Nagle v. City Council , 5 Ga. 546 ( 1848 )

By the Court.

Warner, J.

delivering the opinion.

[1.] Had the City Council of Augusta, the power and authority, under their charter and the laws of the land, to make the ordinance specified in the record? We are of the opinion, they had such power and authority. By the 22d section of the 1st article of the Constitution of this State, it is declared, “The General Assembly shall have power to make all laws and ordinances, which they shall deem necessary and proper, for the good of the State, which shall not be repugnant to this Constitution.” Prince, 905. The same provision was in the Constitution of 1789. Marbury and Crawford’s Dig. 15. The General Assembly, having the power to make all laws and ordinances which they might deem necessary and proper for the good of the State, on the 31st January, 1798, delegated to the City Council of Augusta, “full power and authority, from time to time, under their common seal, to make and establish such By-Laws, Rules and Ordinances respecting the streets, wagons, carts, drays, fyc. that shall appear to them requisite and necessary, for the security, welfare, and «convenience of the said city, or for preserving peace, order, and good government within the same; provided, such by-laws shall not be repugnant to' the Constitution, or the laws of the land.” Marbury and Crawford’s Dig. 136. The ordinance complained of, regulates the weight which wagons, and other vehicles employed in the transportation of goods, wares, merchandise, or produce of any kind, shall carry through the streets of the city.

The streets of the city are to be kept in good repair at the expense of the corporation, and very heavy loaded wagons may reasonably be supposed to cut them up, and injure them more than wagons carrying less weight. The argument for the plaintiff in error, however, is, that the ordinance violates the Constitution, deprives him of a natural right, and makes an unjust discrimination between the citizens, who pass with their wagons over the streets of the city.

We have not been able to discover that the ordinance violates any provision of the Constitution. The General Assembly, as we have seen, had the power to make all laws and ordinances, which they might deem necessary and proper, for the good of the State. The charter of the city of Augusta, vests the City Council with full power and authority, to make and establish such by-laws, rules and ordinances, respecting the streets, wagons, fyc. that shall appear to them requisite and necessary, for the security, welfare, and convenience of the city. Does this ordinance deprive the plaintiff in error of his natural right to travel over the streets of the city with his loaded wagon and team 1 Certainly not; but merely regulates the exercise of that right. It may be said, a man has the natural right to ride his horse over the streets of the city, but it will not be contended, we suppose, that he would have the right to ride his horse with such speed, as to endanger the security and lives of the citizens, who are constantly-passing those streets. The true distinction, is, between an ordinance which operates as a total exclusion, or deprivation of the right of the citizens, and one which merely regulates the exercise and enjoyment of it, for the benefit and security of the inhabitants of the city.

An ordinance which would operate as a total exclusion of the right of the citizen to pass'over the streets of the city, with his loaded wagon and team, would be unreasonable and void, a& against common right. But the ordinance in question, which merely regulates the exercise, and enjoyment of the right, is good and valid, and authorised by the charter of the city. Village of Buffalo vs. Webster, 10 Wend. Rep. 99. Bush vs. Seabury, 8 John. R. 419. Nor do we think the ordinance unjustly discriminates between the rights of the citizens, who wagon over the streets of the city. Those who haul brick, wood, and lumber are excepted, it is true, by the proviso of the ordinance, but nevertheless, it is general in its operation upon all the citizens, who may think proper to employ their wagons and teams, in hauling over the streets of the city. If the ordinance had imposed restrictions upon the citizens of a particular ward of the city only, or granted a particular privilege to one class of the citizens, not common to the whole body, then the ordinance might have been obnoxious to the charge of making an unjust discrimination between the citizens ; but nothing of that character appears on the face of the ordinance ; the proviso is as general in its operation as the ordinance itself.

Let the judgment of ihe Court below, be affirmed.