The Savannah morning news. (Savannah, Ga.) 1900-current, 1904-07-09
MAYOR ANSWERS
COL. MERCER
CITY ATTORNEYS OPINION.
MAYOR SAYS 1T Is COL. MERGERS
MISFORTUNE TO BE ILL ADVISED.

Suggested Building Lines Brought
on Lively Controversy Between
Mayor and City Attorney on One
Side and Col. Mercer on the other.
MIR. Myers Asserts the Colonel
Makes Deductions That Are Not
Sustained by Quotations He Uses.
Col. Mercer states that he has not
been able to find any direct judicial
decision on the establishment and
maintenance of building lines said
Mayor Myers yesterday in speaking of
Col. MERGERS interview in the Morn
ing News.
That is his misfortune. The city
attorney, in his opinion, cites express
and direct authorities in text books
and decisions, sustaining the principle,
that, in order to establish such build
ing lines, the city must pay for the
strips taken. either by condemnation
proceedings or by purchase.
col. Mercer also suggests that the
city obtain power from the Legisla-
ture to arbitrarily fix building lines.
The opinion of the city attorney
shows that this would be abortive as
this identical point was decided in the
case of the city of st. Louis VS.. Hill,
22d So. West. Reports, page S61, where
in the Supreme Court of Missouri held
the Boulevard law to be unconstitu-
tional. null and void, because it es-
tablished arbitrary building lines,
without providing for compensation to
owners of land so taken and used.
Was Only n Deduction.
'Col Mercer says that Judge Dillon
in effect declares that city can es-
tablish building lines as one of its
police powers
This is Col MERGERS deduction, but
the quotation he makes from Judge
Dillon does not sustain him, ex-
pressly nor in effect The city, of
course can pass ordinances regurat-
ing the use of property in some par
ticulars. such as ordinances as to
brick buildings in fire limits, as to
storage of dangerous articles, and the
like, and these are police regulations,
but there is a vast difference between
such ordinances and one limiting an
owners right to build his residence
anywhere within the limits of his own
lot. In order that this interesting mat
ter may be fully understood, / offer
the public the opinion of the city at
torney."
City Attorneys Opinion.
charter to widen any street or way,
and to open, lay out and establish
any new street or way. This would in
clude the widening of a present street,
or the opening and establishment of a
new street. with grass plats within
the property lines, extending back to
fixed building line, which would be
to establish a quasi boulevard
"But to do this the city would have
to condemn or purchase the strips of
land on either side of such street ex-
tending within the property lines, as
these strips would become public prop
erty, and would be appurtenant to the
street or driveway.
THE city has no right to fix an arbi-
trary building line within the prop
erty line, without paying the owner Of
tine land so taken for public use, the
value thereof. Such an attempted ex-
ercise of power would be unconstitu-
tional, null and void.
Has Direct Authorities.
'In that recognized authority Lewis
on Eminent Domain second edition,
Section 144, the established law is an
nounced as follows
Establishing Building Lines.-The at
tempt by statute or ordinance to estab-
lish building lines on a street. whereby
the abutting owners are prohibited
from placing any building within a
specified distance Of the street line is
similar to the practice noticed in the
last section.
such law deprives the owner OF the
lawful use Of his property and amounts
to a taking thereof within the mean
ing OF the constitution. and, conse- |
quently, can only be carried out by
making provision for the compensation |
of the owner. In commenting upon
such an ordinance the Supreme Court |
of Missouri, In the case cited, says:
The day before the ordinance went |
into operation defendant had the I'M |
questionable right to build at will on |
his lot. The day afterwards he was |
as effectually prevented from building |
on the forty feet strip. except under |
peril Of punishment. as IL the city had |
built a wall around II. and this too, |
any form of notice, any spe- |
cles OF judicial injury. or any tender |
Of compensation. II this is not a TAX
ing by mere arbitrary edict. It is diff |
hcult to express in words the meaning
which would characterize the act Of
the city
boulevard Law UnconstitutionaI.
The case cited in the fore
going excerpt is that OF the
city Of st. Louis vs.. Hin
,2nd S-W Reporter p. SOL and in this
Ease law known as the Boulevard
Law passed by the Missouri General
which provided that city
may establish a building line on a
boulevard. 10 which all structures
thereon must conform, there being no
therein for the proceedings
10 condemn the land affected. was de-
dared 20 be unconstitutional. IN that
Z deprived the owner OF the buttlng
81 alfNf /