159 Ga. 435 | Ga. | 1924
Lead Opinion
(After stating the foregoing facts.)
The questions presented for consideration under the bill of exceptions in this case may be confined to three: (1) Was the effect of the decree enjoining the mayor, as such, of the municipality of Augusta, and the clerk and comptroller of the city council, to enjoin the City Council of Augusta from acting within the sphere of its legislative powers; and if so, are the questions raised by the present bill of exceptions premature ? (2) Was it error for the trial court to hold that the above officials did not have the charter power to purchase or hire a boat or barge for municipal uses? (3) Was it error for the trial court to hold that the City Council of Augusta was not in financial condition to purchase and operate a boat upon the Savannah River, etc., for the reason that there were no unappropriated funds available to make such purchase, and that such purchase was the incurring of a debt within the meaning of art. 7, sec. 7, par. 1, of the constitution of Georgia?
It is insisted by learned counsel for plaintiffs in error that the effect of the decree is to enjoin the “municipal legislature” from acting within the sphere of its legislative powers, and is therefore premature. It is insisted that no municipal action had been taken on the resolution introduced into thp City Council of Augusta, and that neither the mayor nor the clerk of the city council nor the comptroller could do any act complained of, without express legis
Did the trial judge err in holding in effect that the officers of the City Council of Augusta named in his order did not have authority or power under its charter to purchase or hire a boat or barge for its own public municipal purposes? In 28 Cyc. 350 (4) it is said: “Municipal ordinances, being established by the exercise of a delegated function of legislation for a limited locality and particular purposes, subordinate to the general government of the State, are obviously subject to many restrictions and limitations, which confine them to a comparatively narrow field. A community, although incorporated and invested with the power of local self-government, is none the less an integral part of the State, and its inhabitants are subject to the same general laws as the rural population, and their ordinances can not regulate civil rights and liabilities. As such inhabitants can not be deprived of their personal or property rights except by due process of law, so neither can they, in the exercise of municipal functions, renounce their allegiance or repudiate their civic obligations. They are incorporated for public purposes only, and may not pervert public powers to private purposes. The common weal of the community is the pole star of its organization, and to it the corporate course must always be directed, and all municipal legislation must subserve that end.” Under the last sentence of the quotation from Cyc. is annotated the case of Frederick v. City Council of Augusta, 5 Ga. 561. The complainants in the Frederick case sought to enjoin the collection of a tax which the City Council of Augusta by ordinance passed, “to'provide for the construction of a canal for manufacturing purposes, and for the better securing of an abundant supply of water for the city.” It was sought to enjoin the collection of the tax, upon the ground “that the city council had ho authority by law to levy taxes on real estate to be expended without the corporate limits, whereas the canal was constructed from a point called ‘Bulls Sluice’ some seven or eight miles from said city.” In that case this court held: “A
In the opinion it was said: “The counsel for the-plaintiffs in error insists in his argument, that the city council have no power or authority, under the charter and the laws of the land, to assess and collect the tax in question. By the 22d section of the first article of the constitution of this State, it is declared, ‘The General Assembly shall have power to make all laws and ordinances which they shall deem necessary and proper, for the good of the State, which shall not be repugnant to this constitution.’ Prince, 905. The same provision was contained in the constitution of 1789. Marbury & Crawford’s Digest, 15. On the 31st January, 1798, the City of Augusta was incorporated. The power intended to be delegated to the corporate-authorities of the city by the legislature, and the reasons therefor, may be gathered from the preamble to the act, which recites, ‘Whereas, from the extent and population of the Town of Augusta, its growing importance, both with respect to increase of inhabitants and diffusive commerce, it is indispensably necessary that many regulations should be made, for the preservation of peace and good order within the same; and whereas, from the many weighty and important matters that occupy the attention of the legislature at their general meeting, it has hitherto been found inconvenient, and may hereafter become more so, for them to devise, consider, deliberate on, and determine all such .laws, and regulations, as emergencies or the local circumstances of the said
The power delegated by the General Assembly to the City Council of Augusta, as appears by their charter, is to make assessments on the inhabitants of the-city, or those who hold taxable property therein, for certain specific objects, to wit: for the safety, benefit, convenience, and advantage of the said city, as shall appear to them expedient. -In pursuance of the authority thus delegated to them, the city council have adjudged by their ordinance that it is for the safety, benefit, convenience, and advantage of the City of Augusta that the canal, mentioned in the record should be constructed for the purpose of better securing an abundant supply of water for the city, as well as for manufacturing purposes, and have made an assessment upon the real estate, within the limits of the city, of one half of one per cent, on the value thereof, to enable them to accomplish that object. The inhabitants of the city are to be furnished with an abundant supply of water, to protect their property against fire, and for other purposes, and the payment of the tax assessed by the city council on the property of the inhabitants so to be protected is the means by which the contemplated benefits are to be enjoyed by them. We see nothing in the ordinance which is unreasonable, or which violates the charter, or the laws of the land.”
The language of the charter of the City of Augusta, construed in the Frederick case, was the same that is now to be construed. We are unable to distinguish the Frederick case from the case at bar. In that case the language of tlie charter was construed to be sufficiently broad to authorize the City Council of Augusta to construct a canal. Indeed it is'hard to conceive of a general welfare clause in a charter being broader than the language of the charter under
In the case of City Council of Dawson v. Dawson Waterworks Co., 106 Ga. 696, 709 (32 S. E. 907), it was said by Mr. Justice Cobb: “The authority .of the General Assembly to confer upon municipal corporations the power to tax is restricted, but it exists to the extent that a municipal corporation may be authorized to levy taxes for any purpose which is purely public and municipal in its nature.” The question therefore arises, was the purpose in the present case for which the tax was to be levied “purely public and municipal in its nature.” The answer of the defendants avers that it was. The only witness sworn, to wit, Hon. Julian M. Smith, mayor, testified in part as follows: “Naturally, as executive head of the City
On the question as to what constitutes public purposes, see Sun Printing Assn. v. N. Y., 8 App. Div. 230 (40 N. Y. S. 607); Holton v. Camilla, 134 Ga. 560 (68 S. E. 472, 31 L. R. A. (N. S.) 116, 20 Ann. Cas. 199); Saunders v. Arlington, 147 Ga. 581 (94 S. E.
“I am the present mayor of the City of Augusta and one of the party defendants in this case, and in my answer and that of the codefendants to this petition háve undertaken to show from what sources of revenue the city could provide money to make a purchase of the boat as recommended by the finance committee, if the finance committee’s action should be adopted by the city council. The
“The executions which grew out of taxes, or based on taxes growing out of realty, are based on taxes for previous years. As to whether in order to realize on those, if the property could be found, they would have to be levied, advertised, and sold, I would say, not necessarily; sometimes when you start a proceeding of that kind it comes in. Occasionally you have to go to the utter limit on it, though in a great majority of instances you do not have to go that far. As what proportion of those tax executions are for special improvements, like street-paving, sewers, or curbing, and things of that kind, I think about ten or fifteen per cent, of it, as well as I remember; but I would like to see the figures, to be exact; the figures will speak for themselves. I have here a memorandum of it; these are the comptroller’s figures. The amount of the $74,000, which is for curbing and sidewalk, is $10,767. Yes, it is true that under an ordinance of the City of Augusta the persons against' whom those executions are issued, and the property against which they are issued, have several years in which to pay it. I think the first payment is due when the bill is rendered, and then they have four years in which to pay the remainder; five installments to cover a period of four years. Q. Do these executions amounting to some $10,000—the defendants in them would have four years from the date of the execution in which to pay them up? A. Very often, when it gets into this shape, though it is largely because the first payment has not been made. Of course when the first payment is not met within the time, then the whole bill becomes due and payable. As a matter of practice, though, they are permitted, if they come across promptly, to pay it within the four-year period; that is not the law. That is not necessarily the practice; as a matter of practice, if they exercise reasonable promptness that is done in some cases. Very often when it works into that shape you ask the party to pay all of it, and he knows that is
In Gulf Paving Co. v. City of Atlanta, 149 Ga. 114, 118 (99 S. E. 374), it was said: “Before a liability for a legitimate current expense can be incurred by a municipality without creating a debt within the meaning of art. 7, sec. 7, par. 1, of the constitution of this State (Civil Code, § 6563), there must, at the time of incurring the liability, be a sufficient sum in the treasury which can be lawfully used to pay the liability incurred, or there must be authority and ability to raise a sufficient sum to discharge the liability by taxation during the current year; or, where the legitimate current expense is for paving a street upon the basis of assessment of abutting property, the money to satisfy the liability must be provided for-by the lawful assessment of property by the municipality to pay the cost of paving. City of Waycross v. Tomberlin, 146 Ga. 504 (91 S. E. 560).” And see Butts County v. Jackson Banking Co., 129 Ga. 801 (60 S. E. 149, 15 L. R. A. (N.S.) 567, 121 Am. St. R. 244). In Wilson v. Gaston, 141 Ga. 770, 772 (82 S. E. 136), it was held: “Where county authorities lawfully engaged in the working of public roads find it necessary to purchase
In Lewis v. Lofley, 92 Ga. 804 (19 S. E. 57) it was said.: “If there are funds in the county treasury sufficient for the purpose [the building of a court-house for the county], the county authorities may contract for its erection, payment to be made when the building is completed, or in installments as the work progresses. Or if taxes are levied, or can legally be levied for the year, sufficient for the purpose, they may contract to pay it out of such taxes
Applying the rules laid down in the foregoing decisions, we are of the opinion that the record does not show that the City Council of Augusta, or any one authorized to act for it, created or intended to create a debt within the meaning of the constitution, in order to purchase the boat or barge, as insisted by the defendants in error. We think that the presumption is that those who owe the executions to the amount of $70,000 would pay them, and also that they could be collected; and further that a boat or barge for the purposes indicated would be purchased within the amount that the City Council of Augusta had, or could collect from the executions within the year in which such contract might be made. There is nothing in the record to show that the persons enjoined would purchase a boat or barge for an amount exceeding that which the city council had in hand, or could collect from the executions. It will be
Judgment reversed.
Dissenting Opinion
dissenting. It is well established that powers which a city government may lawfully exercise must be derived from its charter or the general laws of the State. They can exercise no powers except those which are expressly conferred upon them by the State, or such as are necessary to the exercise of their corporate powers, the performance of their corporate duties and the performance of the purposes for which they are created. See 9 Mich. Enc. Dig. 490, for collection of authorities. It is also well established in this State that grants of power to a municipality are to be strictly construed. City Council of Augusta v. Mackey, 113 Ga. 64, 66 (38 S. E. 339). This was a case dealing with the city charter of Augusta. Another case dealing with the charter of Augusta is Augusta & Summerville R. Co. v. City Council of Augusta, 100 Ga. 701 (28 S. E. 126), in which the same rule of construction is applied. Admittedly the claim of the City of Augusta for their right to purchase a steamboat and engage in the business of river transportation depends upon whether the general welfare clause of the city charter affords sufficient basis. The general welfare clause in the charter of the City of Augusta is exceedingly broad, but, in our opinion, it amounts to no more aud confers no more authority upon the city than the general welfare clause stated in fewer words generally found in Georgia municipal charters. “While a municipal corporation may lawfully do such things as are necessarily incident to the proper discharge of its public functions, it is not, as a general rule, within the power of such a corporation to engage in an occupation or business such as is usually pursued by private persons.” Keen v. Mayor &c. of Waycross, 101 Ga. 588 (29 S. E. 42). In the opinion in that case it was said: “The primary design of the creation of a municipal corporation is, that it may perform certain public functions as a subordinate branch of government; and while it is invested with
Where the mayor and council of a municipality are threatening to do acts which are ultra vires, not authorized under the charter, it has been held proper to enjoin the authorities from carrying into effect such threatened acts. Mayor &c. of Americus v. Perry, 114 Ga. 871, 884 (40 S. E. 1004, 57 L. R. A. 230); Clark v. Cline, 123 Ga. 856, 864 (51 S. E. 617); Mayor &c. of Macon v. Hughes, 110 Ga. 795 (2) (36 S. E. 247); Cheney v. Ragan, 151 Ga. 735, 741 (108 S. E. 30). What is known as the general welfare of a municipal corporation falls within what is also known as the police power or powers to make police regulations, and includes authority “to make reasonable provision for the peace, safety, and convenience of its inhabitants.” Macon Consolidated Street R. Co. v. Macon, 112 Ga. 782 (38 S. E. 60). Under these powers a municipal corporation can not prohibit one from carrying on a lawful vocation when there is nothing in the character of the business carried on which is calculated to. interfere with “the peace, good order, and safety of the community.” Watson v. Thomson, 116 Ga. 546 (42 S. E. 747, 59 L. R. A. 602, 94 Am. St. R. 137). On the same principle these general terms do not afford authority for the municipality itself to enter into a business occupation such as is usually carried on by private individuals or private corporations, and which has
For the reasons stated above we think the judgment of the court granting the interlocutory injunction should be affirmed.