City of Atlanta v. Holliday, 96 Ga. 546

City of Atlanta v. Holliday

96 Ga. 546 | Ga. | 1895

Atkinson, Justice.

The statement of facts contained in the official report is sufficient to a clear understanding of the questions made in this case.

*5531. A municipal corporation is a minor State. Through its proper officials, it exercises those attributes of sovereignty which the legislature, for the convenience of the State at large, in the administration of purely local affairs confers upon such a corporation. It possesses the power to legislate within certain boundaries touching the personal and property rights of citizens resident within its limits. It may tax or seize to public uses the private property of the citizen, under the limitations imposed by its charter. Necessarily, in dealing with the complex questions which from time to time arise in the administration of public local affairs, a broad discretionary power must be exercised by it touching such matters. The maintenance of public highways, of sewerage, of systems of water-works and the like are subject to the municipal control according to the wise discretion of the municipal authorities. Liberal presumptions will be indulged in favor of the acts of municipal .authorities acting within the range and scope of their power. The law invests them with this discretion, but it invests them with no arbitrary power to be capriciously •exercised. As long as an official public act can be upheld as being within the exercise of a discretionary power conferred by the charter, the will of this legislative body is supreme, and the courts have no power to interfere. But if, under the guise of a public authority, a municipal body should so legislate, and so execute the laws framed by it, as to deprive any citizen, unheard, of a substantial right, either of person or property, such citizen is not without remedy, but may appeal to the courts for redress of an injury committed, or for remedy against an impending wrong. To justify interference upon the part of the courts, however, it must appear that the municipal corporation has passed the boundary of legislative or judicial discretion, and is exercising its municipal powers arbitrarily to the injury and oppression *554of the citizen. If such a case be made, we know of no-reason why the courts should not interfere. There is. certainly none under our system of government, where no man, however humble he may be, can be deprived of life, liberty or property at the arbitrary will of the State, and against the law of the land.

2, 3. Where the fee in the street itself is vested in the city authorities, as was the case in Castleberry v. City of Atlanta, 74 Ga. 164, an individual acquires no such ptersonal right in the preservation of shade-trees standing thereon as would enable him to interfere by injunction with the city authorities in the exercise of a discretionary power of removing such trees as obstructions upon the public streets. He has a right to the maintenance of the street as a public highway, unobstructed,, but he has no legal right to the continuance in the street of a shade-tree after the city authorities have concluded to remove it as an obstruction. In such cases, the control of the streets by the city authorities is absolute. In the present case, however, it js conceded that the fee to-that portion of the street and sidewalks in controversy is vested in the abutting lot owners. The city has upon them an easement in the nature of a right of way. The city authorities, in the first instance, by virtue of the dominant servitude imposed in favor of the city by the owners of the land, would have had the right to appropriate absolutely the entire width of the whole street to-the uses of a public highway, removing therefrom all shade-trees or other obstructions that might have been therein. It had the power to elect the extent to which, this servitude should be imposed, and that part of the> street not absolutely appropriated by the city under its. easement as a right of way, remained in the abutting-lot owners by virtue of their ownership of the fee. When,, therefore, the city authorities, upon the opening of this, street, allowed these trees to remain, that portion of the *555street actually covered by their trunks was unappropriated by the city and remained in the lot owners. The trees growing upon those portions of the street not appropriated, were the private property of the lot owners, but held subject to the exercise by the city of its right to extend its dominant easement over the ground occupied by them, whenever, in the judgment of the city authorities, it became necessary for the public necessity or convenience that this be done. If, to meet any demand of public convenience or necessity, the city authorities, in their discretion, saw proper to cause the removal of these trees, by appropriate proceedings, this might be done. But to justify such an act, there must be a public necesssity. Private property may not be taken for public uses upon mere considerations of public convenience. The public convenience which will justify such a proceeding must amount to a public necessity, "Whether a case of public necessity arises, as we have before observed, is a matter primarily for determination by the city authorities. If they exercise a wise discretion in regard to the matter, the courts are without power to control them. In the present case, aside from all considerations of sentiment, it Avould seem to us that the circuit judge was fully justified in granting the injunction sought, to operate until the question of public necessity can be properly determined. For many, many years these trees had stood upon the sidewalks in such a position as not to interfere Avith or impede public travel. They were ornamental, added greatly to the value of the homes of these abutting lot owners and to their enjoyment of these homes. They had a private personal interest in retaining them. According to the admissions contained in this record, they owned the land upon which these trees grew. The municipal authorities concluded to remove them. Upon the question as to whether that removal Avas justified upon grounds of public ne*556cessity, these complainants were not heard, nor given an opportunity to be heard; and when challenged in regard to their right so as to proceed, the municipal authorities seek to justify their conduct, first, upon the ground they had so decreed it, and second, that they were not answerable to the citizen for the wisdom or propriety of that decree. We do not agree to this proposition, and do not concede to the municipal authorities a purely arbitrary power in dealing with the public streets where the interests of a private individual are likely to be affected. The next contention is, that even though the official act of the authorities was subject to challenge by an individual whose property rights were being invaded, yet the pi’oposed action of the municipal authorities was within the. exercise of a discretionary power; that they had exercised a wise discretion in' regard to this matter, and therefore were not subject to control by courts of equity. It was further contended by the municipal authorities that the roots from these shade-trees were likely to disturb the even surface of the newly laid sidewalk. It appears that the particular trees, to enjoin the removal of which this suit was brought, grew at a place where, in grading the street, it had been filled up several feet, so that the roots of the trees necessarily remained a long distance below the surface of the sidewalk, at too great a distance to produce the injury apprehended by the city authorities; and we think the circuit judge rightfully held that this circumstance presented no such consideration of public necessity as would justify the removal of the trees. Upon the entire evidence submitted, the circuit judge does not seem to have taken the views maintained by the city; else he had denied the injunction. Granting the injunction, we are simply called .upon to say whether in so doing, under the evidence so submitted, he abused his discretion. It appears from the record in this case that *557the trees in question are so situated as not to amount in any sense to an obstruction of a public highway. It appears that they are situated in a narrow vacant space between the outer curbing of the driveway of the street and the outer curbing of the sidewalk. At all events, along this street there have been placed a great many telephone, telegraph and trolley-poles; and the proposition is to remove these trees upon the ground of public necessity as obstructions to travel, and to permit the poles mentioned to remain. In other words, a shade-tree is regarded as an obstruction, when a bare pole, not quite so large in circumference as the shade-trees, but very much less ornamental, is not regarded as an obstruction to travel. Doubtless this paradox found lodgment in the judicial mind; and when the circuit judge came to inquire as to what motive influenced the public authorities to their action in the premises, he concluded that there was no real public necessity for the removal of these trees; that the measure was purely arbitrary, hurtful to the citizen, and with no corresponding advantage to the public. This is the view justified by the evidence as we find it in the record, and we presume that upon these considerations the injunction was granted. Doubtless the circuit judge held as we do, that courts of equity engage with great reluctance in the regulation of matters which appertain to the municipal conscience, but the apparent harshness of the present proceeding we think makes the extreme case which justifies judicial interference. Judgment affirmed.