113 Ga. 481 | Ga. | 1901
The Atlanta Railway and Power Company, a corporation which maintains and operates lines of street-railway in the City of Atlanta, presented its petition to the judge of the superior court of Fulton county, in effect praying that a certain other corporation, the Atlanta Rapid Transit Company, which also operates lines of street-railway therein, be enjoined from constructing, in whole or in part, a particular line of railway in the streets of said city, which the Transit Company claims it has the legal right to construct and operate under the laws of the State and the ordinances of the City of Atlanta; and also from in any manner interfering with the railway of petitioner already laid in the streets of the city, and the appropriation of certain private property of petitioner to the uses of the defendant in connection with its proposed new line. It was conceded that the question as to whether the construction sought to be enjoined was authorized by law depended, in a large measure, on the validity of a certain ordinance of the City of Atlanta, which by its terms purported to grant to the Atlanta Rapid Transit Company, under certain conditions, authority "to construct, electrically equip, and operate a line of single or double track street-railway over the following route, viz.: Commencing on Atlanta avenue, at a point south of about the middle of Grant’s Park, running thence west to Cherokee avenue, thence along Cherokee avenue and Thomas street to Woodward avenue, thence west along Woodward avenue to Hill street, along Hill street to Hunter street, and along Hunter street to Whitehall street, with the right to move the tracks of the Atlanta Railway and Power Company on Hunter street, between Frazier and Pryor street, to one side of the center of the street, so as to permit the building of a single track on the other side of the center of the street bétween these points.” It was contended by the plaintiff that the ordinance was void because it was not legally adopted; that what is described in it as Cherokee avenue is not a public street, but is the private property of the plaintiff; that the construction of the apparently authorized line would conflict with the plaintiff’s rights under a contract between it and the defendant as to the use of the street-railway tracks on Whitehall street, from Hunter to Alabama street, and with its rights as to its tracks on Hunter street, between Frazier and Pryor streets. The brief of evidence is voluminous; such parts of it as may be necessary will be hereafter referred to in con
It was provided in the rules for the government of the mayor- and general council, established by that body, that in all cases of a tie the mayor or presiding officer shall cast the deciding vote, but-at no other time or under no other circumstances shall he be permitted to vote; and that no alteration or suspension of any rule shall take place without the consent of two thirds of the members present. It appears from the rules adopted by the aldermanic board that regular meetings of that body should be held on Thursdays-following the regular meetings of the mayor and council. In relation to the passage of the ordinance the validity of which is under consideration, it appears from the evidence that the Transit Company, on November 19, 1900, filed a petition asking for the right-to construct and operate by electricity the line of railway named, with the right to move the tracks of the Power Company on Hun
It appears also, that a custom had existed in the City of Atlanta for a number of years, under which the newly elected mayor, aldermen, and councilmen did not qualify and enter upon the discharge of their duties until after a meeting was held by the retiring mayor and general council, on the first Monday in January of the term for which the new officers had been elected. Under these facts the contention of counsel for plaintiff in error is, that although the ordinance was passed originally with due formality and regularity, both by the board of aldermen and councilmen, it never became a legal ordinance, because, at the meeting when the aldermen voted upon it, a notice of a motion to reconsider was given, and that notice had the effect of preventing the ordinance from ever becoming a legal act on the part of the city government, because the board of aldermen could not thereafter hold a regular meeting during their term of office, inasmuch as the day for holding such regular meeting, under the rules, came at a time when the terms of the old board had expired and the new board of aldermen was in office; and that the meeting of the board of aldermen of January 7 was not a regular meeting, and the motion to reconsider could not then have properly been made. We do not assent to this conclusion. When the ordinance was passed with due formality and regularity by the council, and the action of that body had been concurred in by the board of aldermen, the ordinance thus acted on, for the time being, at least so far as the two boards could make it so, became an enacted measure. The only effect that notice of a motion to reconsider could have had on the measure thus adopted was to postpone its transmission to the mayor for his action, and to hold it up until the next regular meeting, pending the right of the aldermanic board to reconsider its action in passing it, if it saw fit. It did not otherwise affect its legality; and unless the action which had been had was reconsidered at the next meeting, the measure thereafter stood as the action of the board of aldermen on that subject. If the contention of counsel be correct, it is.possible
There is evidence in the record tending to show that the officers of the plaintiff had full knowledge that the City of Atlanta had located Cherokee avenue as a public street; that the engineer of - the company moved the track of plaintiff and supervised the whole work; that the city formally ordered it opened as a street, and bought twenty-five feet of land to be added to the strip originally occupied by the plaintiff, to make a street; that it spent money for sewers, curbing, etc.; and, lastly, that it had been continuously used as a street. An examination of the record in the case discloses that the officers of the plaintiff believed that Cherokee avenue was originally intended to be opened as a pleasure drive contiguous to the park; yet when this use, which was consented to, became enlarged into all the general uses of a street, as some of the evidence shows, they should have interposed, and have asserted any rights the company had. They permitted the City of Atlanta to declare and open it, together with other land contiguous to it, as a public street, to spend sums of money improving the whole as a street; and these acts induced persons to believe it to be a public street, and, acting on such belief, to erect houses fronting thereon, all of which appears to have been done without a protest; and the further fact appears that the whole of said land has been continuously so used by the public as one of the streets of the city, and that its discontinuance at its present width and location would work inconconvenience to the public.- The conclusion is inevitable that the trial judge was fully warranted in ruling that Cherokee avenue
In our opinion no error was committed in refusing to grant the injunction. Judgment affirmed.