148 Ga. 593 | Ga. | 1918
The plaintiff brought a petition to enjoin the City of Atlanta, and the other defendants in error as agents and officers of the city, from proceeding to condemn certain land belonging to the plaintiff, for sewer purposes. A temporary restraining order was granted, but upon'the hearing the court refused to grant
The charter of the City of Atlanta, as amended by the act of 1889 (Acts 1889, p. 956, see. 6), provides, in part, as follows: “That, the construction of all sewers under this act shall be provided for by ordinance. After the first reading of an ordinance for the construction of a sewer, a notice of the introduction of the same shall be published in one or more of the daily papers of the city; such notice shall contain a statement of the line along which the proposed sewer is to be laid, and a statement of the general character, material, and .size of such sewer. Said notice shall be published at least as many as ten days before the adoption of said ordinance, and said ordinance may be adopted at the next meeting after its introduction; or at any subsequent meeting, after- said notice has been published. Substantial compliance with the above requirement as to notice shall be sufficient.” The city charter provides for the exercise of the power of eminent domain. Code of Atlanta (1910), §§ 294, 295. But an ordinance must be passed before this'right can be exercised. It is insisted by the plaintiff, and the record bears out the contention, that at the time the city began the condemnation proceedings by negotiating for the purchase of the easement over .the land of the plaintiff in error, the city had not passed an ordinance authorizing it to condemn the private property sought to be condemned. It appears that an ordinance for that purpose - had been introduced in the city council, but had not beén acted upon; that subsequently to the institution of condemnation proceedings the ordinance was passed authorizing the construction of the sewer; and that after its passage no further effort was made to negotiate with the owners of the land for the purchase of the right of way. The question presented for decision is whether the City of Atlanta can proceed under its charter to condemn private property for sewer purposes before an ordinance is passed for that purpose. In the instant case the ordinance was passed after the offer to buy the right of way from the owner was made and the notice required was given. This can not be done so as to make such an ordinance effective. The ordinance must be first passed, and it can not be subsequently enacted and made to relate back to the beginning of the proceedings to negotiate for the purchase of the right of way. Bridwell v. Gate City Ter