Mayor & Council Of The City Of Columbus v. Jaques

• Decision Date: 30 June 1860
• Citation: 30 Ga. 506
• Parties: MAYOR & COUNCIL OF THE CITY OF COLUMBUS. v. JAQUES et al MAYOR & COUNCIL OF THE CITY OF COLUMBUS et al. v OLIVER, Solicitor-General ex rel
• Court: Georgia Supreme Court

30 Ga. 506

MAYOR & COUNCIL OF THE CITY OF COLUMBUS. v. JAQUES et al MAYOR & COUNCIL OF THE CITY OF COLUMBUS et al. v OLIVER, Solicitor-General ex rel

Supreme Court of the State of Georgia

JUNE TERM, 1860.

In Equity, in Muscogee Superior Court. Decisions by Judge Worrill.

These two cases, relating to the same subject-matter, and involving the same facts and legal questions were argued and decided together.

The object of the bills—one filed by Jaques and others, the other by the Solicitor-General, ex rel—was to enjoin the City Council of Columbus from the erection of a new market house in the course of construction, in Oglethorpe street in said city.

Complainants, among other things, allege that they are citizens and tax-payers of the city of Columbus; that said city is largely indebted; that the Council have employed Goetchins & Hodges, contractors, to build a new market house in said city at heavy cost; that the erection of said market is an obstruction in and to the streets of said city, and is a nuisance, and that the appropriation of money for said purpose violates the 7th section of the Act of 1845, which provides that no order or resolution for the payment of money, etc., exceeding three hundred dollars, except for the ordinary expenses of said city, shall have any force or effect, unless said order or resolution be passed by a majority of the whole board at two successive meetings.

It was upon the ground of a violation of this provision of the Act of 1845 that Judge Worrill granted the injunction in the first named case. To which order, counsel for defendants excepted.

In the second named case, after argument, he granted the injunction, and counsel for defendants excepted, and assigned for error—

1st. That the Court had no jurisdiction.

2d. That the Solicitor-General has no power or authority to file said bill.

3d. That the injunction was improperly granted.

John Peabody, Johnson & Sloan, for plaintiffs in error.

B. A. Thornton, W. Williams, Blandford, contra.

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

Two bills were filed against the Mayor and City Council of Columbus.

One by the Solicitor-General, for the State of Georgia, on the information of a large number of the citizens and taxpayers of the city of Columbus, to enjoin the Mayor and City Council from the erection of a large building for a market-house, with a hall above, to be let for concerts and exhibition-, which they (the City Council) had contracted for, and com templated erecting in the centre of Oglethorpe street; which is alleged to be one of the most public thoroughfares and commonly used streets in the city, and that such intended building was an obstruction thereof, in violation of the charter of said city, and of the rights of the citizens of said city, and of the citizens of the State of Georgia, to the free and uninterrupted use thereof, for trade, travel, etc., as a public highway. The Coust, on a hearing, sanctioned the application, and ordered an injunction to issue. To this decision the Mayor and City Council excepted.

The other bill was filed by the complainants therein, as citizens and taxpayers of the city, alleging the additional ground, that the contract for the erection of said building was void, and ought not to be enforced as against the taxpayers, because it was in violation of 7th section of an Act of 1845, that provides, that no order or resolution for the payment of money exceeding $300.00, except for the ordinary expenses of said city, shall have any force or effect, unless said order or resolution be passed by a majority of the whole Board of the City Council of said city at two successive meetings thereof. The bill alleged that the contract had not been passed by two successive meetings, as required by the Act. This injunction was allowed by the Court, and upon an application to dissolve, the motion was not only refused, but the Mayor and City Council ordered to pay the costs of the whole of the proceeding. This judgment was also excepted to. Subsequently, or perhaps at the same time, the injunction was so far modified as to allow the defendants to go on with their contract or make a new one, provided such contract should subsequently be passed upon and approved by a majority of the whole board at two successive meetings, in terms of the Act. It is conceded the City Council has subsequently complied with the law, and that the injunction, in consequence, has ceased to be effective. The only practical question for our consideration, therefore, is that of the judgment of the Court taxing the defendants in the bill with costs and directing execution to be issued and levied for that purpose.

i. In this there was error. The costs in that behalf, as in all other cases, must abide the result of the final trial of the cause, and so that judgment must be reversed on that ground.

Was the Court right in granting the injunction on the bill filed by the Solicitor-General on the information of the citizens and taxpayers, on the grounds therein alleged?

To understand fully the force of this application, it is necessary to advert to the charter of the City of Columbus, and various additional amendments thereto; by different Acts of the Legislature, in which the lands on which the city is built was granted to the city, and the powers conferred therein— first in Commissioners, and subsequently in the Mayor and City Council. The first Act on the subject was passed on the 24th December, 1827, of which the following is a copy:

AN ACT

To lay out a trading town, and to dispose of all the lands reserved for the use of the State near the Coweta Falls on the Chattahoochee River, and to name the same.—[Assented to Dec. 24, 1827, Daw. Comp. 470.]

1. Be it enacted, etc. That His Excellency the Governor shall, immediately after the passage of this Act, appoint five commissioners to select the most eligible site, and cause to be laid out and distinctly marked on the reserve aforesaid a town, upon such plan as they may devise and approve, having special regard to the future commercial prosperity of said town and the health of its inhabitants.

Sec. 2. That said commissioners, in the execution of the duties by this Act assigned them, shall lay out a square or an oblong square fronting the Chattahoochee River of twelve hundred acres, as a reservation for the common and town of Columbus, within which square they shall lay out not less than five hundred building lots of half an acre each, with an appropriate number of streets, alleys, and a suitablenumber of reserved squares for public buildings, etc.; secondly, one square within the town and common reserve of ten acres shall be laid out and appropriated to and for the use of the county of Muscogee, as a site for their public buildings, with the privilege of selling so much of the said ten acres as the commissioners of the courthouse and jail of said county may deem proper to aid them in building a courthouse and jail; but in the event of the commissioners of the courthouse and jail selecting some other site than the town of Columbus for their public buildings, then and in that case the aforesaid lot of ten acres shall revert to, and become again vested in the State.

Sec 10. That the said town shall be called and known by the name of Columbus.

Under this Act, it seems that the commissioners therein named laid off the city of Columbus into streets, lots, squares', etc., as they were authorized to do, and as they exist at this day. On the 19th December, 1828, the Legislature passed another Act, of which the following is a copy:

AN ACT

To incorporate the town of Columbus, in the county of Muscogee, and to provide for the election of am Intendant and Commissioners for the same.—[Assented to 19th December, 1828, Daw. Comp. 474.]

Sec 3. And be it further enacted, etc., That the Intendant and Commissioners shall in nowise have power to alter the, plan of said town by shutting up streets or otherwise, nor to permit any dwelling-house or other buildings to be put on any of the streets or common of said town under any lease or leases, or in any other way.

Sec. 4. That the Intendant and Commissioners of said town shall have power to lease the common and other property of the town for any term: not exceeding three years at any one time.

Sec. 5. That the Intendant and Commissioners shall have power to pull down and destroy, as a nuisance, all obstructions in the streets of said town, and all dwelling and other houses on the common and unsold lots within the cor-porate limits of said town, which shall embrace the town and common belonging thereto.

On the 21 st December, 1831, the Legislature, by Act, authorized the Intendant and Commissioners of Columbus, and their successors in office, "to lay off and lease any lots in said town, below Thomas street, for the purpose of building wharves only, for any number of years, as they may think proper, not exceeding twenty, for the use and benefit of said town." By an Act of 23d December, 1835, "The election of a Mayor, in lieu of the Intendant and six members (which number, by an Act of December 25th, 1845, was increased to twelve Aldermen) of the City Council, to be known as the Mayor and Council of the city of Columbus, " with power, by sec. 12, "to pass all by-laws necessary for the government of said town which do not conflict with the Constitution and laws of the State of Georgia, and of the United States, reference to which alone shall be had in the adjudications upon this Act." By an...