as its primary purpose the enjoining of criminal prosecutions, and was properly dismissed on demurrer (now motion to dismiss). Powell v. Hartsfield, 190 Ga. 839, 11 S.E.2d 33, 1940 Ga. LEXIS 591 (1940). Ordinance fixing beauticians’ license and fees. - Where plaintiff brought action attacking validity of an ordinance levying a business license upon beauticians and creating a board vested with the power to fix minimum prices to be charged for services by all beauty shops in that city, an injunction restraining the city from prosecuting petitioner for a violation of the ordinance was properly denied. Ray v. City of Dalton, 191 Ga. 46, 11 S.E.2d 193, 1940 Ga. LEXIS 597 (1940). Demurrer (now motion to dismiss) was properly sustained to equitable petition brought by owner and operator of beauty shop against city, seeking to enjoin enforcement of the penal provisions of ordinance fixing hours of work and minimum prices to be charged by operators of beauty shops for specified services, and to enjoin threatened criminal prosecutions for violations thereof, where nothing was alleged to take the case out of the general rule that courts of equity will not enjoin a criminal prosecution. Anthony v. City of Atlanta, 190 Ga. 841, 11 S.E.2d 197, 1940 Ga. LEXIS 600 (1940). Ordinance regulating gasoline station hours. - The judge did not err in

refusing to grant an interlocutory injunction seeking to restrain the city from enforcing an ordinance limiting the hours of keeping open filling stations, which provided for prosecution and upon conviction for fine or imprisonment, it not appearing that the plaintiff, a filling station owner and operator, stood in any imminent danger of its property, but at most that it would be subjected to prosecution for violation of its provisions. Speed Oil Co. v. City of Dublin, 193 Ga. 325, 18 S.E.2d 627, 1942 Ga. LEXIS 395 (1942). Ordinance fixing filling station license fees. - Allegations of petition by filling station operators asking protection from the effect of a city ordinance requiring payment by certain operators for a business license, in addition to the regular business license required of all gasoline filling stations, did not make out such a case as would take it out of the general rule that equitable powers may not be used to restrain criminal prosecution in enforcement of a municipal ordinance alleged to be invalid. Spur Distrib. Co. v. Mayor of Americus, 190 Ga. 842, 11 S.E.2d 30, 1940 Ga. LEXIS 590 (1940). Interlocutory injunction was properly refused where electrical engineer sought to restrain enforcement of ordinance to regulate supervision of electrical energy and installation of electrical construction and appliances, alleging that certain provisions of the ordinance requiring examination and fixing other conditions were invalid, for constitutional reasons, that its enforcement against the plaintiff would deprive the plaintiff of the plaintiff’s right to carry on the plaintiff’s profession and to engage in the electrical contracting business, and that the plaintiff had been threatened with arrest and would be prosecuted under the penal provisions of the ordinance for each act in performing the work of an electrical contractor. Corley v. City of Atlanta, 181 Ga. 381, 182 S.E. 177, 1935 Ga. LEXIS 97 (1935). Injunction would not lie against arrest and prosecution of alleged traveling salesman, and others of the salesman’s employees, carrying on the business of taking orders for future delivery, on account of their failure to pay a city li-

cense fee for carrying on business imposed under an allegedly illegal ordinance. Mather Bros. v. City of Dawson, 188 Ga. 450, 4 S.E.2d 165, 1939 Ga. LEXIS 559 (1939). Violations of the Open Records Act. - Where the director of a county agency alleged that the county board of commissioners violated O.C.G.A. § 50-14-3(6) of the Open Records Act, O.C.G.A. § 50-14-1 et seq., with regard to events at a closed meeting, and sought injunctive relief to

prevent future violations, the trial court erred in issuing temporary and permanent injunctions ordering the board to comply with the Open Records Act in the future since the board already had a duty to obey the law and criminal penalties were available for violations of the Act. Wiggins v. Bd. of Comm’rs, 258 Ga. App. 666, 574 S.E.2d 874, 2002 Ga. App. LEXIS 1540 (2002), cert. denied, No. S03C0593, 2003 Ga. LEXIS 334 (Ga. Mar. 28, 2003).

OPINIONS OF THE ATTORNEY GENERAL Equity will not enjoin prosecution of criminal offenses or criminal or quasi-criminal prosecution. 1957 Ga. Op. Att’y Gen. 66. Court of equity probably would not enjoin arrest and prosecution of mo-

torist for operating a motor vehicle without a tag, notwithstanding the motorist’s contention that the motorist did not owe taxes that the motorist would be required to pay in order to obtain such tag. 1957 Ga. Op. Att’y Gen. 66.

RESEARCH REFERENCES Am. Jur. 2d. 42 Am. Jur. 2d, Injunctions, §§ 1, 13, 26, 143 et seq. C.J.S. 43A C.J.S., Injunctions, § 276 et seq. ALR. Power to enjoin officers from enforcing liquor laws, 3 A.L.R. 1484. Injunction against search of premises for liquor, 36 A.L.R. 936. Jurisdiction, at the instance of govern-

mental agency, to enjoin an act amounting to a crime, 91 A.L.R. 315. Injunction as available remedy against prosecution or arrest for conducting business or practicing profession without a license, 167 A.L.R. 915. Preconviction procedure for raising contention that enforcement of penal statute or law is unconstitutionally discriminatory, 4 A.L.R.3d 404.