The Savannah morning news. (Savannah, Ga.) 1900-current, 1904-07-08
BELIEVES CITY
CAN FIX Line
AUTHORITY OF THE POLICE
ENOUGH TO MAINTAIN BUILDING
LINE, SAYS COL. MERCER.

Rases His Opinion on Wrong Pow
or. Tint of Eminent Domain.
Quotes Decisions to show Extern
.ive Power Given to POIice-Cnsc
of Trinity Church Yard in New
York.
Col. George A Mercer, who has
been earnestly advocating the estab
iishment of a building line in Savan-
nah, believes that the city has the
power to take action in this matter
without condemning property.
In his opinion this power lies with
the police and is not based on the
right of eminent domain. In discuss
ing the question Col. Mercer said:
Il have not as yet been able to find
any direct judicial decision on the es-
Enlistment and maintenance of build
ing lines by a city. 1 only know that
many of the progressive cities in the
East and West have them, to the very
great increase in comfort and convent
ence, symmetry and beauty of such
cities Whether the right is exercised
under the large reservation of the po-
lice power incident to every munich
lative grant, 1 have not been able to
ascertain.
Judge Dillon, the very highest au-
thority on this subject, in his work
on municipal corporation, declares in
effect that the establishment of build
ing lines would be a branch of the
police power. He declares that:
Exercise of Police Power.
Every citizen holds his property
subject to the proper exercise of the
police power, either by the state Legis-
lature directly, or by public corpora
tions, to which the Legislature may
delegate it. Laws and ordinances re-
lating to the comfort, health, convent
ence, good order and general welfare
of the inhabitants are comprehensive
ly styled police Laws or Regula-
tions." And it is we'll settled that
laws and regulations of this charac-
ter. though they may disturb the en-
joyment of individual rights, are not
unconstitutional though no provision
is made for compensation for such dis
turbance. They do not appropriate
private property for public use, but
simply regulate its use and enjoyment
by the owner
In Coates VS.. the Mayor, etc, the
Supreme Court of New York sustained
the validity of an ordinance of the
city of New York prohibiting further
nterments in Trinity church yard. al
though the corporators insisted that
this right was an express provision
and privilege of their charter, and a
state is prohibited by the constitution
of the United States from impairing
the obligation of a contract or char
ter
In the case of the Boston Beer Com
pany VS.. Massa chusetts, the Supreme
Court of the United States sustained
the validity of an ordinance prohibit
ing the brewing of beer within certain
municipal limits. although the right
had been expressly guaranteed by the
charter The right of a municipal cor
poration to destroy without compensa-
ton property to prevent the spread of
a conflagration has been often sus-
tanned. A building line for the gen.
eral good destroys no property, but
only wisely regulates its use.
1T has been held that under the
exercise of the police power, the duty
of paving and repairing a sidewalk in
front of a house may be imposed on
the owner. Here the cost of repair,
the money, as much property as the
land is taken from the owner with
out compensation, for the general good.
In every case of this character private
right or property has been held sUbor-
dinate to the general good.
Not Eminent Domain.
The corporation attorney bases his
objection upon the exercise of the right
OF eminent domain. 1t is true that
private property cannot be taken for
public use without just compensation,
but the establishment of a reasonable
building line involves no taking, all
the authorities hold that there is no
taking in such cases. there is no trans
fer of property to the city, it is only
an application of the well settled po-
lice rule that you must so use your
own property as not to injure your
neighbor.
No owner of property in a city has
an absolute right to build upon every
inch of his property, and as may suit
his own purpose. In law he owns not
only the ground surface of his area,
but indefinitely upwards and down
wards.
Could he exercise a right to build a
thousand feet upward if there was
danger of his structure topping over
TO the injury of his neighbor or the
public. Could he dig a thousand feet
downward and endanger the support
and standing of adjacent buildings.
And yet he owns above and below as
much as he owns his surface.
If building were so constructed in
this city that it was in danger of top
ping over, and injurying people in
could not be strengthened, can any
one question the police power of the
city to cause it to be moved further
back on its lot, so that If it fell it would
not injure the by-passers. If the city
could do this in a single instance foI
the public welfare, why not generally
A Question of Policy.
Il do not think it is a question OF
power, but one of policy. Would II
enure to the betterment of the city
10 the enhanced comfort, cleanliness
sanitation and comeliness of the com
nunity. If it would, in the opinion OF
the municipal authorities. / do not
question their power to establish il.
The code of Savannah Is full OF
the exercise of municipal authority tc
me detriment of private right, anc
purpose. Wooden structures cannot
De erected within the fire limits
Messrs. Artley and Cooper only VERY
recently sought to construct some
buildings of wood, to be covered witt
plaster' as a protection against fire
ana We're required TO substitute brick
An owner cannot even repair q
wooden building without the permission
council. He cannot move such 9
oul1lng to another lot. or even fron
ole portion OF his lot to another part
nn4a.