Mayor And Aldermen Of Savannah v. Knight

• Decision Date: 24 February 1931
• Docket Number: No. 7899.,7899.
• Citation: 157 S.E. 309,172 Ga. 371
• Parties: MAYOR AND ALDERMEN OF SAVANNAH et al. v. KNIGHT.
• Court: Georgia Supreme Court

172 Ga. 371

157 S.E. 309

MAYOR AND ALDERMEN OF SAVANNAH et al.

v.KNIGHT.

No. 7899.

Supreme Court of Georgia.

Feb. 24, 1931.

Syllabus by the Court.

The principle under which local assessments for street improvements can be levied upon the lots of owners of abutting property is that such improvements, aside from the advantage resulting to the community at large, will result in some special advantage to the owners in which the general public do not participate.

Syllabus by the Court.

Such assessment cannot be levied for any amount in excess of the benefits re ceived by the owner from the improvement.

Syllabus by the Court.

The mayor and aldermen of the city of Savannah are authorized by the charter of that city to repave streets where the pavement is "worn out and no longer serviceable." Under this authority the city is without power to repave a street the pavement which is not worn out and is still serviceable.

Syllabus by the Court.

Ordinarily, property should not be assessed for an improvement where improvements theretofore made are sufficient for its needs, and no additional benefit to the owner results from the new improvement,

Syllabus by the Court.

A common carrier of passengers for hire does not have the right to conduct such private business over the streets of a city. This is a privilege which the city can give or withhold.

Syllabus by the Court.

When the pavement on a street is in good condition and serviceable for ordinary traffic, and the city permits a common carrier to operate large and heavy busses over the street for transportation of passengers for hire, whereby the pavement on the street, for the cost of which the owner of abutting lots has previously been assessed and which assessment has been paid by him, is destroyed and repavement madenecessary, if the new pavement gives no additional benefit to the lots abutting on the street so repaved, then no part of the cost of repaving should be assessed against the lots abutting thereon; but, if the new pavement adds new benefits to the lots abutting on the street repaved, over and above the benefits which owners of the lots enjoyed before the original pavement was destroyed, the amount of the assessment against the lots of the owner for the cost of such repavement should be limited to the amount of the benefits so received.

Error from Superior Court, Chatham County; Peter W. Meldrim, Judge.

Petition by W. T. Knight against the Mayor, etc., of Savannah, and others. From a judgment overruling motion to dismiss, defendants bring error.

Affirmed.

John J. Bouhan and E. Ormonde Hunter, both of Savannah, for plaintiffs in error.

O'Neal & O'Neal, of Savannah, for defendant in error.

HINES, J.

Knight was the owner of lots with a frontage of 234 feet on Harmon street, lying between the north side of Gwinnett street and the south side of Wheaton street, in the city of Savannah. This section of Harmon street had been paved with brick, and the owners of lots abutting on both sides of this street had been assessed for two-thirds of the cost of this pavement, which they paid. This pavement was entirely suited for ordinary traffic, was in good condition, and would have continued so for many years to come, had not the city permitted the Savannah Electric & Power Company to operate over said street heavy passenger busses, which, when loaded with 50 to 80 persons, imposed an excessive burden on said paving. On this account the paving on this street began to give way, the brick were displaced, and a large number of them were forced from the street upon the sidewalks. This condition was known to the city, but it permitted these busses to operate until this section of this street became so full of holes that they could no longer travel over this street. The city is now undertaking, by various resolutions and proceedings, to remove said pavement from this section of this street and to repave the same with such material as may be determined by council upon receipt of bids for such work, based upon the use of different materials, or upon information received by the director of public works, as set out in an ordinance of the city. The director of public works has notified Knight that the paving material on this street and the paving thereof has been condemned, and that the city will shortly take up the same. If such pavement is taken up and replaced the ordinance provides that two-thirds of the cost of such work will be assessed against the owners of abutting property, and the same will become a lien upon Knight's property. The pavement on this street was not worn out nor useless, was being used by the ordinary traffic of the city, and would still be in good condition had not the city abused its discretion by permitting the electric company to use this street for the purpose of transporting passengers in unusual and extremely heavy vehicles, which caused the paving on this street to give way. This action of the city is without authority of law, amounts to an abuse of its discretion, and is oppressive, in that the city permitted this street to be used by a public carrier for the purpose of carrying passengers for private gain in a manner and with vehicles which it knew would render an unusual burden upon this street and which destroyed the pavement thereon; and it is an attempt to require the owners of abutting property to make good the damage done to the street by the public carrier.

Knight filed his petition against the mayor and aldermen of the city of Savannah, the director of public works, and the Dixon Construction Company, a partnership composed of M. W. Dixon, Jr., and J. W. Bond, in which he alleged the facts above set out; and, in addition, made these allegations: The assessment for the repaving of this section of Harmon street, and the lien sought to be fixed upon his abutting lots, constitute a cloud upon his title. It is not proper that this street be repaved at the expense of owners of abutting property. It could be repaired at a sum far less than the cost of repaving the same. The mayor and aldermen have abused their discretion in condemning the pavement and in adopting said ordinance for its repavement; all being to the oppression of petitioner and others similarly situated. This street was in good condition and suitable to the uses of ordinary travel, and would still be so had the mayor and aldermen not abused their discretion by permitting this company to use unusually heavy busses on this street when they knew, or should have known, that this street was not fitted to carry the burden of these busses. Petitioner prayed that the defendants be enjoined from proceeding with the proposed repaving of this portion of this street, from assessing the cost thereof against him, from levying assessments for said paving against his lots, and for general relief. The defendants moved to dismiss the petition, because it does not set forth any reason why. equitable relief should be granted, because it is based upon a conclusion of the pleader that the mayor and aldermen abused their discretion in condemning this pavement, there being no allegation of sufficient facts to sustain said conclusion, and because the petition shows the street to be worn out, and the municipal authorities were acting within thescope of this authority in condemning this pavement.

The trial judge denied an injunction, but overruled the motion to dismiss. To the latter ruling the defendants excepted.

The mayor and aldermen of the city of Savannah are authorized by the charter of that city to repave streets whenever the same are "worn out and no longer serviceable, " and to assess the cost of such repavement against the lots which abut thereon. Acts 1887, p. 538; Acts 1921, pp. 1075, 10S0. It is likewise true, generally, that the determination of the question of the necessity of repaving a street, and of the character of the material to be used in so doing, is one primarily within the discretion of the municipal authorities; and the courts will not by injunction control such discretion, unless it has been manifestly abused to the prejudice of a complaining citizen. Regenstein v. Atlanta, 98 Ga. 167, 25 S. E. 428; Burckhardt v. Atlanta, 103 Ga. 302, 30 S. E. 32; Bacon v. Savannah, 105 Ga. 62, 31 S. E. 127. But the question now...