Nagle v. The Citycouncil Of Augusta

• Citation: 5 Ga. 546
• Decision Date: 30 November 1848
• Docket Number: No. 63.,63.
• Parties: Augustus G. Nagle, plaintiff in error. vs. The CityCouncil of Augusta, defendant.
• Court: Supreme Court of Georgia

5 Ga. 546

Augustus G. Nagle, plaintiff in error. vs. The CityCouncil of Augusta, defendant.

No. 63.

Supreme Court of the State of Georgia

NOVEMBER TERM, 1848.

Certiorari, in Richmond Superior Court, decided by Judge Holt, September Term, 1848.

By the third section of the Act incorporating the city of Augusta, it was provided that the City Council "shall also be vested with full power and authority, from time to time, under their common seal, to make and establish such by-laws, rules, and ordinances, respecting the harbor, streets, public buildings, workhouses, markets, wharves, public houses, carriages, wagons, carts, drays, pumps, buckets, fire engines, the care of the poor, the regulation of disorderly people, negroes, and in general, every other by-law or regulation that shall appear to them requisite and necessary, for the security, welfare, and convenience of the said city, or for preserving peace, order, and good government within the same."

On 26th April, 1848, the City Council passed an ordinance, providing that "no wagon, dray, or other vehicle, employed in the transportation of goods, wares, merchandize, or produce of any kind, shall be permitted to pass through any of the streets of the city, which shall carry a greater weight, exclusive of the weight of such wagon, dray, or other vehicle, than is allowed by this ordinance. The load of a four or six horse wagon shall not exceed five thousand pounds in weight. That of a two horse wagon shall not exceed two thousand five hundred pounds, and that of a dray shall not exceed fifteen hundred pounds in weight. Provided, always, that wagons, drays, and other vehicles, may lawfully exceed these weights, when their load consists of one article or package, or of wood, lumber, or brick, and provided, also, that all licensed drays may still continue to carry four bales of cotton.

"Any white persons who shall be convicted of a violation of this ordinance, shall be lined in a sum not exceeding twenty dollars, for each and every such violation, &c."

Augustus G. Nagle, for two several violations of the above ordinance, was fined for each the sum of twenty dollars.

A certiorari was applied for on three grounds of error.

1st. That said ordinance was contrary to his constitutional and legal rights.

2d. That it transcended the authority of the City Council In the premises, and was not authorised by the charter of the city. 3d. That said ordinance made unjust and illegal discrimina tions between the rights of citizens in passing the public highways of the city.

Upon bearing the certiorari. the Court below dismissed the same, sustaining the validity of the said ordinance.

To which decision exceptions were filed, and the same is now alleged to be erroneous.

E. Staines, and T. P. McGrath, for plaintiff in error.

1st. The City Council have transcended their authority In the passage of the ordinance, as it is an act made to operate on individuals, and not for the public good of the city. 1 Black. Com. 126. (Def. of Civil Liberty,) See note, Ibid. Con. of Geo. Hotchk. 60.

2d. The ordinance, may, therefore, be said to be contrary to the constitutional and legal rights of the plaintiff.

3d. The ordinance makes unjust and illegal discriminations in the rights of citizens to pass the public streets of the city. 12 Mod. R. 6S7. 1 Kent Com. 448. 1 Bay, 252.

A. J. Miller, for the defendant in error.

The ordinance in question is legal and valid. Act of 31st Jan.

1798. 1 McMullan's Rep. 323. 1 Richardson's Rep. 364. 15 Ohio Rep. 625.

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

Had the City Council of Augusta, the power and authority, under their charter and the laws of the land, to make the ordinance specified in the record? We are of the opinion, they had such power and authority. By the 22d section of the 1st article of the Constitution of this State, it is declared, "The General Assembly shall have power to make all laws and ordinances, which they shall deem necessary and proper, for the good of the State, which shall not be repugnant to this Constitution." Prince, 905. The same provision was in the Constitution of 1789. Mar-bury and Crawford's Dig. 15. The General Assembly, having the power to make all laws and ordinances which they mightdeem necessary and proper for the good of the State, on the 31st January, 1798, delegated to the City Council of Augusta, "full power and authority, from time to time, under their common seal, to make and establish such By-Laws, Rules and Ordinances respecting the streets, wagons, carts, drays, &c. that shall appear to them requisite and necessary, for the security, welfare, and convenience of the said city, or for preserving peace, order, and good government within the same; provided, such by-laws shall not be repugnant to the Constitution, or the laws of the land." Marbury and Crawford\'s Dig. 130. The ordinance complained of, regulates the weight which wagons, and other vehicles employed in the transportation of goods, wares, merchandise, or produce of any kind, shall carry through...