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STATE HIGHWAY DEPARTMENT OF GEORGIA et al. v. REED, Mayor, et al.
MCINTOSH PAVING CO. v. REED et al.
18712.
18731.
HEAD, Justice.
Injunction. Before Judge Edmondson. Hall Superior Court. June 26, 1954.
1. Its charter (Ga. L. 1937, p. 1877) provides in section one that the "Town of Flowery Branch" may sue and be sued. A municipal corporation can sue and be sued only in the manner provided by its charter, and in its appropriate corporate name. Boon v. Mayor &c. of Jackson, 98 Ga. 490 (25 S. E. 518); Town of Dexter v. Gay, 115 Ga. 765 (42 S. E. 94); Augusta Southern Ry. Co. v. City of Tennille, 119 Ga. 804 (47 S. E. 179); Town of East Rome v. City of Rome, 129 Ga. 290 (58 S. E. 854); Gelders v. City of Fitzgerald, 135 Ga. 400 (69 S. E. 569); Storey v. Town of Summerville, 158 Ga. 182 (123 S. E. 139); Darby v. Mayor &c. of Statesboro, 208 Ga. 705 (69 S. E. 2d 248). An action brought by named persons as "Mayor and Council of the Town of Flowery Branch" is not an action pursuant to charter authority.
2. In so far as the petitioners seek equitable relief "as individuals, citizens, and taxpayers," the allegations of the petition are insufficient to show special damage to them, or any damage that is not shared equally by all other "individuals, citizens, and taxpayers." The petition, therefore was insufficient for the grant of any relief to the petitioners as individuals, citizens, and taxpayers. Code 72-103, 72-202; Coast Line R. Co. v. Cohen, 50 Ga. 451; East Tenn., Va. & Ga. Ry. Co. v. Boardman, 96 Ga. 356 (23 S. E. 403); Cannon v. Merry, 116 Ga. 291 (42 S. E. 274); Coker v. Atlanta, Knoxville &c. Ry. Co., 123 Ga. 483 (2) (51 S. E. 481); Stewart v. Georgia Terminal Co., 136 Ga. 36 (70 S. E. 867); Gullatt v. State, 169 Ga. 538, 539 (4) (150 S. E. 825); Asphalt Products Co. v. Beard, 189 Ga. 610, 613 (7 S. E. 2d 172); Moon v. Clark, 192 Ga. 47, 50 (14 S. E. 2d 481); Maddox v. Willis, 205 Ga. 596, 597 (6) (54 S. E. 2d 632).
3. "The right to extraordinary aid of mandamus exists only where the applicant has a clear legal right to the relief sought and there is no other adequate remedy." Lindsey v. Board of Commissioners of Roads & Revenues of Colquitt County, 169 Ga. 368 (150 S. E. 261); Rollins v. Elder, 180 Ga. 316, 318 (178 S. E. 719); Wright v. Forrester, 192 Ga. 864, 867 (16 S. E. 2d 873); Densmore v. West, 206 Ga. 531, 532 (57 S. E. 2d 675). If the allegations of the petition should be construed as sufficient to show the creation of a public nuisance, there are no allegations that the abatement of the nuisance in the manner authorized by law would not afford the petitioners adequate relief. The writ of mandamus, therefore, would not lie.
4. The trial court erred in overruling the demurrers to the petition, and all subsequent proceedings are nugatory.
H. B. Reed and others, as the Mayor & Council of the Town of Flowery Branch, and as citizens and taxpayers, filed a petition against the State Highway Department of Georgia, Southern Railway Company, and McIntosh Paving Company. It was alleged: The State Highway Department of Georgia is constructing and maintaining a public highway known as U. S. Route No. 23 which extends through the Town of Flowery Branch, and which highway runs parallel with the railroad tracks of the railway company. The railroad and the highway intersect with Main Street in Flowery Branch. On each side of the railroad and public highway Main Street is approximately 60 feet wide. The crossing over the railroad and the crossing over the highway are each approximately 40 feet wide. The Town of Flowery Branch and Main Street existed before the erection of the railroad and the highway, and Main Street has been a public street in the Town of Flowery Branch for more than 50 years. For more than 30 years the railway company has maintained the crossing and the general public has continuously used the street and railroad crossing. The paving company has blocked the crossing on Main Street, claiming to have authority from the highway department, but neither the paving company nor the highway department has any authority to close the street from the Town of Flowery Branch, or other legal authority to do so. The petitioners, as the duly constituted Mayor & Council of the Town of Flowery Branch, and as citizens, residents, and taxpayers of the town, who have property near the intersection of Main Street and the railroad crossing and highway intersection, are deprived of the use of the railroad and highway crossing and will suffer pecuniary loss for which they can not be compensated in damages if they are deprived of the use of the crossing, and unless the defendants are restrained and enjoined from closing and obstructing the crossing.
The prayers were for temporary and permanent injunction to enjoin the defendants from closing the crossing or interfering in any way with the free and uninterrupted use of the crossing; and for a mandamus to require the defendants to remove all barriers and fill up all excavations made across Main Street at its intersection with the railroad and the highway, and to reopen the crossing.
The railway company and the State Highway Department filed separate general demurrers and answers. The paving company filed no defensive pleadings. The petitioners filed an amendment to their petition, alleging: The Southern Railway Company and the State Highway Department have entered into an agreement whereby the highway department is to make further excavations on the crossing, increasing its elevation, and the railway company is to remove all signals, etc., from the crossing, and to erect permanent obstructions to close the crossing. The defendants are threatening to commit further acts to close the crossing. The general demurrers were thereafter renewed.
The petitioners filed general and special demurrers to the answers of the railway company and the highway department, and the general demurrers were sustained. The general demurrers of the defendants to the petition were overruled, and a judgment was entered enjoining the defendants and making the mandamus absolute. The highway department and the railway company excepted to each of the foregoing judgments. In a separate bill of exceptions, the paving company excepted to the granting of a mandamus absolute against them.
Telford, Wayne & Smith, Brannon & Brannon (both cases), R. Wilson Smith, Jr., Raymond F. Schuder, Wheeler, Robinson & Thurmond, Eugene Cook, Attorney-General, Paul Miller, Assistant Attorney-General (Case No. 18731), contra.
Eugene Cook, Attorney-General, Paul Miller, Assistant Attorney-General, Raymond F. Schuder, R. Wilson Smith, Jr., Wheeler, Robinson & Thurmond (Case No. 18712), Bertram S. Boley, Paul Webb, Jr. (Case No. 18731), for plaintiffs in error.
ARGUED SEPTEMBER 14, 1954 -- DECIDED NOVEMBER 8, 1954.
Saturday May 23 03:43 EDT


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