Markham v. Howell

33 Ga. 508 | Ga. | 1863

By the Court. —

Lyon, J., delivering the opinion.

This was a bill by the complainant against the defendants, Justices of the Inferior Court of Fulton county, to restrain them from the further use of the premises of the complainant as a small-pox hospital, alleging that it had been impressed by them for that purpose, and was then being so used, without authority of law and without the consent of the complainant. The bill also alleged that the defendants were, by their servants and employees, committing divers acts of waste upon the premises, such as cutting down and removing the trees and timber growing on the same, burning the wood, pulling down, destroying and burning the fences, etc., against all which complainant prayed an injunction. From the answer and accompanying affidavits, read on the hearing of the motion for the injunction, in the Court below, it appears that the premises were first seized by the military authorities of the city of Atlanta, and used by them as a small-pox hospital, to which seizure complainant had made no particular objection, but had made out and presented to the Commandant of the Post a bill for such use, etc., which had been paid by the proper authorities ; that the military authorities had turned over the premises to the Inferior Court of the county, to be used in like manner, and that subsequently, and before the filing of the bill, complainant and the defendants had had an interview on the subject, and an arrangement made, with which the complainant was satisfied, by which arrangement the defendants were to continue to use the premises as a hospital, or as quarantine ground for small-pox cases. It also appeared that the necessity for the seizure of this or some other place for this purpose was absolutely necessary. Upon this ground the Court below refused the injunction as to the further use of the premises for hospital purposes, but granted an injunction as to the waste.

These Inferior Courts of the several counties of this State, when small-pox made its appearance, were authorized by an Act of the Legislature to establish small-pox hospitals, etc., but not in that Act, or in any other, were they authorized by law to seize or impress the private property of the citizen, for that or any other purpose, without the consent of the owner. It is true that the private property of the citizen may be seized for a public use upon just compensation being made, but no individual corporation or tribunal can do so, or judge of the necessity, until special authority of law is given for that purpose, and we should have reversed the judgment of the Court below on this ground, but for the agreement between complainant and defendants before the filing of thebill. By this agreement complainant assented to the seizure, and in that way cured all past errors. That the defendants were authorized to establish a hospital did not confer the right to impress. This is too dangerous and extraordinary power to be conferred by mere implica-, tion — it must be expressly granted, and must provide in the grant the mode of compensation, etc.

2. The injunction as to the waste was properly allowed. There was no agreement or consent to this, nor any excuse for it. Injunctions in cases of waste are granted as a matter of course. Smith, vs. City .Council of Rome, 19 Ga., 89. Let the judgment be affirmed.