Horne v. City of Cordele

• Decision Date: 22 October 1976
• Docket Number: No. 3,No. 52780,52780,3
• Citation: 230 S.E.2d 333,140 Ga.App. 127
• Parties: O. W. HORNE, Jr. v. The CITY OF CORDELE, Georgia, et al
• Court: Georgia Court of Appeals

Page 333

230 S.E.2d 333

140 Ga.App. 127

O. W. HORNE, Jr. v. The CITY OF CORDELE, Georgia, et al.

No. 52780.

Court of Appeals of Georgia, Division No. 3.

Oct. 22, 1976.

Mullis, Reynolds, Marshall & Horne, W. Carl Reynolds, Macon, for appellant.

Roberts, Roberts & Rainwater, Guy V. Roberts, Jr., Cordele, for appellees.

DEEN, Presiding Judge.

The ordinance is undoubtedly drawn with reference to Code § 69-1118 which provides in part: 'Any municipality may be ordinance require the repair, closing or demolition of dwellings or other structures intended for human habitation which are, as defined in such ordinance, unfit for human habitation or which may imperil the health, safety or morals of the occupants thereof or of surrounding areas,' and also provides for notice and hearing as to whether such conditions exist. It is obvious that the city could demolish the house without payment of just and adequate compensation only in the exercise of its police power, which, as discussed at length in McCoy v. Sanders, 113 Ga.App. 565, 148 S.E.2d 902, is government's inherent and plenary power over persons and property, having its origin in the law of necessity, which extends to all great public needs, sanctions the destruction of property for such purposes without recompense, and, as to the owner, constitutes damnum absque injuria. The constitutional considerations which hedge in government's right of eminent domain do not apply to police power, and the citizen whose property is taken or destroyed is helpless before it. For this reason alone the authorization of government to take the property of its citizens can be invoked only in the face of compelling necessity, and it extends no further than the emergency which creates it. The rule, if not the designation, is inherent in Dupree v. Mayor and Council of Brunswick, 82 Ga. 727, 9 S.E. 1085, where the court held of a fire prevention ordinance: 'Without deciding whether the mayor and council have this great power conferred on them which they claim, or whether the legislature has power to confer it, we hold that if they have such power and can remove any building in the city when 'in their opinion it shall be necessary to insure against fire,' they can only do so in cases of absolute necessity, or in grave emergencies, when the removal is necessary to prevent fires and destruction of other property by fire.' The destruction of property for aesthetic reasons, for example, has been held an unconstitutional exercise of the power. Village of Deshler v. Hoops, Ohio Com.Pl., 196 N.E.2d 476. And so is any other exercise of government's power of uncompensated destruction over the property of the citizen which exceeds the immediate necessity of the occasion. City of Newport v. Rosing, Ky., 319 S.W.2d 852. '(W)hile the right exists in the exercise of the police power to destroy property which is a menace to public safety or health, public necessity is the limit of the right and the property cannot be destroyed if the conditions which make it a menace can be abated in any other recognized way. Polsgrove v. Moss, 154 Ky. 408, 157 S.W. 1133;39 Am.Jur. 461-462, § 186; 62 C.J.S. Municipal Corporations § 281, pp. 631-632; Crossman v. City of Galveston, 112 Tex. 303, 316, 247 S.W. 810, 26 A.L.R. 1210.' Houston v. Lurie, 148 Tex. 391, 224 S.E.2d 871,14 A.L.R.2d 61. See also Albert v. Mountain Home, 81 Idaho 74, 337 P.2d 377; Aurora v. Meyer, 38 Ill.2d 131, 230 N.E.2d 200; Childs v. Anderson,344 Mich. 90, 73 N.W.2d 280; Application of Suffern, App.Div., 209 N.Y.S.2d 599; Newton v. Highland Park, Tex. Civ.App., 282 S.W.2d 266; Horton v. Gulledge,...