The Savannah morning news. (Savannah, Ga.) 1900-current, 1902-03-22
A RIGHT TO DECIDE.
CONTINUED from Twelfth Page.


illconsidered exercise of municipal
power. incautiously granted. In the
presence of threatened wrongs of this
character the individual has usually
no immediate recourse save an appeal
to the courts, and relief is usually
granted at least by those courts pri-
marily entrusted with controversies
arising under the constitution and laws
of the United States where no process
of law is afforded the citizen to have
his rights determined, and also where
the injurious action of the municipality
Is in excess of the power plainly grant
ed by the legislature of the state.
THE averments of the bill construed
with the act of the general assembly
upon which the respondents rely lead
to the conclusion that the action of the
city government in this case not only
affords the citizen no opportunity to de-
fend his rights, but transcends the
original grant of power from the state
upon which the ordinance is based
This grant is found in the section of
the act of Oct l, 1887, which declares
that the mayor and aldermen shall
have full power either to renew or re-
pair any pavement now laid or that
may hereafter be laid in the city of
Savannah at the expense of the owners
OF the real estate abutting, etc.
Condition of the street.
Now. it is clear that CASTOR street,
under this legislative grant and for
NAL ordinance in pursuance thereof,
was paved originally with shells, the
cost of this pavement was assessed
upon the property holders. Had it
worn out the city would have had the
right to renew it largely at the ex-
pense of the contiguous property hold
ers. This is road material long used
in this locality. Renew in this sense
imports to make as if new again, to
restore to a former or sound state
as after deterioration The power to
renew pavement already created
cannot, we think, be construed to mean
"a power to completely tear it up and
put down a pavement of another and
entirely different character. The power
to renew the pavement on CASTOR
street, therefore, means to renew it
with the original material, namely,
with shells. The term renew in this
connection must also be construed
ejusdem generis with the term repair
and this means restoration after decay,
waste, injury, or partial destruction.
The repair of the shell pavement on
CASTOR street previously provided for
by ordinance of the city must, there
fore, be construed to mean to repair by
the use of shell. Now, the ordinance
under consideration provides, not for
renewing or repairing the pavement
on CASTOR street, but for removing
the pavement and repaving with vitri-
fed brick. This is another and an en-
tirely different material, much more
costly, and, because of the noise, which
1t engenders, the heat it absorbs dur
ing the day and radiates during the
night, is Objectionable in every sense
to most of these compliments, who
have secured their homes on NE cool,
quiet, and shaded stretches of this
beautiful avenue of homes which, con-
templated in connection with the de-
gree of seniority possessed by most
of the masculine compliments, recall
the beautiful lines of Goldsmith:
How blest is he who crowns in
shades like these
A youth of labor with an age of ease
Points, Not Contested.
SIT is not contended that there was
any necessity to renew or to repair the
pavement, or that it was worn out or
no longer serviceable. 1t is true deep
trench was cut in it by the city for the
purpose of laying a sewer, but this was
for the general welfare and the cost of
it is not. we understand, to be assessed
like the cost of paving. Indeed, it has
been held that where a city tore up a
good pavement for the purpose of con-
structing q sewer in the street, that a
court will refuse to permit the cost of
restoring the pavement to be assessed
upon the owners of abutting property,
but the cost of the restoration must be
considered as a part of the expense of
making the sewer. Burlington VS..
Palmer, 81 Iowa, 6S1. This rule seems
entirely just.
ut is, however, contended that the
power to compel property owners to
pave ordinarily extends to compelling
them to repave when required by the
municipal authorities. There is author
ity for this contention, Dillon on Mu-
nicipal Corporations, section 780. 1t
must, however, as before stated, have
reasonable construction. If it were in
the power of the municipal government
to compel the requirement. of streets
without regard to the condition of the
pavement, whenever, in the exercise of
their arbitrary discretion they deem it
proper, it is not difficult to conceive
conditions which would be utterly in
tolerable.
Authority to Pave.
''On the other hand, it has been held
that the power to pave at the expense
of the abutter does not authorize the
city to tear up a pavement which is
good and needs no repairs, and which
was paid for by the abutter, and at
his expense replace the same with one
more costly.
French VS.. Barber Asphalt Paving
Company, on which the defendants
here rely, was expressly held by the
court in that case to be not inconsist-
ent with Norwood VS.. Baker. Without
any comment upon the very vigorous
dissenting opinions by three justices
Harlan, White, and McKenna-in each
of these cases, and the somewhat I'M
settled status of the law on the gen
eral subject it is, l think, clear enough
that the special circumstances in this
case, namely, the good pavement which
it is proposed to destroy under a
power to renew and repair, the charac-
ter of the street lined with residences
and parks to which the present pave
ment is entirely suitable, the unani-
nous protest of the holders of prop
erty along the entire street, the inap-
propriate character of the new pave
ment that is to be laid, the veto of
the Mayor of the city of the ordinance
and the sound reasons given for his
disapproval, the greatly increased cost
of the change in the material, the
transformation it will produce in the
character of the street, the great diff
ference in value of the different lots,
the denial to the property holder of
any hearing whatever, and the great
damage in addition to the second as
sessment for paving which it is alleg-
ed will result from this apparently ar
bitrary action of the city government
all exhibit a multitude of special acts
oh hryc I'D of