The City Of Atlanta v. The Gate City Gas Light Co.

• Decision Date: 30 September 1883
• Parties: The City of Atlanta et al. vs. The Gate City Gas Light Company.
• Court: Georgia Supreme Court

71 Ga. 106

The City of Atlanta et al. vs. The Gate City Gas Light Company.

Supreme Court of the State of Georgia

SEPTEMBER TERM, 1883.

Corporations. Municipal Corporations. Charters. Constitutional Law. Streets. Laws. Estoppel. Before Judge Hammond. Fulton Superior Court. April Term. 1883.

Reported in the decision.

W. T. Newman; Hopkins & Glenn, for plaintiffs in error.

E. F. Hoge; N. J. Hammond, for defendant.

Hall, Justice.

The Gate City Gas Light Company brought suit on the equity side of the court against the City of Atlanta, the mayor of said city, and its engineer, and alleged by its bill that it was incorporated by an act of the general assembly of Georgia, approved the 4th of February, 1875; that in addition to the powers conferred on such corporations, of having and using a common seal, etc., full power and authority was granted it to make, manufacture and sell gas, to be made of coal, rosin, or other materials, for lighting the streets, public and private buildings, and other places in the city of Atlanta, and "to lay down in any and all of the streets, lanes, avenues, alleys, squares and public grounds of said city, gas pipes, and other apparatus for conducting gas through the same, and to erect therein such gas posts, burners and reflectors as may be necessary or convenient, " " only provided that the public thoroughfares shall at no time be unnecessarily interrupted or impeded by the laying down or erection thereof, and that said streets, lanes, avenues, squares and public grounds shall not be thereby injured, but shall be left in as good state and condition as they were before the laying down of said pipes, conductors, or other apparatus, and the erection of said posts."

Said complainant purchased a parcel of land in said city, in ward one (1), on land lot seventy-eight, fronting on the right-of-way of the Central Railroad one hundred feet, and running back on an alley one hundred and fifty-seven feet, joining Mrs. M. F. Parker on the north, and E. L. Jones on the south, and built thereon, in a tasteful and most durable manner and style, all the structures requiredfor its business, using over five hundred and thirty thousand bricks, and other materials in proportion.

Complainant placed in said buildings machinery and apparatus for the manufacture of gas, duplicated and of a capacity to supply a city of over one hundred thousand inhabitants.

The quality of said materials and style of workmanship cannot be excelled, and has never been equalled in the Southern States, and is open to inspection at any time.

The company has had cast mains for eight miles of streets. Fourteen car-loads of the same had arrived in Atlanta prior to the 4th of May, 1883, and the remainder was then en route for Atlanta (and part of the same has since arrived).

The company had then employed Hunnicutt & Bellingrath, of Atlanta, men skilled in such work, and responsible, to lay down said pipes, and erect said structures.

These mains are large enough to be so extended as to accommodate three hundred thousand inhabitants.

The company put extra work and expense upon its said plant. Their outlay for these Atlanta works already made is about one hundred and forty thousand dollars.

The company bona fide intends making and selling good and cheap gas to the city of Atlanta and its inhabitants, and would be now preparing therefor but for the reasons now to be stated. Being ready to begin laying its pipes and desirous of the co-operation of the city authorities of the city of Atlanta in its work, so as to avoid all misunderstandings and disagreements as to grades, etc., complainant addressed to the mayor and general council of the city of Atlanta a written request for the co-operation of their body or of the proper officer of said city in so beginning their work. The same was, on the 27th of April, 1883, referred to their city attorney and gas committee to investigate and report all facts." Said committee did, on the 7th of May, 1883, report in writing that they had fully investi-gated, and that the facts hereinbefore stated as to the purchase of land, the buildings and machinery, and apparatus therein, the piping being ready, and contract being so made to lay it down as before stated were, in their opinion, true, and which in their said report they denominated as "the petition of the Gate City Gas Light Company asking permission to lay their mains through the streets of said city."

On said 7th of May, 1883, after consideration of said report, said general council " refused " the request of complainant. Afterwards, to-wit, on the 11th of May, 1883, said company, still asserting its charter rights, but desirous of complying with all proper precautions to prevent collision with the city authorities, addressed to the city engineer, in accordance with section six hundred and twenty-one of the last revised Code of Atlanta, a written request for permission to dig streets for the purpose of laying such mains.

On the said 11th of May, 1883, said city engineer replied thereto, refusing his permission, because of the action of the mayor and general council aforesaid.

On the day last aforesaid, said company gave written notice to the mayor of said city of the foregoing correspondence with the city engineer, denied his right so to refuse, and asked whether the mayor would interfere with said company in so laying its pipes as is allowed by its charter.

Thereupon, on the 12th of May, 1883, said mayor, in writing, replied that, as the executive officer of the general council he should certainly regard it as incumbent on him to conform to the will of that body as expressed (as aforesaid) on the 7th of May, 1883, by enforcing against the company and its agents any and all penal laws or ordinances of the city of Atlanta, violated by the obstruction or interference with the streets of the city for laying mains, or excavating therein, without the permission of the mayor and general council or city engineer for such purposefirst had and obtained, by having the parties participating arrested and tried, because said mayor understood (as he said therein) the mayor and general council to be vested with the discretionary authority of granting or refusing such permission.

Complainant shows that said defendant is a public corporation, having no authority except that expressed in its charter. By its charter or act of incorporation, as amended by an act of the general assembly of Georgia, approved on the 28th of October, 1874, the "inhabitants" of Atlanta were " continued a body corporate by the name and style of the City of Atlanta, " "with power to govern themselves by such ordinances, resolutions and by-laws for municipal purposes as it may deem proper, not in conflict with this charter nor the constitution and laws of this state, nor of the United States." Code of Atlanta, §1.

By said charter the mayor and council of Atlanta elect the city engineer (Ib., 96), and other officers there named, "whose duties shall be prescribed by ordinance" (Ib., 96). He is " removable for cause, to be judged of by the mayor and general council " (Ib., 96).

By their charter said mayor and general council have power to open, lay out, widen, straighten, or otherwise change streets, fix a system of grading and draining the same, to require streets and sidewalks paved, and to close lanes and alleys. But said corporation does not own the streets of said city in fee, and has no control over them, except what is necessary to enforce such ordinances as it has made or may make, not inconsistent with the laws of said state.

Among the ordinances made by the said corporation is this:

§621. " Any person who desires to excavate any street to any extent, for the purpose of laying sewer or gas pipes, or for any other purpose, shall get permission, in writing, from the city engineer which shall specify the streets and portions thereof which are to be so excavated, and the length of time for which such permission is granted. During the time such work is progressing lighted lanternsshall be placed on either end of said excavation, and any piles of dirt or material.

"The top soil and rock, if any, shall be carefully kept apart from the clay or lower earth, and shall be replaced in as good condition as the same was before, or to the satisfaction of the engineer.

"Any person or persons violating this section, or any part thereof, shall, on conviction, be fined not more than one hundred dollars, or imprisoned not more than thirty days."

This ordinance was passed on the seventeenth day of May, 1880.

Another of said ordinances is this:

§654. "No person shall place any trash, timber, wood, glass, or other obstruction in any public street, lane, alley, or way in said city, or on any sidewalk.

"Any person who shall place any obstructions as aforesaid in any public street, lane, alley or way, or on any sidewalk, failing or refusing to remove the same within six hours after being notified by the chief (of police) or any member of the police force, or having removed the said obstruction, shall replace the same, shall, on conviction, be fined not exceeding one hundred dollars, or imprisoned not exceeding thirty days."

The mayor of said city had called the attention of complainant's solicitor to said ordinances, and hence their specific mention as aforesaid.

By an ordinance passed on the 15th of March, 1872,

" Any person or persons actually building, or about to build or repair any building, may collect and lay all such materials as may be necessary for such building or repairs in the street, lane or alley next adjoining to or in front of such building or repairs, and shall have the privilege of using one-half of the sidewalk and one-half of the street adjoining." with certain provisos as to interfering with the running of street car lines, and as to lanterns at night to prevent accidents, etc.

The mains to be laid are iron cylinders, each twelve feet long and ten inches in diameter, and other smaller...