City of Dalton v. Staten , 201 Ga. 754 ( 1947 )

1. The use of the streets or sidewalks of a city for gain is not absolute and unrestricted, but is subject to reasonable regulation, and is peculiarly within the police control for the purpose of preserving and protecting their use as public thoroughfares.

2. Properly construed, section 515 of the ordinance of the City of Dalton — providing that "No person or persons shall convert any public street, sidewalk or alley in said city to his or her use, or place any obstruction in or upon them, or either of them, such as wood, barrels and boxes, timber or lumber, except necessarily for building purposes. And such obstruction shall be moved by the Chief of Police at the expense of the owner or owners thereof" — prohibited the suspension, above the sidewalks of the city by the defendant taxicab operator, of telephones for use in his business, and the court erred in granting an interlocutory injunction against the removal of such suspended telephones by the city.

No. 15662. JANUARY 8, 1947. On July 27, 1946, Ben Staten filed a petition against the City of Dalton and its Chief of Police seeking an injunction to prevent them from removing certain telephones from the sidewalks of said city, alleging that he was engaged in the taxicab business, that the telephones were essential to its operation, and that the city was without authority to remove them. The court granted a temporary restraining order and rule nisi. At the interlocutory hearing it appeared that one of the telephones "is hanging on a pole, . . at the side of the sidewalk; not over the sidewalk;" another "at the corner of Gordon and Hamilton Streets is . . on a light post there; it is not hanging on the sidewalk, it hangs on a pole at the side of the sidewalk, in the park-way between the sidewalk and street;" and another is "on the street, . . on the side of the sidewalk at Cannon's corner."

It was insisted that the Chief of Police was threatening to remove the telephones, and that there was no ordinance of the City of Dalton prohibiting the petitioner from maintaining them at their location, and that the action of the Chief of Police was unreasonable, discriminatory, arbitrary, and an abuse of discretion.

Upon the hearing the court passed an order continuing the temporary restraining order in force, and on this order the city and Chief of Police assigned error. 1. The city invokes two ordinances upon which it bases its right to remove these telephones from the streets or sidewalks: An ordinance of March 4, 1946, which deals at length with the regulation of taxicabs, and contains the following provisions: "There shall be no reserved spaces for taxicabs on the streets of the said . . City of Dalton;" with the further provision for those then in operation that they "be granted 90 days . . in which to secure a proper lot or building" to operate their business. Also, section 515 of the City Code, providing: "No person or persons shall convert any public street, sidewalk or alley in said city to his or her use, or place any obstruction in or upon them, or either of them, such as wood, barrels and boxes, timber or lumber, except necessarily for building purposes. And such obstruction shall be moved by the Chief of Police at the expense of the owner or owners thereof."

Whether the ordinance of March 4, 1946, would authorize the Chief of Police to remove the telephones from the streets or sidewalks, need not be determined, as we predicate the ruling here made upon section 515 of the City Code.

A municipality holds streets in trust for the convenience and use of the public at large. Their use for the purpose of gain is special and extraordinary, and may be prohibited or conditioned as the municipality deems proper. Their use is not absolute and unrestricted, but is subject to reasonable regulation and is peculiarly within the police control for the purpose of preserving and protecting their use by the public as thoroughfares. And such regulation applies to the sidewalks as well as to the roadways. Simon v. Atlanta, 67 Ga. 618 (44 Am. R. 739); Fitts v. Atlanta, 121 Ga. 567 (49 S.E. 793, 67 L.R.A. 803, 104 Am. St. R. 167); Schlesinger v. Atlanta,161 Ga. 148 (129 S.E. 861); Hancock v. Rush, 181 Ga. 587,600 (183 S.E. 554); Jones v. Moultrie, 196 Ga. 526 (27 S.E.2d 39).

2. Under section 515 of the City Code it is clear that the city has prohibited anyone from converting the streets and sidewalks to his own use, and from placing any obstructions upon them. Such telephones as are suspended above a street or sidewalk come within the purview of this section of the City Code, which authorizes their removal by the Chief of Police.

The instant case is distinguishable from Town of Lilburn v.Alford Bros., 163 Ga. 282 (136 S.E. 65), in that the ordinance there involved prohibited a permanent obstruction and required notice for a removal by the town marshal, and the evidence disclosed only a temporary use of the sidewalk to load and unload trucks and wagons.

The court erred in continuing the restraining order in force.

Judgment reversed. All the Justices concur.