Tuggle v. The Mayor

• Decision Date: 31 July 1876
• Citation: 57 Ga. 114
• Parties: William O. Tuggle, executor, plaintiff in error. v. The Mayor and Council of Atlanta, defendants in error.
• Court: Georgia Supreme Court

57 Ga. 114

William O. Tuggle, executor, plaintiff in error. v. The Mayor and Council of Atlanta, defendants in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1876.)

Municipal coporations. Roads and bridges. Damages. Before Judge Hopkins. Fulton Superior Court. October Term, 1875.

James H. Callaway, the testator of plaintiff in error, brought an action for damages against the Mayor and Council of Atlanta, making, in brief, the following case: Plaintiff is the owner of certain stores on Broad street. Within about sixty or seventy feet thereof is a railroad cut, across which was formerly a wooden bridge, forming a part of the street. On August 12th, 1873, *the city council entered into an agreement with the Wrought Iron Bridge Company of Canton, Ohio, by which the latter was to replace said wooden bridge with an iron one of the following description: Length one hundred and forty feet, width sixty feet, cost $14,000 00; the work to be completed by December 1st, 1873. (A copy of the agreement, bound, etc., was attached to the declaration.) Early in November defendant had the wooden bridge torn down. The materials for the new structure did not arrive until March, 1874, and during the period of this unreasonable delay the street remained impassable. Plaintiff's tenants notified him that their business was damaged by such delay, and that they would not remain unless plaintiff reduced their rents, which he was compelled to do to the extent of twenty-five per cent. thereof. On February 27th, 1874, he presented a petition to the defendant, reciting these facts, and asking that he be reimbursed the amount of rent he had lost by such delay. This petition the defendant refused to consider, thereby causing him the expense of employing counsel and seeking his legal remedy.

Defendant demurred to the above declaration. The demurrer was sustained, and the plaintiff excepted.

Julius L. Brown; A. W. Hammond & Son, for plaintiff in error.

W. T. Newman, for defendant.

BLECKLEY, Judge.

This action seems to us to be founded on a misconception of the character and functions of muncipal government. It ignores the mayor and council as agents of thought and treats them as agents of work only. It virtually denies them power to plan and manage, and grants but the power to execute. It seeks to set up courts and juries as their overseers, and to make the mode, if not the time, of effecting public improvements conform to opinion in the jury box, rather than to opinion in the council chamber. Whether a bridge of iron shall *be substituted for a bridge of wood is discretionary with the mayor and council. When and in what manner it shall be done, (so that no unlawful means be used) are alike discretionary. For the sake of a great, permanent improvement, such as an iron bridge, it is not unlawful to withdraw temporarily from use the part of the street where it is to be erected. Such a measure may, in the judgment of the mayor and council, be expedient as...