x999-2" type="concurring-in-part-and-dissenting-in-part"> TERRELL, J., concurring in part and dissenting in part:

I agree with the judgment of Justices Buford and Barns and Associate Justice McNeill, that certiorari should be granted and the order of the Chancellor quashed insofar as *8 it applies to that part of Calhoun Street lying between Tennessee Street and Virginia Street. But I think his order should also be quashed insofar as it applies to that part of Calhoun Street lying between Tennessee Street and Call Street.

To me the record does not reflect the factual picture that it apparently reflects to the Justices with whose, judgment I am in partial agreement. That a city has control of its streets and may extend or widen them as public necessity requires is academic, but when it attempts to turn a long established area like that involved into a business district, requiring the demolition of streets and property fronts I think there must be a public necessity shown for so doing and provisions be made for restitution to those whose property is taken or damaged. It cannot be done by arbitrary fiat and I find nothing else to support the action of respondents in this case. I think the law requires that the action of the city in a case like this be predicated on a fact finding judgment but there is a total absence of any such prerequisite. The city ordinance of Tallahassee also contemplates that the action complained of be taken with the advice and consent of the Park and Planning Board but that requirement was also ignored.

The question of enlarging the business area of the city has been mooted for months prior to the action of respondents. The city at great cost employed a city planner who prepared an elaborate plan for a Capitol Center. He recommended that the trees on Calhoun Street should not now be removed because of their esthetic and other value to the City. So far as this record discloses the citizens of Tallahassee were against their removal. The respondents had at special meetings called for that purpose, discussed the matter of widening Calhoun and other streets and had given the public to understand that no summary action in the matter would be taken; that all interested would be given ample opportunity to be heard, but despite these assurances, they were, on October 22nd ordered removed, the work of removal to commence at 7:30 the following morning, a few hours after the order was given.

Respondents justify their abrupt change of front on the *9 ground that the time had arrived to enlarge the business area of the City. I think their unsupported opinion falls far short of the standard of legal requirements to justify their action. The mere fact that a city is authorized to widen, lay out, and improve its streets, does not authorize it to peremptorily invade and mutilate the property of its citizens. When public necessity requires that streets be widened the law provides an orderly way for it to be done and for those directly injured to be recompensed, but I do not find where any effort was made to follow the law in this' case.

In a democracy like ours I have always understood that the people sit in the drivers seat and that sovereignty resides in them. True, sectors of it may be delegated to their trustees' to be exercised with discrimination, but under no circumstances are such trustees warranted in assuming the role of autocrats. The fluidity of the times constantly requires us to think anew and remold some democratic concepts to accommodate them to the delicate and intricate factual situations that constantly confront us, but I know of no circumstances that warrant us in discarding the right of due process and equal protection when one’s property is appropriated for public use.

For the reasons so stated I think the certiorari should be granted and the judgment below quashed in so far as it affects all that part of Calhoun Street between Call and Virginia Street.

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How this case has been treated — in progress