Opinion
13037.
MARCH 13, 1940.
Petition for injunction. Before Judge Davis. DeKalb superior court. July 13, 1939.
Young H. Fraser and T. E. Whitaker, for plaintiffs.
B. H. Burgess and Neely, Marshall Greene, for defendants.
1. By an amendment to the charter of the City of Decatur it was provided: "That the commissioners of the City of Decatur shall have full power and authority in their discretion, and they are hereby given such authority, to close up and abolish any street, road, or alley, or any part of a street, road, or alley in said city; provided, however, said city shall be liable for damages to any property right of any person occasioned by the exercise of the powers therein granted." Ga. L. 1931, p. 736. In pursuance of the amendment to the charter the city commissioners adopted an ordinance declaring "that the said Drexel Avenue crossing from the south side of Howard Avenue, as extended, to the north side of West College Avenue be and the same is hereby closed up and abolished as to all vehicular traffic."
Held, that the ordinance was authorized by the charter amendment. The ordinance in question differs from that involved in Coker v. Atlanta, Knoxville Northern Railway Co., 123 Ga. 483 ( 51 S.E. 481), which was held to be unauthorized by the charter.
2. Neither the charter amendment nor the ordinance is violative of the due-process of law clauses in the State and Federal constitutions. Lee County v. Smithville, 154 Ga. 550, 556 ( 115 S.E. 107), and cit. See Marietta Chair Co. v. Henderson, 121 Ga. 399, 403 ( 49 S.E. 312, 104 Am. St. R. 156, 2 Ann. Cas. 83), and cit.
3. The fact that the ordinance closing the crossing to vehicular traffic may have been induced in part upon consideration of the furnishing by the railroad company of certain dirt to improve Howard Avenue and certain right of way may have been furnished by an individual for widening that street, and that the closing of the crossing will operate to some inconvenience of the plaintiffs and general public, and depress the market value of their properties, is not (in the absence of fraud or insolvency of the city) cause for injunction to prevent closing of the crossing. Marietta Chair Co. v. Henderson, supra; Pacific States Box c. Co. v. White, 296 U.S. 176, 185 ( 56 Sup. Ct. 159, 80 L. ed. 138); Wells v. Atlanta, 43 Ga. 67; Mathews v. Darby, 165 Ga. 509 ( 141 S.E. 304); Murphy v. Chicago c. Ry. Co., 247 Ill. 614 (93 N.E. 381).
4. Under the pleadings and the evidence the judge did not err in refusing an injunction.
Judgment affirmed. All the Justices concur.
No. 13037. MARCH 13, 1940.
The Georgia Railroad Company has in use for railroad purposes a right of way through the City of Decatur. Extending along the north side is Howard Avenue, on the north side of which "Lenox subdivision" borders. Extending along the south side of the right of way is College Avenue. On June 5, 1939, and for a number of previous years, Drexel Avenue, running north and south, crossed Howard Avenue and the railroad right of way, and intersected College Avenue, and thus constituted a public highway across the railroad right of way, for use by the general public as a crossing between Howard Avenue and College Avenue. J. C. Jones and others, as residents and taxpayers of the City of Decatur, residing on Drexel Avenue, instituted an action against the City of Decatur and the commissioners of the city individually, seeking to enjoin them from vacating the Drexel Avenue crossing in so far as it relates to vehicular travel. The exception is to a judgment refusing an interlocutory injunction.