Box 17, Folder 11, Document 90

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Thomas “idd, et al. va City of Atlenta, ot al,

January &, 1963

The question in this case is whether the territory in question
de @ public street. if it is not a public street, then, of course,
an obstruction would not ve a nuisance. Now, the evidenee shows
that theve are two ordinances pasaed by the Mayor and Soard of
Aldermen closing the stects in question. 154 Ga. page 556 Lee
County vs the Hayor of Smithville et al., aaya in part. “The state,
through ite legislature, has as mush er and control over the lay-
ing out, rmecbnrtaete | agintainance, Closing of the highways,
strocts, lanes, and alleys of the municipal corporation as it haa
over other public highways. It may ehange, alter, abolioh either
class of these highways at will. The power to bave opened, worked,
repéired, improved, or closed the public highways, streete, and roads
may be exorcised by the legislature in such manner and way, and under
such circumstances, as it may deem best. There is ao constitutional
ov other limitation on this power in this particular mattereece..

The legislature, can, of course, delegate this power to lecal, ine
fericr bodies, or it can exorcise it through its own agenGioBersce It
may exercise this power direetly, or may delegate it to municipalities,
the counties of the state, or to any cther constituted body.” There-
fore, there is no question, but that the Gity of Atianta has the
power under its charter to close streets.

209 Georgia 763 Jenkins vs Jones, “Generally, a municipal |
ordinance passed in pursuance of express legislative suthority is a
law @ithin the meaning of the constitution, and has the same effect
aS @ logal law duly enacted by the State Legislature.” a

Allegations were made during the trial by the pleintifi aa to
the motives of the Mayor and aldermanie board in passing the two —
ordinances closing said street. In 16) Ga. page Syl Cleim et ale
va City of Atianta, it was heid as follows: a”.
Phe courts cannot inquire into the motive of the defendants
im pressing and precuring the enactmant of this ordinance, or of im

the mayor and general council of Atlanta in enacting the tOesee™

It thus apvears to mo that the City of Atlanta through its legisla- —
tive body, has closed the streets in question and that until this ~~
action is set aside in some manner recognized by law, this court is ‘y
bound by the ordinances adopted. There is, also, a question whether —
this court would have jurisdiction to set them aside in any event. Be

There is ancther question that bothers this court. The present
petition alleges that this muisance is a public nuisanse and the
evidence seems to support that allegation. further appears that ay
the preest plaintiffs have suffered no injury, if any, not suffered —
by the public at large, and the court understands the law to be that,
woere a nuisance is a public one, and, where the plaintiff’ suffers
mo personal injury beyond that euffered by the public at iarge,
only the public authorities, acting through the Soliciter General x
can maintain a petition to abate the nuisances. At least, private
parties cannot do so.

For ail of the foregoing reasons the court is of tne opinion
and hereby rules, that the present potition must be and is hereby

ia “Fadge

Gity of Atlanta

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