Frank v. City of Atlanta , 72 Ga. 428 ( 1884 )

Hall, Justice.

1. Had there been no disputed facts in this case, and had its determination depended solely upon questions of law, then it should have been disposed of on a motion for a non-suit. Frank vs. Atlanta Street Railroad Company, decided to-day.

We think the non-suit wrong in the present instance, because both questions of law and fact were involved in the issues made. •

Whether the mayor and general council of the city of Atlanta had authority, upon the report of its building inspectors and engineer, to destroy a building reported as unsafe, but which was not located on any street, alley or lane of the city, is, to say the least, questionable, under §145 of its charter, acts 1874, p. 147. It is urged that they have jurisdiction of this matter for the protection of the occupants of buildings thus situated under the general power and corresponding duty to extend “ protection to the* citizens.” Sec. 93, City Code of 1879. There is no grant of any specific power to affect this object, that we are aware of, and whether the legislature intended to confer such authority by the general grant relied on, is not quite clear. An application to the general assembly for express power over this subject, and its action thereon, would solve the doubt. In the view we take of this case, it is not necessary to decide the question, and we do not ride upon it. We should be reluctant to do so without a fuller argument than that with which wo have been favored on this occasion. Municipal corporations, like all others, are confined to the exercise of powers expressly granted, or necessarily implied, and a necessary implication must be so dear and strong as to render it highly improbable that the fegisialure could have entertained an intention contrary to (he implication claimed as resulting from the power granted; indeed, some high authorities go so far as to declare that it must be impossible to impute a contrary intention to the law-making power. Dillon on Mun. Corp., § 1, 680, notes and citations; As applied to the point in controversy hero, Ib., §§683, 1013, notes ; 12 La. Ann., 481 ; 39 Ga., 725 ; 66 Ib., 195.

2. The taking or injuring of private property for the public benefit is the exercise of a high power, and all the conditions and limitations provided by law, under which it may be done, should be closely followed. Too much caution in this respect cannot be observed to prevent abuse and oppression. This court in D'Antignac vs. The City Council of Augusta, 31 Ga., 700, 710, announced and enforced the principle, upon abundant authority, cited in the luminous opinion of Jenkins J., who pronounced the judgments, « that, in proceedings by statute authority, whereby a man may be deprived of his property, the statute mustbe-strictly pursued. Compliance with all its prerequisites must be shown.” 67 Id., 194, 195. By §146 of the charter (Acts, 1874, p. 147), the party whose building is complained of is entitled to fifteen days’ notice, that the objections reported by the building inspectors may be removed. That this requirement of the act was complied with is disputed; the plaintiff contends that, while her counsel appeared before the mayor and general council, and insisted that her building was not so located as to fall under the jurisdiction of the building inspectors, that this was not the notice required by the charter to be given to her to remove their objections; that, in consequence of this appearance, proceedings upon the report thus made were suspended, and, as she had good reason to believe, were abandoned ; that, in tearing down her building, the city authorities did not, in fact, carry out the recommendation of the building inspectors, but acted under a resolution, which recited that the building bad been reported by the board of health as a nuisance; this resolution appeared, upon their minutes but a short time before the edifice-was destroyed. She proved by members of the board of health that no such report as that recited in the resolution had ever been made; and further, that search had been made-in the proper place, and the report could not be found.

3. If the house was destroyed to abate a nuisance, then, it is very evident, from the uncontradicted testimony in the case, that the proceeding was not in accordance with the defendant’s charter (§67, Acts 1874, p. 133), which conferred authority to act and cause such nuisances to be-abated as are likely “ to endanger' the health of the city or of any neighborhood,” only upon the report of the board of health, and in pursuance of its recommendation.

4. It was contended, however, if both these defenceswere unavailing, still this was a wooden structure, and was within the fire limits, and for that reason should be removed. But to this it was replied that there was no-proof that the city had established fire limits; that the building had stood where it was for seventeen years, and. no complaint had been made on that account; that there-were other buildings of like character within the same boundaries that had not been disturbed; and even if it were located within these limits, it could not be removed until she had five -days’ notice, which it was not pretended-had been given .as required by §153 of the city charter. All these were facts, and there are others in this record, bearing upon the validity of the act in demolishing this-house, and shedding light upon the motives and conduct of the city’s agents in the destruction of plaintiff’s prop.erty, which she was entitled to have submitted to the jury that she might have them pass upon her right to recover compensation for the wrongs done to her property.

Judgment reversed.