32 Ga. App. 5 | Ga. Ct. App. | 1924
Magrill was arraigned before the recorder of the City of Atlanta on a charge of “obstructing the street.” From the evidence before the recorder it appears that the alleged obstruc
The unlawful obstruction of a public street being a nuisance, there is no merit in the contention that the defendant was charged with one offense and convicted of another. Hendricks v. Carter, 21 Ga. App. 527 (2) (94 S. E. 807), and citations. “If the nuisance complained of exists in a city having a population of twenty thousand or more, the police court of such city, whether known as mayor’s or recorder’s court or otherwise designated, shall have jurisdiction to hear and determine the question of the existence of such nuisance, and, if found to exist, to order its abatement,” etc. Civil Code (1910), § 5331.
The license introduced in evidence by the defendant does not support his contention that the city had licensed him to carry on the business of a newsdealer, much less erect or maintain an
But since the City of Atlanta.has no express legislative authority to grant to any person such use of its public streets, the license would be void and without effect even if it could and should be construed as undertaking to license the defendant to do the very thing he was doing. By section 894 of the Civil Code (1910) it is declared that, “Without express legislative authority, a municipality cannot grant to any person the right to erect or maintain a structure or obstruction in a public street.” In the case of Laing v. Mayor &c. of Americus, 86 Ga. 756(1) (13 S. E. 107), the Supreme Court held: “Without express statutory authority, a municipal government cannot grant to any person the right to erect and maintain in a public street a structure, such as a permanent fish-box, for his private and exclusive use.” That decision is controlling here. The fact that the news stand was on wheels, and the fish-box was not, is immaterial. The two obstructions were alike violative of the law, because of their permanency, each taking a portion of a public street for the private and exclusive use of an individual. See also Mayor &c. of Savannah v. Markowitz, 155 Ga. 870 (118 S. E. 558).
The certiorari was properly overruled.
Judgment affirmed.