Savannah v. Mayor

• Decision Date: 16 August 1895
• Citation: 23 S.E. 847,96 Ga. 680
• Parties: SAVANNAH, F. & W. RY. CO. v. MAYOR, ETC., OF SAVANNAH.
• Court: Georgia Supreme Court

23 S.E. 847

96 Ga. 680

SAVANNAH, F. & W. RY. CO.

v.MAYOR, ETC., OF SAVANNAH.

Supreme Court of Georgia.

Aug. 16, 1895.

Eminent Domain—Doe Process of Law—Savannah Charter—Constitutionality.

1. That the charter of a city provides for the appointment by the mayor and aldermen of freeholders to assess the damages sustained by lot owners in consequence of the opening or extension of any street, with power to the mayor and aldermen to enforce the award or decision of these assessors, without providing for notice of any kind to such lot owners as to these matters, would not render the charter violative of the constitutional prohibition against depriving persons of their property without due process of law, if the charter made any provision for such notice to lot owners as would allow them an opportunity to be heard with reference to the amount of the compensation to be paid them before such assessment should become finally binding and conclusive upon them.

2. In the absence of any provision whatever for such notice in a city charter, it is unconstitutional in the respect above indicated; and a mere general declaration therein that the owner or owners of land affected by the decision of the assessors shall have the right to appeal therefrom to a jury in the superior court, without providing for any notice to such lot owner or owners of the rendition of such decision, so as to enable them to exercise the right of appeal, is too vague, indefinite, and uncertain to cure the defect in the charter.

3. As that portion of the charter now under review is unconstitutional, all the proceedings under it were necessarily void; and the court ought to have granted the injunction prayed for, and thus have restrained the further progress of these proceedings.

(Syllabus by the Court.)

Error from superior court, Chatham county; R. Falligant, Judge.

Action by the Savannah, Florida & Western Railway Company against the mayor and council of the city of Savannah for an injunction. There was a judgment for defendants, and plaintiff brings error. Reversed.

Erwin, Du Bignon & Chisholm, for plaintiff in error.

Saml B. Adams, for defendants in error.

LUMPKIN, J. All the authorities agree that, in the exercise of the power of eminent domain, the owner of property taken or damaged for public uses is entitled to be heard upon the question of compensation; and, in order that this right may be made available, he must be given such notice as will afford him a reasonable opportunity to be heard. As to this, there is no contrariety of judicial opinion. Many differences of opinion have arisen, however, as to the constitutionality of statutes, including city charters, which authorize condemnation proceedings without at the same time providing definitely for notice to property owners to be affected thereby. We have examined a large number of decisions and text-books bearing more or less directly upon questions arising upon such statutes in cases similar to the one now in hand. We shall not cite or discuss these authorities, however, for...