99 Ga. 462 | Ga. | 1896
Section 213 of the charter of the City of Atlanta provides, "That said Mayor and General Council shall also have full power and authority to assess one third of the cost -of grading, paving, macadamizing, constructing side-
At the time the improvements were projected out of which the assessments complained of in the present case subsequently arose, Butler street was unpaved, except for a short distance south of Decatur street connecting that street with Capitol avenue. That portion of Butler street extending northward from Decatur street, and between
Two separate applications were granted by the mayor and council, one of them authorizing the laying of belgian block pavement between Decatur and Jenkins streets, and the other authorizing the laying of a pavement to be constructed of vitrified brick between Jenkins street and Edge-wood avenue. Between Jenkins street and Edgewood avenue there are three squares fronting on Butler street on the eastern side of that street; on the western side there .are two squares. The total frontage upon Butler street between Jenkins street and Edgewood avenue is 1,368 feet. The petition upon which the projected improvement was authorized to be made was signed by the Southern Medical College, and by the City of Atlanta, by and through its mayor, who, in pursuance of ■a resolution of the council authorizing him to do so, signed on behalf of the city, the city itself owning the property ■occupied by the Grady Hospital, which is one of its public institutions. The total number of front feet represented "by the persons signing said petition was 635, of which the Grady Hospital property represented 300 feet. An ordinance was passed by the mayor and council, authorizing the execution of the projected plan of improvement, and authorizing an assessment against the abutting property owners respectively, each according to his frontage upon the .street, of one third the cost of the improvement. The city
1. In determining whether or not there is error m the judgment, we will first consider section 213 of the charter as it bears upon this subject. Independently of the consent of the citizen who may own property abutting upon a public street, whenever, in the discretion of the mayor and council, as a matter of public convenience; it becomes necessary to improve a public street, this may be done, provided the expense be defrayed out of the general public fund appropriated by law to that purpose; but when it is sought to charge the owner with a portion of the expense of such public improvement, the authority of the mayor and council is limited to such cases as those in' which persons owning one third of the frontage on such street shall by petition request the improvement to be made. This is the proviso attached to the power conferred by section 213 of the charter. The contention of the complainants in the present case was, that the presentation of such a petition was indispensable to the exercise of this jurisdiction by the mayor and council; and we think the language of the act does not admit of a doubt as to the correctness of this contention. It is the one condition pre-*
2. It is insisted, however, that the ordinance is good under sections 236 and 237 <of the charter. It will be readily seen, from an examination of those sections as they are hereinbefore stated, that neither of them authorizes the construction of the projected improvement. From Decatur street to Edgewood avenue was a greater distance
3. It is urged, however, that they should be treated as separate ordinances, 'and that, treating filie ordinance first passed as legalizing the construction of the pavement from Decatur to Jenkins street, the second ordinance, covering the distance between Jenkins street and Edgewood avenue, ivould fall within the provisions of section 237 of the charter. It will be seen, by reference to section 237 of the charter, that where a projected improvement does not cover . more than four squares, and it will connect a portion or portions of the street proposed to be improved with a street or alley already improved, or will connect an improved portion of such street or alley with another improved portion of such street or alley, the city has the authority to make the improvement; and it is urged, inasmuch as the improvement under the first ordinance was completed before the improvement under the second ordinance was commenced, that therefore the second ordinance was a valid authority for the projected improvement. We do not think this contention is sound. The power of the mayor and council is dependent, not upon circumstances which may arise after they have entered upon a work of public, improvement, but upon the conditions as they exist at the time steps are taken to evoke from the charter authority the power
4. There are other questions made in the record, but we do not find it necessary to consider them in passing upon the legality of 'this assessment. The circuit judge committed no error in granting an injunction, and the judgment of the court is accordingly Affirmed,.