Marietta Chair Co. v. Henderson

• Decision Date: 10 December 1904
• Citation: Marietta Chair Co. v. Henderson, 121 Ga. 399, 49 S.E. 312 (Ga. 1904)
• Parties: MARIETTA CHAIR CO. v. HENDERSON.
• Court: Georgia Supreme Court

49 S.E. 312

121 Ga. 399

MARIETTA CHAIR CO. v. HENDERSON.

Supreme Court of Georgia

December 10, 1904

Syllabus by the Court.

1. In the absence of constitutional restrictions, the lawmaking power of a state may vacate a street in a municipality.

2. The power to vacate may be delegated to the municipal corporation.

3. When a street is vacated, the interest of the public therein ceases, and the owners of the fee, who are presumptively the abutting landowners, become entitled to use the property without regard to the former servitude imposed upon it.

4. If the closing of a street results in damaging private property within the meaning of the Constitution of this state, the owner of the property thus damaged, by allowing the street to be closed without instituting proceedings to prevent it waives his right to demand compensation as a condition precedent to the closing of the street, and is remitted to his action at law for damages.

5. An act of the General Assembly authorizing the closing of a street need not provide for the payment of compensation to those whose property is thereby taken or damaged, there being a general law of the state providing a method for ascertaining the compensation to be paid in all such cases.

6. Where a decree based on a consent verdict is entered requiring the removal of an obstruction in a public street and subsequently a state of facts arises which renders the maintenance of the obstruction lawful and proper, a petition praying for the granting of an order declaring that the decree is no longer binding should be granted.

7. While a judgment refusing in general terms to grant specified relief will be affirmed if the record shows that any valid objection was raised to the petition, none of the objections set up in the demurrers or answer in the present case were well taken.

Error from Superior Court, Cobb County; Geo. F. Gober, Judge.

Action by C. E. Henderson against the Marietta Chair Company. Judgment for plaintiff, and defendant brings error. Reversed.

Henderson brought an action against the Marietta Chair Company to enjoin it from obstructing a portion of Hansell street, sometimes called McClellan street, in the city of Marietta. The defendant claimed authority to obstruct the street under a resolution of the mayor and council, adopted on September 1, 1902, which relinquished all right in the street to the plaintiff and defendant, respectively, as the abutting landowners. At that time there was no express legislative authority for the closing of this street. A consent verdict was rendered, in which the defendant was perpetually enjoined in accordance with the prayers of the petition, and upon this verdict a decree was entered, and no exception was ever taken to the decree. Subsequently Henderson presented a petition, alleging that the defendant had failed to comply with the decree, and had violated it by continuing to obstruct the street. The defendant answered, and upon the hearing the court passed an order requiring the defendant to remove the obstruction, as required by the decree, within 20 days, or, in default, show cause why he should not be attached for contempt. To this order the defendant excepted, and the judgment was affirmed by the Supreme Court. 119 Ga. 65, 45 S.E. 725. After this judgment was affirmed, and before the expiration of 20 days from the time the judgment of the Supreme Court was made the judgment of the trial court, the Marietta Chair Company presented a petition, in which it was alleged that since the decree had been rendered a new state of facts had arisen; that the General Assembly, on August 10, 1903 (Acts 1903, p. 705), had passed an act ratifying the action of the mayor and council in authorizing that portion of Hansell street which was in controversy to be closed, and specifically authorizing them to convey that portion of the street to the adjacent landowners. The act conferred power to exercise the authority granted by a majority vote of the mayor and council either at a called or regular meeting, and with or without advertising their intention to close the street. It was alleged that pursuant to this authority the mayor and counsel had passed a resolution closing the street, and that the mayor, under authority of the resolution, had conveyed the interest of the city in the street to the adjacent landowners, the north half being conveyed to the defendant as one of the adjoining owners. The petition prayed for the passage of an order relieving the petitioner from complying with the decree, and also for general relief. The defendant appeared, and filed demurrers, both general and special, and also answered. The special demurrer alleged that the petition was defective, because there was nowhere set out therein the petition, orders, and decree in the original case, which were referred to in the petition in the present proceeding. The general demurrer alleged that the petition set forth no cause of action, and no right to the relief prayed for, and constituted no defense to the order requiring the removal of the obstructions; and also attacked the act authorizing the closing of the street as unconstitutional and void. The grounds of this attack, as set forth in the demurrer, were that the act sought to take private property of the respondent and give it to the movant, a private corporation, for its own private use, without compensation, and violated those provisions of the Constitution of this state which declare that "protection to person and property is the paramount duty of government and shall be impartial and complete"; that "no person shall be deprived of life, liberty, or property except by due process of law"; that "private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid"; that "no law impairing the obligation of contracts, or making irrevocable grants of special privileges or immunities, shall be passed"; that "the General Assembly shall not, by vote, resolution or order grant any donation or gratuity in favor of any person, corporation or association"; that "all rights, privileges and immunities which may have vested in or accrued to any person *** under any judgment, decree or order, or other proceedings of any court of competent jurisdiction in this state heretofore rendered shall be held inviolate by all courts before which they may be brought in question, unless attacked for fraud." The demurrer also set up that the act was in violation of those provisions of the Constitution of the United States which declare that "no state shall pass any law impairing the obligation of contracts," "no person shall be deprived of life, liberty or property without due process of law," nor "shall private property be taken for public use without just compensation"; that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States," nor "shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." The demurrer closes with a general averment that the act violates both the Constitutions of the United States and of the state by providing that the private property of the respondent may be taken for a private use of the movant. The answer alleged that the respondent had never had any opportunity to "attack" the legislative act, no notice of such act having been published as required by law; that one of the counsel for movant was also a member of the General Assembly which passed the act, and that the case was pending in the Supreme Court at the time the act was passed; that the defendant had vested rights under the decree, which had never been attacked for fraud or set aside, and it was beyond the power of the General Assembly to interfere with such rights--one of them being the right of access from the street to his property; that the decree, being rendered by consent, was, in effect, a contract between the parties. The answer attacked the act as unconstitutional upon the same grounds as were set forth in the demurrer. Attached to the answer as exhibits were those portions of the record in the original case which the special demurrer alleged were not set forth in the petition. The motion came on for a hearing, and the court, after holding that the petition in the original case was a part of the record in this case, heard evidence consisting of a certified copy of the resolution of the mayor and council, passed subsequently to the act of the General Assembly, authorizing the closing of Hansell street, and providing for a conveyance of the city's interest therein to the adjoining landowners; it appearing from the resolution that the authority conferred by the act had been exercised, in the terms of the act, by resolution adopted by unanimous vote of the mayor and council. There was testimony of the president of the Marietta Chair Company, and also of the mayor of the city, from which it appeared that there was no collusion between the Marietta Chair Company and the city authorities in reference to the matter. It also appeared that the mayor was the guardian of a minor ward, who owns stock in the Marietta Chair Company, but that he held no stock in his own right. Henderson objected to the closing of the street, and nothing was paid by the Marietta Chair Company for the relinquishment executed by the city. The pleadings in the original suit and in the application to enforce the decree were all introduced in evidence. The judge reserved his decision, and at a subsequent date passed an order which merely declared that "the application and motion is hereby refused." To this judgment the Marietta Chair Company excepted.

N. A Morris an...