173 Ga. 650 | Ga. | 1931
By the act of August 23, 1927 (Ga. Laws 1927, pp. 779, 782), the same being an amendment to the charter of the City of Atlanta, it is provided that “The rate of charge for water or water service of” the waterworks “department shall at no time be more than the price fixed for same as of September 1, 1926; provided, however, that said rate of charge may be increased temporarily at any time solely for the purpose of meeting a deficit
Eckford, as a citizen of the Borough of Atlanta and a person receiving water service therefrom through the Atlanta Waterworks, in his own behalf and in behalf of all other persons similarly situated, filed his petition against the Borough of Atlanta, the mayor and general council thereof, and the superintendent and general manager of the Atlanta Waterworks, in which he alleged the facts hereinbefore set out; and sought to enjoin the ordinance of January 20, 1931, upon the ground that it was null and void because in conflict with the act of August 23, 1927. The defendants demurred upon various grounds, which were overruled by the court below. On February 2, 1931, the court granted an interlocutory injunction, restraining the Borough of Atlanta, from iindertaking to enforce the gross water rates without rebates or discounts, which were in force on the date of the passage of the act hereinbefore referred to, and which were repealed by the ordinance of January 31, 1931. The judge granted to the defendants a supersedeas pending a decision upon the bill of exceptions brought to review said ruling; and in this order he directed that the dis
The relation of attorney and client is created by contract; and litigants who have not thus assumed liability for attorney’s fees can not generally be held liable therefor, although they have been benefited, directly or indirectly, by the attorney’s services. 2 R. C. L. 1052, § 156.
A court of equity, however, will in its discretion order an allowance of counsel fees to a complainant who at his own expense has maintained a successful suit for the preservation, protection, or increase of a common fund or common property, or who has created at' his own expense, or brought into court, a fund in which others may share with him. Price v. Cutts, 29 Ga. 142 (74 Am. D. 52); Hempstead v. Meadville Theological School, 286 Pa. 493 (34 Atl. 103, 49 A. L. R. 1145, 1150), note 11a, and cit.
The above principle does not apply in ordinary adversar}'' proceedings. Whitney v. Jersey Shore, 266 Pa. 537 (109 Atl. 767). This proceeding was brought for none of the purposes mentioned in the second ruling just stated, and for which a court of equity will allow fees to counsel for the plaintiff instituting the proceeding. The suit was not instituted for the preservation, protection, or increase of a common fund, or by a plaintiff who has created at his own expense, or brought into court, a fund in which others may share. The proceeding was brought to enjoin the collection by the city of excessive water rates, and was not brought for the purpose of bringing into court a fund which would be shared in by the plaintiff and others similarly situated. The
The allowance of counsel fees from a fund is capable of great abuse, and should be exercised with the most jealous caution in regard to the rights of litigants, lest thereby the administration of justice be brought into reproach. In most cases it is better to leave those concerned to contract for the compensation to be paid for the services rendered or received.
Applying the above principles, the trial judge did not err in refusing to allow counsel fees to plaintiff to be paid out of the discounts on the water rates collected by the city and deposited in a separate account subject to the order of the court.
Judgment affirmed.