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Petition for injunction. Before Judge Manning. Cobb Superior Court. April 2, 1957.
DUCKWORTH, Chief Justice.
1. The charter of the City of Marietta grants power to the mayor and council to open streets and condemn property for that purpose, and courts will not interfere with the exercise of these powers unless they are being arbitrarily and unreasonably used.
2. The 1946 act (Ga. L. 1946, p. 130; Code, Ann. Supp., 69-901), purporting to authorize annexation of property within corporate limits of cities by ordinance, is an unconstitutional attempt to delegate legislative powers, and is void. The proceedings under that void act, undertaking to incorporate the lands here involved within the city, were void and without effect. But, by the 1953 amendment of the charter of the City of Marietta (Ga. L. 1953, Nov.-Dec. Sess., p. 2267), that inclusion was ratified and the area in which the proposed street is located was expressly included in the city, and it is now lawfully a part of the city and is subject to condemnation in a proper case by the city for street purposes.
This is an action to enjoin the City of Marietta, a political subdivision of the State of Georgia, from condemning the petitioner's property for street purposes under the authority of the in rem provisions of Code Ch. 36-11 (Ga. L. 1937-38, Ex. Sess., pp. 251-255). Petitioner alleges in substance: that the defendant is proceeding illegally under an illegal resolution which authorizes its attorney to exercise the city's power of eminent domain, has failed to pass necessary ordinances and resolutions specifying the manner in which petitioner's property could be condemned, and no appropriate method of condemnation has been adopted, is proceeding illegally contrary to the due process clause of the Constitution of Georgia, is not entitled to proceed under the in rem petition because petitioner's title to the property is not in doubt, and a judgment ascertaining such question is unnecessary; that the assessor for the city was appointed prematurely; that existing ordinances require all streets to be 50 feet wide, and the land to be condemned for street purposes is only 40 feet wide; that there is no necessity to acquire petitioner's property, and the city acted arbitrarily, capriciously, and unnecessarily, and has failed to comply with the provisions of its charter; that the condemnation is a subterfuge and a conspiracy to enable the owners of the adjoining property to obtain necessary connections to utilities installed by the petitioner after having contracted with him to pay $7,500 and other consideration for such purposes; that the said property lies without the legal corporate limits, and the city has no power under its charter to acquire or condemn property for street purposes which lies without the corporate limits, and the condemnation is unnecessary since the adjoining property also lies without the corporate limits; and that the provisions of Code (Ann. Supp.) 69-901 (Ga. L. 1946, p. 130) and the ordinance by which the lands were taken into the city are violative of the Constitution (Code, Ann., 2-1301).
A demurrer was filed to the petition, and after a hearing was sustained and the petition dismissed. The exception here is to that judgment.
1. The charter of the City of Marietta invests its mayor and council with wide general powers to "open, improve, change or close" streets of the city. Ga. L. 1904, pp. 519, 528, 24. This power is broad enough to authorize them to exercise poor judgment so long as it is their judgment and is not capricious and arbitrary in opening and locating streets anywhere within the city. It is not permissible for courts to substitute the court's judgment for that of the mayor and council in such matters. Danielly v. Cabaniss, 52 Ga. 211 (4); Keely v. City of Atlanta, 69 Ga. 583; Schofield v. Bishop, 192 Ga. 732 (16 S. E. 2d 714); Story v. City of Macon, 205 Ga. 590 (54 S. E. 2d 396); Kirkland v. Johnson, 209 Ga. 824 (76 S. E. 2d 396). The same section of the charter empowers the mayor and council to condemn property for such street purposes. The charter further provides that, before such condemnation, the mayor and council must "pass ordinances specifying in what manner said property shall be condemned." This quoted provision does not refer to the steps in the court procedure, but means only that the ordinance must provide if private negotiation for purchase shall first be had, and failing in that, proceedings according to law shall be prosecuted to condemn described property for stated purposes. That was done in this case. The ordinance meets these requirements and satisfies the charter in this respect.
2. The power to open streets and condemn property for that purpose is confined to property located within the corporate limits of the City of Marietta and does not include property outside the corporate limits. See Charter of City of Marietta (Ga. L. 1904, p. 519; 1910, p. 942; 1943, p. 1446, etc.); Botts v. Southeastern Pipe-Line Co., 190 Ga. 689 (10 S. E. 2d 375). The petitioner admits that the procedure for annexation was fully complied with in reference to the land here sought to be condemned, but he alleges that such procedure was void because the law itself is void in that it violates the constitutional inhibition against delegating legislative powers. Code (Ann.) 2-1301. The matter of fixing municipal corporate limits is strictly legislative, and it was beyond the power of the General Assembly to delegate its exclusive power to alter the corporate limits of the City of Marietta in the manner provided by the act and pursued in reference to the land here involved. The statute is therefore unconstitutional and void. Phillips v. City of Atlanta, 210 Ga. 72 (77 S. E. 2d 723). Consequently, the procedure thereunder was void and did not change the corporate limits to include this land within the city.
But in 1953 the charter of Marietta was amended (Ga. L. 1953, Nov.-Dec. Sess., p. 2267). This amendment ratified all previous incorporations of territory into the city, or attempts to do so under the 1946 act, and expressly included all such lands within the city, referring to the city ordinance, including plats, maps, and descriptions of such lands for the description in the act, stating that copies of such were on file in the office of the Secretary of State of Georgia. By this 1953 act the land here involved was lawfully included in the city and is now a part of the city. No attack was made in the trial court upon the validity of the 1953 charter amendment. Therefore, arguments in the brief of counsel in this court that the act is invalid because the description is inadequate must be disregarded and the law accepted as being valid. Being a part of the city, this land is subject to the proper exercise by the mayor and council of charter powers to condemn for street purposes.
Nor do the previous negotiations by owners of the 71-acre tract with this petitioner for the purchase of the right of way here involved, which never reached the stage of becoming a contract, affect in any manner the city's right to condemn. Furthermore, a previous ordinance providing for condemning this property, and reciting that the same parties who had negotiated with the petitioner would reimburse the city for the cost to it of the land condemned, is wholly irrelevant here and in no wise affects the ruling we make.
For the foregoing reasons, the petition alleges no cause of action, and the court did not err in sustaining the demurrer thereto and dismissing the same.
Judgment affirmed. All the Justices concur.
Claud M. Hicks, J. Douglas Henderson, for plaintiff in error.
SUBMITTED JUNE 10, 1957 -- DECIDED JULY 3, 1957.
Saturday May 23 01:44 EDT

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