Bacon v. Walker

• Decision Date: 23 November 1886
• Citation: 77 Ga. 336
• Parties: BACON et al. v. WALKER et al., commissioners.
• Court: Georgia Supreme Court

77 Ga. 336

BACON et al. v. WALKER et al., commissioners.

Supreme Court of Georgia.

November 23, 1886

October Term, 1886.

The county commissioners of Chatham county are clothed with the powers that formerly appertained to the office of ordinary including the power to erect and repair public buildings. 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 of the code, or levying an exorbitant or unnecessary tax. Even if a tax had been levied unless it were exhorbitant or unnecessary, the superior court could not review their action so as to set aside their judgment, unless the discretion given them by law had been abused. But where no tax is necessary, and the money required can be raised without any tax, and the election to determine on the issue of bonds has been withdrawn, discretion as to the necessity for the jail and the reasonableness of its erection is vested in the commissioners, and there being no fraud or irreparable injury or abuse of discretion, a refusal to control that discretion by injunction will not be reversed.

( a. ) Nothing that is legal in its erection can be a nuisance per se. Much less can that which public necessity demands, such as a jail, be so. Nor will the courts indulge in conjecture that the manner in which the jail will be conducted will prove a nuisance, and upon such imaginary fear or uncertain apprehension of speculative or contingent injuries, stop the erection of such a public necessity.

( b. ) The provision of the constitution, embodied in section 5024 of the code, that private property shall not be taken or damaged for public purposes without compensation being first paid, does not authorize a court of equity to enjoin the erection of a county jail on the ground of apprehended injury to persons living in the neighborhood.

( c. ) There was nothing illegal in the city of Savannah's passing title to the old jail lot to the county commissioners for the purpose of assisting in the expense of the new building, this being done under an ordinance and upon the consideration that the city prisoners should be maintained therein, as had been done before.

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 discretion in 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...