Bacon v. Walker

• Decision Date: 31 October 1886
• Citation: 77 Ga. 336
• Parties: Bacon et al. vs. Walker et al., commissioners.
• Court: Georgia Supreme Court

77 Ga. 336

Bacon et al. vs. Walker et al., commissioners.

Supreme Court of the State of Georgia

OCTOBER TERM, 1886.

November 23, 1886.

County Matters. Chatham County. Jails. Nuisance. Constitutional Law. Municipal Corporations. Savannah. Before Judge Adams. Chatham Superior Court. March Term, 1886.

Reported in the decision.

Garrard & Meldrim, for plaintiff in error.

Lawton & Cunningham; P. J. O\'Connor, for defendants.

Jackson, Chief Justice.

This bill was brought to restrain the county commissioners of Chatham county from erecting a new jail in the city of Savannah near the residences of the complainants. Afterwards the bill was amended so as to ask that the city be also enjoined from transferring to the said commissioners the title to the real estate on which the present jail is built, and its surrounding territory, embracing all that jail lot, to assist in the expense of the new building.

The judge refused the injunction and afterwards dismissed the bill. The latter judgment is assigned as erroneous.

In our judgment, there is no equity in the bill. The county commissioners are clothed with the powers that formerly appertained to the office of ordinary. Acts of 1873, p. 236.

Before that act, the ordinary had power to erect and repair public buildings. Code, §§496, 497, 499, 502.

At the instance of tax-payers, the superior court may review the conduct of the commissioners either in failing to comply with sections 496, 497, 499, 502, or levying an exorbitant or unnecessary tax. Code, §503.

Even if a tax had been levied in the present case, unless it was exorbitant or unnecessary, the superior court could not review their actions so as to set aside their judgment, unless the discretion given them by law had been thus abused; but we understand that, by reason of the arrangement with the city, no tax is necessary; and hence the withdrawal of the election to determine on the issue of bonds under the local act of 1882-3, p. 671, and money necessary will be raised without any tax. So that all the superior court can review is the necessity of the jail and the reasonableness of its erection. Of course about such matters the discretion is with the commissioners, and we see no fraud or irreparable injury or abuse of discretionin their conduct. High on Injunctions, §797; 1 Dillon Mun. Corp. §58-59.

It is true that nobody would be pleased at the erection of a jail in the vicinity of his residence, but it must be built somewhere. It is a public necessity. It is authorized by law. In no sense, or rather in no legal sense, is it a nuisance. Nothing that is legal in its erection can be a nuisance per se; much less can that which public necessity demands be one. Possibly the manner of its being kept might become so, but the courts will not indulge in conjectures or imaginary fear or uncertain apprehension, and upon such ideas or imaginations stop a public necessity from being built. Even a thing that tends to public convenience, such as a livery-stable, equity will not restrain in the course of erection, unless the evil be not merely probable but certain and inevitable. Harrison vs. Brooks, 20 Ga. 537. How much stronger is the case of a jail, an absolute necessity, and which must be built in some part of the city and near to somebody's house.

Mere allegations of speculative and contingent injuries will not authorize an injunction; there must be something to show that the injuries will result from the erection even of a private stable. Rounsaville vs. Kohlheim, 68 Ga. 668.^*

Nor do we think that the provision of the constitution of 1877, code, §5024, aids the complainants. It is that private property shall not be taken or damaged for public purposes without compensation being first paid. In Moore vs. The City of Atlanta, 70 67a. 611, it was held that grading the street and ruining the shade trees on the sidewalk in front of the residence, whilst it might give a right of action at law for damages, would not authorize equity to restrain 6uch a public work as the grading of the streets of a city; if not, even conceding that the erection of a jail on the land of the county, and thereby lessening the value and working inconvenience to the neighboringresidents, might give the right of action at law, how can equity stop such a public...