REGENSTEIN et al. v. THE CITY OF ATLANTA

Supreme Court of Georgia1896-03-16

98 Ga. 167

Summary · law.co

Holding. The city council possessed statutory authority to repave the street based on its judgment that the existing pavement was no longer serviceable, and the court refused to enjoin collection of the assessments because no abuse of the council's discretion was demonstrated. The judgment of the lower court was affirmed.

The City of Atlanta repaved Pryor Street with vitrified brick in 1894 under authority granted by state law. Property owners were assessed for their share of the cost, as permitted by the original paving statute. Some abutting property owners challenged the assessments through an equity proceeding, arguing that the existing pavement was not sufficiently worn out to justify repaving and that the city had improperly selected an expensive ornamental material.

The court upheld the city's authority to repave. The statute's language—requiring the pavement to be "worn out and no longer serviceable as a good pavement"—does not demand that every stone be literally disintegrated. Instead, the legislature vested discretion in the city council to determine whether the pavement's condition warranted renewal and what material to use. The court found no clear and manifest abuse of that discretion here. The owners also raised a secondary complaint that the railroad company had not borne its full share of costs, but the court noted that state law provides a remedy at law for excessive assessments, not an equitable injunction.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Scope of municipal authority to repave streets under state enabling statute
Meaning of 'worn out' pavement in context of street improvement powers
Whether equity courts may enjoin street assessments based on discretionary decisions by city council
Availability of legal remedies for allegedly excessive property assessments

Procedural posture

Property owners sought an injunction in equity against enforcement of assessments for street repaving costs; the lower court denied the injunction and the plaintiffs appealed.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Simmons, Chief Justice.

In 1S88 a pavement of rubble-stone was laid by the-municipal authorities of the City of Atlanta, upon Pryor street in that city, and the owners of abutting property were assessed for a certain proportion of the cost thereof, as provided by the act of September 3, 1881, amendatory of the city charter. Subsequently a general law was passed authorizing the mayor and general council or other governing authority of any city of this State, having a population of more than twenty thousand, “to renew by the use of any material that may be decided on, or repair, any pavement now laid or hereafter laid in said city, upon the same terms and conditions, as to assessment of property and street-car companies, as were in force when the said pavement was originally laid; provided, in the judgment of the city council of said city, the pavement was worn out and no longer serviceable as a good jiavement;. it being the intent and purpose of this act, that the city council or other governing authority of said cities shall have the power to pave again any street on which the pavements are worn out and useless.” (Acts 1890-91, vol. 1, p. 229.) In February, 1894, a majority of the owners of property abutting on Pryor street petitioned the mayor and council to repave the street with vitrified brick, the pavement to be laid in accordance with the act of 1881, above referred to, “and the acts amendatory thereof.” In April, 1894, the commissioner of public works and the city engineer reported favorably on the petition; and pursuant to the petition council passed an -ordinance authorizing the repaving of the street with vitrified brick The ordinance recited that this1 was done “under and in accordance with an act of the legislature of Georgia amending the charter of the City of Atlanta, approved Sep tember 3, 1881, and acts amendatory thereof;” also that it appeared that, “the old pavement on. said street is so worn out as to make such repaving thereof necessary.” After the pavement had heen laid, certain persons owning property abutting on Pryor street prayed for an injunction against the enforcement of executions against their property for assessments for their proportionate share of the cost of paving; the main ground of objection being that there was a durable pavement on Pryor street at the time the repaving was done, and that council had no authority to repave “with a costly and expensive ornamental pavement.” The- court refused to grant an injunction, and the petitioners excepted.

1. It is clear that under the acts above referred to, the municipal authorities, upon complying with the conditions therein mentioned, had the power to repave when in the judgment of the city council the. paving was worn to such an extent as to he no longer serviceable as a good pavement. To construe the act of 1891 as meaning that the power thereby granted is to be exercised only where the entire pavement is in a literal sense “worn out,” would be to render it practically inoperativei. What was meant by “worn out” is explained by the language which follows these words. If the legislature had meant that the power to repave should exist only where the pavement was, in a literal sense; “worn out,” there would have been no occasion to add, “and no longer serviceable as a good pavement,” nor, where the phrase “worn out” is again used, the words “’and useless.” The act in terms leaves it to the judgment of the city council whether this condition exists or not. It also leaves to their determination the material to he used in repaving. A court of equity therefore should not undertake to control their discretion in these matters, unless it is plainly and manifestly abused to the prejudice of a complaining citizen. Under the evidence in the present case, the court below was fully warranted in holding that no such abuse of discretion had heen shown.

2. It was complained that the street railroad company was not charged its full proportion of the cost of the pavement, and that for this reason, as well as for other reasons stated, the assessments against the plaintiffs in error were excessive. Even if this were true, it would afford no ground for resort to a court of equity to enjoin the collection of the entire assessments made against them. An ample remedy at law is provided by the act of 1881, supra, the sixth section of which provides that “the defendant shall have a right to file an affidavit denying the whole or any part of the amount for which the execution issued is due, . . and all such .affidavits so received shall be returned to the- superior court of Fulton county, and there tried and the issue determined as in cases of illegality,” etc.

The allegations as to the defective execution of the work in certain parts of the street were met by affidavits showing that these defects had been remedied before the time of the hearing. Judgment affirmed.