Opinion
16804.
OCTOBER 10, 1949.
Injunction. Before Judge Guess. Clayton Superior Court. May 30, 1949.
J. C. Savage, J. C. Murphy, J. M. B. Bloodworth, John E. Feagin, W. H. Reynolds, Eugene Cook, Attorney-General, W. V. Rice, T. V. Williams, and Cam Dorsey, Assistant Attorneys-General, for plaintiffs in error.
Coogler Kemp and Carl T. Hudgins, contra.
A petition by residents and taxpayers for injunction, which shows that the closing and relocation of a section of a State highway is for the purpose of extending a municipal airport, fails to state a cause of action, where arbitrary abuse of the powers granted by the "Uniform Airports Law" is not shown.
No. 16804. OCTOBER 10, 1949.
L. L. Murphy and others, as residents and taxpayers, brought an action against J. G. Morris, as sole Commissioner of Roads and Revenues of Clayton County (John Hulgan being later substituted by amendment), the State Highway Department, and the City of Atlanta, to enjoin temporarily and permanently the defendants from closing, abandoning, and altering the status of State Highway No. 85 (Atlanta Avenue) for a distance of approximately 1400 feet. In brief, the petition alleged: State Highway No. 85 was a part of the public roads of Clayton County for approximately 75 years before it became a part of the State Aid System. The Commissioner of Roads and Revenues of Clayton County gave his consent that a portion of State Highway No. 85 be closed to traffic and abandoned as a part of such highway. The City of Atlanta was a party to the agreement, and in consideration of the closing of a part of Highway No. 85, the city agreed to bear some part of the expense in providing improvements to another "circuitous and impracticable" route. Pursuant to the agreement, the State Highway Department has begun work on the circuitous route, and is rushing it to completion "to allow the closing of said section of said State highway." Sections 95-203 and 95-207 of the Code, which require notice, have not been complied with. The route adopted is "one and one-half miles in length, is too narrow for accommodation of the customary traffic . . has steep hills which are not being graded, has nine right-angle turns," and "has a dead end at a county school." "Said new route will be very dangerous and incapable of affording safe and expeditious travel facilities." The City of Atlanta has urged the change upon the other defendants to further its own interest and to better use nearby property for airport purposes. The petitioners have no adequate remedy at law, and by proceeding in equity a circuity of actions can be avoided.
The general demurrers of the city were overruled, and after a hearing, the city and Hulgan were enjoined, as prayed, until the further order of the court. The city excepted to the order overruling its demurrers and to the grant of the injunction.
The petition and evidence in this case show that the proposal to close a part of State Highway No. 85 (Atlanta Avenue) was at the instance of the City of Atlanta, pursuant to its plan to extend its municipal airport. The "Uniform Airports Law" (Code, Chapter 11-2), is a general law and confers broad and comprehensive powers upon "municipalities, counties, and other political subdivisions," to acquire (either separately or jointly) lands for the construction and expansion of airports. Rules of law and decisions of this court applicable to the closing of State highways which were a part of the public-road system of a county prior to incorporation into the State Highway System are not, therefore, applicable to the facts of the present case.
In Howard v. Atlanta, 190 Ga. 730 ( 10 S.E.2d 190), this court fully stated the rules of law applicable in those instances where the construction or extension of a municipal airport is involved. Under the rules stated in the Howard case, the City of Atlanta and the other defendants were fully authorized to contract for the closing and relocation of a portion of a State highway in order that the municipal airport might be expanded. While the decision in the Howard case was not concurred in by a full bench (two Justices dissenting), it follows the apparent intent and purpose of the General Assembly in the enactment of the "Uniform Airports Law," and will therefore be followed in the present case.
No arbitrary abuse of the powers conferred by the "Uniform Airports Law" is shown by either the allegations of the petition, or the evidence, and the trial court erred in overruling the general demurrers of the city and in thereafter granting an interlocutory injunction.
Judgment reversed. All the Justices concur.