City of Brunswick v. King

• Citation: 17 S.E. 940,91 Ga. 522
• Parties: MAYOR, ETC., OF CITY OF BRUNSWICK v. KING et al.
• Decision Date: 10 April 1893
• Court: Supreme Court of Georgia

17 S.E. 940

91 Ga. 522

MAYOR, ETC., OF CITY OF BRUNSWICK v. KING et al.

Supreme Court of Georgia

April 10, 1893

Syllabus by the Court.

The streets of the city of Brunswick being by its charter vested in fee simple in the mayor and council, with power to widen extend, and straighten the same, and with power to open, lay out, and establish new streets, the necessary incidental power of grading and otherwise improving the streets and keeping them in repair is also in the mayor and council. None of these powers are withdrawn, abridged, or limited by the amended charter of the city, approved November 12, 1889 providing for the creation of a board of health and the election of a health officer. Ordinances passed under the authority of the amended charter, which do not expressly name the mayor and council as subject thereto, are not operative upon them when acting as a municipal body in the exercise of their corporate functions in improving or repairing the streets. Brooks v. State, 54 Ga. 36; Lingo v Harris, 73 Ga. 28. Consequently the board of health or its members cannot have the mayor and council restrained or enjoined from grading and improving a street on the ground that the work or its results will be dangerous to the public health.

Error from superior court, Glynn county; J. L. Sweat, Judge.

Action by M. P. King and others, constituting the board of health, against the mayor and council of the city of Brunswick for an injunction. There was judgment for plaintiffs, and defendants bring error. Reversed.

Crovatt & Whitfield and F. H. Harris, for plaintiffs in error.

W. G. Brantley, for defendants in error.

SIMMONS J.

By the injunction in this case the mayor and council are prohibited from excavating or removing any soil, earth, or dirt within the corporate limits, for any purpose, during the period stated, unless by permission of the municipal board of health. The ground upon which the injunction is placed is not that such excavating, etc., would constitute a nuisance per se, but that all power and authority of the city council in the matter of upturning the earth in the city during that period was relinquished, and the consent of the board of health rendered necessary, by an ordinance adopted by the mayor and council, at the request of the board of health, on the 2d of July, 1890, which declared it should be "unlawful for any persons to excavate or remove, either or both, any soil, earth, or dirt within the incorporate limits of said city, at any time from the first day of June until the fifteenth day of October in each and every year, including the year 1890, unless by permission of the board of health, evidenced by a resolution of said board to that effect;" and that any person violating the provisions of the ordinance should, upon conviction in the police court, be punished as prescribed by the city charter. We think the court below erred in holding this ordinance applicable to the mayor and council, so as to preclude them from exercising their corporate functions in improving and...