Title: City of Hawkinsville v. Clark - Supreme Court of Georgia, Sept. 16, 1975
CITATION THUMBNAILS PAGE IMAGE ZOOMABLE
Full Citation
STANDARD VIEW MARC VIEW
Permanent Link: http://ufdc.ufl.edu/WL00004447/00001
 Material Information
Title: City of Hawkinsville v. Clark - Supreme Court of Georgia, Sept. 16, 1975
Physical Description: Book
Language: English
Publisher: 219 South Eastern Reporter, 2d Series
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Jake Varn Collection - City of Hawkinsville v. Clark - Supreme Court of Georgia, Sept. 16, 1975 (JDV Box 86)
General Note: Box 22, Folder 3 ( Court Cases of Water Rights in States Other Than Florida - 1990 ), Item 10
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00004447
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text



CITY OF HAWKINS
Cite as 219 S
235 Ga. 191
Farriz Douie JOHNSON
V.
Joe S. HOPPER, Warden.
No. 30119.

Supreme Court of Georgia.
Sept. 16, 1975.


In habeas corpus proceeding, the Supe-
rior Court, Tattnall County, Paul S. Cas-
xcell, J., denied petitioner's habeas corpus
petition, and petitioner appealed. The Su-
preme Court, Ingram, J., held that where
trial court failed to consider petitioner's
second ground of relief that indictment un-
dIr which he was convicted was not legally
sufficient, judgment must be vacated and
case remanded for hearing on that point.
Judgment vacated and remanded.


Habeas Corpus (=8113(13)
In habeas corpus proceeding, where tri-
al court failed to consider petitioner's
second ground of relief that indictment un-
der which he was convicted was not legally
sufficient, judgment must be vacated and
case remanded for hearing on that point.


Farriz Douie Johnson, pro se.
Arthur K. Bolton, Atty. Gen., Atlanta,
for appellee.


INGRAM, Justice.
This is a habeas corpus case, in which a
notice of appeal was filed in the trial court
on April 16, 1975, appealing from a final
order entered in the trial court on April 9,
1975, which denied relief to appellant. The
record and appeal were filed in this court
on May 22, 1975, and the case was sub-
mitted to this court for decision on July 8,
1975.
The trial court denied the petition for
habeas corpus, without a hearing, for fail-
219 S.E.2d-13


VILLE v. CLARK Ga. 577
S.E.2d 577
ure to state a claim for relief as it appeared
to the trial court that petitioner sought
relief solely on the ground that his prior
conviction was not supported by legally suf-
ficient evidence. The record before this
court indicates that petitioner also attacked
the legal sufficiency of the indictment un-
der which he was convicted. It does not
appear that the trial court considered this
ground for relief urged by appellant and
there is no copy of the indictment in the
present record.
Under these circumstances, judgment of
the trial court will be vacated and the case
will be remanded for a hearing on whether
the indictment, under which appellant was
convicted, sufficiently alleges a crime under
the laws of the State. See Bass v. Ault, 229
Ga. 309, 191 S.E.2d 73.
Judgment vacated and remanded.

All the Justices concur.


(o KEY UMBER SYSTEM




135 Ga.App. 875
CITY OF HAWKINSVILLE
v.
D. T. CLARK.
No. 50781.

Court of Appeals of Georgia,
Division No. 1.

Sept. 2, 1975.

Rehearing Denied Sept. 29, 1975.


The Superior Court, Pulaski County,
James B. O'Connor, J., declared unconstitu-
tional city ordinance which prohibited dig-
ging of a well of any kind without obtain-
ing permission of the board of commission-
ers and set aside conviction of defendant in
city recorder's court under ordinance, and
city appealed. After the appeal was trans-


111 ~--- -----wa







219 SOUTH EASTERN REPORTER, 2d SERIES


ferred from the Supreme Court, 233 Ga.
951, 213 S.E.2d 893, the Court of Appeals,
Bell, C. J., held that city ordinance was
constitutionally defective in that it granted
arbitrary authority to city board of commis-
sioners to grant permit to some and to
refuse others, prescribing no rule or guide
which would preclude partiality, and in that
it did not grant an applicant for a permit
an opportunity to be heard in support of his
application.
Affirmed.


1. Property =37
Waters and Water Courses c=101
Person who owns surface may dig
therein and apply all that is found therein
to his own personal purposes at his free will
and pleasure, and thus use or digging of a
well on one's own property is generally a
perfectly lawful undertaking and the exer-
cise of a right in property. Code, 105-
1409.

2. Municipal Corporations (=8621
While a municipality may make reason-
able rules and regulations looking to the
protection, safety and health of its citizens
and may require permits for the exercise of
its power of regulation, the grant or refusal
of a permit cannot be left to arbitrary
discretion.

3. Municipal Corporations o=>594(2), 626
City ordinance, which prohibited the
digging of a well of any kind without ob-
taining permission of the board of commis-
sioners, was constitutionally defective since
it granted to board of commissioners of city
arbitrary authority to grant permit to some
and to refuse others, prescribing no rule or
guide which would preclude partiality, and
since it did not grant an applicant for a
permit opportunity to be heard in support
of his application.

4. Constitutional Law =208(1)
Both the Federal and State Constitu-
tions require that all persons shall be treat-


ed alike, and forbid the exercise of arbi-
trary power.
5. Constitutional Law c=-278(1)
Where one's property rights are in-
volved, due process of law requires a hear-
ing as a matter of right.


Baker & Strickland, Walter E. Baker,
Hawkinsville, for appellant.
Lawson & Lawson, Roger H. Lawson,
Hawkinsville, for appellee.

BELL, Chief Judge.
The defendant Clark was convicted in the
Recorders Court of the City of Hawkinsville
for violating a City Ordinance which pro-
hibited the digging of a well of any kind
without obtaining permission of the Board
of Commissioners. On Certiorari to the Su-
perior Court the ordinance was declared
unconstitutional and the conviction was set
aside. The City appeals from this judg-
ment.
The ordinance provided that it shall be
unlawful for any person, to dig. or have
dug, on any private or public oropertv,
within the corporate limits of the City any
well of any kind whatever without first
having obtained from the City a permit
therefore; that "The granting or refusal of
such permit shall be in.the sole discretion of
the Board of Commissioners of the City of
Hawkinsville." It also contained a penal
provision for its violation. Held:

[1-5] The City of course contends that
the ordinance is a valid exercise of its police
powers granted to it by its charter to pro-
tect the health and general welfare of its
citizens; and that supplying the public with
an adequate water supply affects the public
health as well as the public safety. While
we do not quarrel with this premise as a
general proposition, the issue here is wheth-
er the ordinance is a constitutional exercise
of the police power of a municipality. The
owner of realty has title upwards and
downwards indefinitely. Code 105-1409.


578 Ga.







JOHNSON v
Cite as 219 S
A person who owns the surface may dig
therein and apply all that is found therein
to his own personal purposes at his free will
and pleasure. Stoner v. Patten, 132 Ga.
178, 63 S.E. 897. Thus it can be seen that
the use or the digging of a well on one's
own property is generally a perfectly lawful
undertaking and the exercise of a right in
property. While a municipality may make
reasonable rules and regulations looking to
the protection, safety and health of its citi-
zens and may require permits for the exer-
cise of its power of regulation, the grant or
refusal of a permit cannot be left to arbi-
trary discretion. Jones v. City of Atlanta,
51 Ga.App. 218, 179 S.E. 922. The ordi-
nance here is constitutionally defective for
two reasons. One, it grants to the Board of
Commissioners of the City the arbitrary
authority to grant a permit to some and to
refuse others. It prescribes no rule or
guide by which it may be impartially exe-
cuted and which will preclude partiality.
Two, it does not grant an applicant for a
permit an opportunity to be heard in sup-
port of his application. Both the Federal
and the Georgia Constitutions require that
all persons shall be treated alike and the
exercise of arbitrary power is forbidden.
Dorsey v. City of Atlanta, 216 Ga. 778, 781,
119 S.E.2d 553. Where one's property
rights are involved due process of law re-
quires a hearing as a matter of right.
Blocker v. Blackburn, 228 Ga. 285, 185
S.E.2d 56. The ordinance is unconstitution-
al on its face. The trial court did not err in
striking it down.

Judgment affirmed.


WEBB and MARSHALL, JJ., concur.


o KEY NUMBERSYSTEM
IIZUMB


. DANIEL Ga. 579
i.E.2d 579
135 Ga.App. 926
Dorothy JOHNSON et al.
v.
Belle M. DANIEL.
No. 50468.
Court of Appeals of Georgia,
Division Nos. 1-3.
Sept. 2, 1975.

Rehearing Denied Oct. 1, 1975.


Action was brought for hospital ex-
penses, medical bills, medication and per-
sonal injuries arising out of collision of
automobile with seven-year-old child. The
Superior Court, DeKalb County, T. M. Al-
len, J., granted defendant's motion for di-
rected verdict, and plaintiffs appealed. The
Court of Appeals, Stolz, J., held that notice
of appeal was sufficient; that evidence was
sufficient for jury on issue as to whether
defendant had been driver of automobile
involved; that issues as to child's contribu-
tory negligence and as to defendant's negli-
gence were for jury; and that defendant
could not on appeal challenge mother's
right to sue for medical expenses, etc., on
theory that such action lay with father,
since defendant did not question mother's
capacity to sue at the outset.
Judgment reversed.
Deen, P. J., filed a dissenting opinion in
which Pannell, P. J., and Quillian, J., con-
curred.
Evans, J., filed a dissenting opinion
wherein he concurred in dissent by Deen, P.
J.


1. Appeal and Error 0=419(1)
Where it was apparent from examina-
tion of enumeration of errors that final
judgment appealed from was the order
which granted directed verdict for defeud-
ant, notice of appeal was sufficient, even
though it failed to specify definitely judg-
ment appealed from. Code, 6-809; Court


_ .__ __




University of Florida Home Page
© 2004 - 2010 University of Florida George A. Smathers Libraries.
All rights reserved.

Acceptable Use, Copyright, and Disclaimer Statement
Last updated October 10, 2010 - - mvs