Markham v. The Mayor

• Citation: 23 Ga. 402
• Parties: William Markham, plaintiff in error. vs. The Mayor and Council of the City of Atlanta, defendant in error.
• Decision Date: 31 August 1857
• Court: Supreme Court of Georgia

23 Ga. 402

William Markham, plaintiff in error. vs. The Mayor and Council of the City of Atlanta, defendant in error.

Supreme Court of the State of Georgia

AUGUST TERM, 1857.

In Equity, in Fulton Superior Court. Decision by Judge Bull, June, 1857.

This was a bill filed by William Markham, against the Mayor and Council of the City of Atlanta.

The bill states, that complainant purchased a lot in the city of Atlanta, on Whitehall street, in the year, 1851.

That in 1852, he erected on said lot, a large brick building at a cost of about $3,500, and arranged the same for two store rooms opening and fronting on Whitehall street; the floor and doors being accommodated to said street at the elevation of the sidewalk, as it then was; that before he built said house, he consulted one of the members of Council, being Chairman of the Committee on Streets, as to how said building should be made to fit said street, with reference to the floor and doors, and that said member gave to complainant his ideas on the subject, which were adopted in constructing said building; that said building is now worth $5,000, and the stores rent for $800 per annum.

The bill further states, that the Mayor and Council of said city, are about to dig down said street, in front of complainant's building, and change the elevation and level of the same, so as to place or have said street, in front of said building, thirty inches below the door-sill and floor of one store-room, and about eighteen inches below the sill and door of the other store; that should said excavation and alteration in said street be made, said stores will be greatly injured and lessened in value, as business houses, to the amount of at least $800, and which can not be prevented at a cost less than about $500, ifindeed it could be prevented at all, without pulling down said building and putting it up anew, at an expense greatly exceeding that of the original cost.

The bill prays that said Mayor and Council, be enjoined and restrained from making said alteration or any other of similar character, etc.

The Judge refused to sanction the bill and grant the injunction, and counsel for complainant excepts to said decision as erroneous.

Overby & Bleckly, for plaintiff in error.

Ezzard & Collier, for defendant in error.

By the Court. —Lumpkin, J., delivering the opinion.

We are clear, that the Circuit Judge was right in refusing to grant the injunction prayed for in this case.

By the 5th section of the Act incorporating the city of Atlanta, approved the 29th day of December, 1847, it is provided, that "the Mayor and Council of said city shall have full power and authority to pass all by-laws and Ordinances respecting the streets of said city, to open and lay out the same, etc., and every other by-law, regulation or ordinance, that shall appear to them necessary and proper for the security, welfare and interest of said city or for preserving the peace, health, order and good government of the same."

On the 30th of May, 1856, the Mayor and Council passed the following ordinance: "Resolved, that the Committee on Streets, in conjunction with the city surveyor, be and they are hereby instructed to locate the grade of the sidewalks on either side of Whitehall street, and the business portions of Alabama, Marietta, Decatur and Peach Tree streets, to make the same of the uniform width of ten feet, and notify the owners of lots to cause the same to be paved as soon as practicable, with smooth flag stones, similar to that in front of Messrs. J. & J. Lynch's and S. Frankford's stores, or withhard burnt brick, and if not done by the owners of lots, prior to the first of August next, the same to be done by the committee at the expense of the owners."

The Chancellor was called upon by Mr. Markham, to restrain the agents of the corporation from changing the grade of the sidewalks of Whitehall street, for the reason that said change would render ingress and egress to and from his store more difficult, and thereby injure his business, by driving away customers.

He does not charge that the improvement is not necessary for the welfare of the city, or that said walk is capriciously and unskillfully made. We concede, and there can be no doubt upon this point, that the power of graduating and leveling streets and sidewalks ought not to be capriciously exercised. Like all other power it is susceptible of abuse. But it is trusted to the inhabitants themselves, who elect the corporate body, and who may therefore, be expected to consult the interest of the town. I repeat, this is not the complaint. The ordinance itself is reasonable and valid, and is perhaps no more than a proper exercise of that general legislative power usually vested in municipalities for the good of the city, and the power granted over the streets by the charter, which includes the power of grading and regrading the sidewalks, is a continuing power in the corporation to be exercised whensoever and as often as the interest of the city makes it necessary, and so far from the direction or advice given by one of the councilmen constituting anything like a binding contract in this case, we apprehend that the gradation or regradation of the streets by the corporation, can not be considered in the nature of a compact with the proprietors of the property fronting thereon; that it shall always continue unchanged, and that any such agreement to fetter or clog the exercise of this power would be void. At most, it could only entitle the holder to compensation. But we do not understand that what took place in this case amounted to a compact, even if the corporation had the power tomake any pledge that the grade should always continue as it then was.

The identical question here made, was before the Circuit Court for the District of Columbia, in September, 1853, and the doctrines here stated, affirmed by that Court, in the case of Smoot against the Corporation of Washington. It will be found reported in the National Intelligencer of that date. This case, it seems was never prosecuted any further. In a recent case of precisely the same character, an appeal has been taken to the Supreme Court, which has not yet been argued. I believe a similar question is now pending before the Court of Claims. I have before me the brief of Messrs. Badger & Carlisle, of counsel for David Hines, claimant, and I gather...