Burckhardt v. City of Atlanta

Lewis, J. The facts are stated in the official report. 1. By virtue of the act approved October 10, 1891 (Acts of 1890-1891, vol. 1, p. 229), authority is given any city of this State, having a population of over twenty thousand, to pave again any street on which the pavements are worn out and useless. It is insisted by counsel for plaintiff in error that this authority does not carry with it the power to pave simply a portion of the street. If this contention be correct, then no part of a street could be repaved until the pavement throughout the entire length of the street had become worn out and useless. The power to improve “any street” necessarily carries with it the right to improve only a portion of such street. 2 Dill. Mun. Corp. § 799; Bacon v. Savannah, 86 Ga. 301. Besides this, under the act of December 17, 1892 (Acts of 1892, p. 135), amending the charter of the City of Atlanta, authority is given it in express terms to pave, or contract directly for the paving of, the whole or any portion of any street in said city. 2. When Washington street was first paved, the charter of the City of Atlanta required the street railroad company to do its part of the paving. (See Acts of 1880-1881, pp. 359-360.) It is contended by counsel for plaintiff in error, that inasmuch as the act of October 10, 1891, above cited, provides for the re-pavement of streets upon the same terms and conditions as to assessments of property and street-car companies as were in force when such paveménts were originally laid, the local legislature of the City of Atlanta had no authority in law to direct a re-pavement of any of its streets without giving the street-railroad company an opportunity to do its part of the paving. Subsequently to the act of October 10, 1891, and before the ordinance in question was passed, the charter of Atlanta was again amended, authorizing said city “to require any street-railroad company having or using tracks in such street or portion of street to pay for the paving of the space therein which such company or companies may be required to pave under the existing law, the object of this amendment being to allow the city to pave or contract for the paving of the whole surface of the street, without giving the street-railroad company the option of having the space to be paved by it paved by itself or by a [309] contractor at its instance.” (Acts of 1892, p. 135.) It was, therefore, proper that the ordinance upon the subject of repavement should have followed, as it did in this case, the act last above cited, instead of the original paving act of 1881. 3. If the city has a right to repave its streets, as above indicated, it necessarily follows that it has the power to remove any material on the street that may be in the way of a proper execution of the work. Whether the property-owners have any interest in or title to the old paving material, growing out of the fact that they aided in defraying the original cost of laying such material, it is not now necessary to decide. They certainly have not such an interest in it as gives them the right to enjoin the city from removing the same, and thus entirely obstruct it from exercising the powers conferred upon it by law. 4, 5. The question of improving, repairing or repaving the streets of Atlanta is left to the discretion of its municipal legislature. It is a well-established rule of law that the courts will not interfere with the exercise of such discretion unless the power conferred is exceeded, or fraud is imputed and shown, or there is an arbitrary and unreasonable invasion of private rights. 1 Dill. Mun. Corp. § 94; State v. Swearingen, 12 Ga. 23; Mayor of Athens v. Camak, 75 Ga. 429; Speer v. Athens, 85 Ga. 49; Regenstein v. Atlanta, 98 Ga. 167. While the State is jealous of her sovereign right of legislation, and while a strict construction will be given any legislative power conferred by her upon one of her communities, yet it should not receive such a narrow interpretation as would result in defeating the very •ends for which it was conferred. An incorporated city is a government within a government. It has it own executive, judicial, and legislative branches. It is a creature of the State, and can exercise no power that is not derived from its creator. Where legislative power is conferred upon it by the State, it is necessary that a degree of freedom should be allowed in its exercise ; otherwise the city would be so hampered in the government of its people as would defeat the very ends of its incorporation. Hence it is that the State courts will never interfere with the free exercise of such rights as are left to the discretion •of a corporate authority, unless such authority should go be [310] yond the scope of power delegated, or unless the discretion given should he abused by an arbitrary exercise thereof, and by a plain and unwarranted violation of private rights. It was contended by the petitioners in this case that the work of paving the portion of Washington street embraced in the ordinance was an entirely unnecessary and useless charge upon them as taxpayers and owners of property on said street, and that at much less cost the present macadamized pavement thereon could be repaired. Much evidence was introduced before the judge on the hearing of the application for injunction. There was not so much a conflict in the testimony as there was a difference of opinion on the part of the witnesses who testified on the hearing. There was sufficient evidence in behalf of the defendant to have sustained the court in refusing an injunction even upon a, matter entirely within his discretion. The evidence did not sustain the theory that there had been an arbitrary and unreasonable, or a fraudulent exercise of power by the city authorities in this instance. We therefore conclude that the court did right in refusing the injunction prayed for, and the judgment is accordingly Affirmed. All the Justices concurring.