10 S.E.2d 190 | Ga. | 1940
1. The uniform airports act of 1933 (Ga. Laws 1933, p. 102) authorizes municipalities of this State to condemn land beyond their limits, for the establishment or expansion of airports and landing fields.
2. Under the provisions of that act one municipality may condemn land within the geographical limits of another municipality.
3. The petition for injunction stated no cause of action, and the court did not err in dismissing it on general demurrer.
The first point made by counsel for the plaintiffs is that the act does not in fact confer upon municipalities any right to condemn property outside of their territorial limits. This argument is bottomed on the fact that section one of the act which gives municipalities power and authority "without the geographical limits of such municipalities" refers merely to ownership, operation, etc., of airports and landing fields, and that section 3 which confers the power of condemnation does not contain this broad language. The right of a municipality to own property for a particular purpose, given by express statute, does not authorize the municipality to condemn property for such purpose. See Markham v. Howell,
An examination of the decisions which announce the first-stated principle shows that whether or not a municipality can in fact exercise a given power beyond its territorial limits, in the absence of express language to such effect, depends at last upon the nature of the subject-matter to which the power relates, and whether a full and complete exercise of the power reasonably requires action beyond the territorial limits of the municipality. "The general doctrine that a municipal corporation can only exercise its powers within its corporate limits is founded on the fact that generally no authority is given by charter to act beyond such limits; and hence the corporate authorities are restricted in that regard by the general rule that they can exercise only such powers as are granted by express words. The general rule is, however, subject to the qualification that a municipal corporation may also do those things which are fairly or necessarily implied in or incident to the powers expressly granted." Dillon on Mun. Cor., 1627, note. Thus inLangley v. Augusta,
2. A further point made by counsel for the plaintiffs is that this grant of power to municipalities to condemn property "within and without the geographical limits of such municipalities" should not be held to authorize one municipality to condemn land within the territorial limits of another municipality. It is not disputed that the General Assembly has the power to grant such authority if it sees fit to do so. Lee County v. Smithville,
Accordingly we do not think that it can be said as a matter of law that one municipality can not condemn property for airport purposes within another municipality. Prima facie the power exists under the terms of the act, the only limitation being that some substantial necessity exist for taking the property situated as it is within another municipality. The latter requirement is well illustrated by the ruling in W. A. R. Co. v. W. U. Tel.Co.,
To summarize, our interpretation of the uniform airports act is that municipalities are thereby invested with absolute power to appropriate by condemnation land necessary for the establishment or expansion of airports and landing fields either within or without their respective boundaries. If it should appear that it is reasonably necessary for a municipality such as the City of Atlanta, in order to expand an airport owned and operated by it, to do so within the confines of an adjoining municipality, we are of the opinion that the act gives it such authority. The governing authorities of a municipality must exercise a reasonable discretion in this connection; and if it appears that they act in bad faith, and there is no necessity, reasonable or otherwise, for the invasion of the territory lying within the limits of another municipality, the courts will intervene and enjoin them. Thus no municipality is given the right to wantonly injure and destroy another municipality. Especially do we think that the uniform airports act, when taken in connection with the act of 1927 (Ga. Laws 1927, p. 779), authorizes the City of Atlanta to condemn property within the confines of another municipality. The act of 1927 expressly authorizes the City of Atlanta to acquire land for the establishment or expansion of an airport either within or without its territorial limits, provided that the land acquired be within twenty-five miles of the center of the city. Among other things, it is provided in this act that "Any land or locations leased or purchased or operated by the City of Atlanta as a municipal landing field . . shall be under exclusive jurisdiction and control of said city, and no city or town in which said land maybe located shall have or exercise any police jurisdiction over same, nor shall such other municipality or town have authority to pass ordinances regulating the operation of said landing fields." Also, "Nor shall any other municipality or town have anyauthority, although said land may be located within *737 its limits, to charge or exact any license fees or occupation taxes for the operation of said landing field therein, or for the operation or conduct of any business or occupation thereon." (Italics supplied.) Under the above provisions it is clear that this act authorized the City of Atlanta to establish or expand an airport within the confines of another municipality, provided the land to be acquired was within twenty-five miles of the center of the city. When the provisions of the uniform airports act are construed in connection with this act, it seems reasonable to hold that as to the City of Atlanta the right of condemnation given in the uniform airports act is as broad as the power already vested in said city in regard to acquiring land for the purpose of establishing or expanding an airport. The petition does not attempt to set up any abuse of discretion or bad faith on the part of the City of Atlanta in seeking to condemn land for the expansion of its airport within the City of College Park. Accordingly we must assume, the contrary not appearing, that there is a reasonable necessity for its proposed action. Nor does the petition allege that the City of College Park is more than twenty-five miles from the center of the City of Atlanta. We are therefore of the opinion that the plaintiffs made no case for issuance of an injunction against the taking of their property.
The further objection is made that from allegations in the petition it appears that crossing the particular tracts of land sought to be condemned are several streets of the City of College park, devoted to public use, and that the power of condemnation does not exist in respect to such property. It is to be noted that this point is made by the property owners, and not by the municipality of College Park, which is not a party to this case. In line with the principles announced in the foregoing divisions of the opinion, it must be held that the power of condemnation within the area of another municipality necessarily implies that such condemnation might extend to public streets of that municipality, subject of course to the regulation or supervision of the exercise of that power by the courts, if under a particular state of facts it might be shown to be unreasonable and done in bad faith. The rule in that connection has already been discussed. Since the petition contains no averment which would show that the power which we have held to exist is being unreasonably exercised, and none that would show reason *738 to protect the present public use to which the streets are alleged to be devoted, and since no allegation is made which would show any damage to the plaintiffs which could not be appropriately measured in the condemnation proceedings, we hold that these averments respecting the public streets afford no basis on which the plaintiffs may prevail. It follows that the judge did not err in dismissing the action on general demurrer.
The ruling made in the first division of this opinion represents the views of all of the members of the court. The second division is the opinion of the majority of the court, but does not accord with the views of the writer or of Mr. Justice Bell, who dissent therefrom. Our views on this question are as follows: There is no doubt, of course, that the General Assembly has the power to grant the authority here asserted by the City of Atlanta if it sees fit to do so. We are also aware of the fact that the terms of the act which authorize a municipality to condemn land "within or without" its geographical limits are in their broad and literal sense sufficient to authorize a municipality to condemn land without its borders and within the limits of another municipality. It does not necessarily follow, however, from the mere fact that the terms of the act are broad enough to include the power, that it should be held to have been the intention of the General Assembly to provide therefor. To illustrate, in Chestatee Pyrites Co. v. Cavenders Creek GoldMining Co.,
Therefore we deem the question in the present case to be, are there sufficient reasons to assume that the General Assembly, in vesting in the several municipalities in this State the authority to condemn lands for airports either "within or without" their geographical limits, did not intend to authorize a municipality to go beyond its own limits and into the limits of another municipality? It must be admitted that the power of one municipality to condemn land in another municipality under any circumstances is an unusual and novel one. "A municipal corporation is a legal institution formed by charter from sovereign power, erecting a populous community of prescribed area into a body politic and corporate, with corporate name and continuous succession, and for the purpose and with authority of subordinate self-government and improvement and local administration of affairs of State." 43 C. J. 65. The very nature of municipal corporations makes it reasonable to assume that the General Assembly in vesting in each the power to determine the necessity for and location of airports and landing fields to serve the needs of their respective communities, and to thus *740
indirectly promote the commerce and general welfare of the State, prima facie intended to give the authorities of each municipality the exclusive right to determine whether an airport or landing field should be situated within its own boundaries. Even where municipalities lie contiguous to each other, it does not seem that it should be held, in the absence of express language or that which would admit of no other implication, that the General Assembly intended to establish a conflict of authority and jurisdiction between them within the boundaries of each other in the appropriation of land for airport purposes. It is to be noted that the act does not require municipalities or counties to establish or expand airports, but, in so far as appears from its terms, the matter remains in the legislative mind one principally of local concern and policy to be determined by local needs and limitations. There is no particular reason to believe that the General Assembly did not think that the governing authorities of one municipality were a sufficient exclusive agency to determine whether or not any land within its borders should be appropriated for such use. We agree that had the power been expressly granted it could not be abused; but we can not agree that under this statute the General Assembly intended to authorize a municipality, after determining that it needs and desires to establish or expand an airport, to condemn property in another municipality adjacent to its boundaries, even though in order to establish or expand such airport a plausible and reasonable necessity for doing so could be shown. This would be to say that the General Assembly has intended in certain cases to make the establishment or expansion of an airport by a condemning municipality of greater importance and concern to the State than virtually the continued existence of another municipality wherein the land is sought to be taken, depending upon the size of the latter and the amount of land necessary to be taken for the purpose. For in looking to other parts of the act for enlightenment we find that in section 2 of the act it is provided that any property acquired for the purpose of an airport shall be "acquired, owned, leased, controlled, or occupied for public, governmental, and municipal purposes." And in section 8, municipalities, counties, etc., acquiring or establishing airports or landing fields without their geographical limits are specifically "granted the right to enforce police regulations on such airports or landing fields." In the latter connection section 1 *741
also authorizes municipalities, etc., to establish and "police," etc., airports "within or without the geographical limits of such municipalities." Thus the invaded municipality would in effect be stripped of its police powers over that portion of its territory taken, as well as the right to tax it for municipal purposes. SeePenick v. Foster,
Thus it is seen that the property appropriated would virtually be taken from within the boundaries of the invaded municipality and its boundaries would for all substantial purposes, though of course not actually, be changed. Was it the intention of the General Assembly to leave the powers of all the municipal corporations thus in conflict with each other? Or was it the intention that the powers of each as granted in its charter should be left intact and free from coercion or force by another or others? We think that any such confusion or conflict of power in such co-ordinate political subdivisions was not intended by the legislative body, and that it did not intend to authorize one municipality to condemn land in another municipality for airport purposes. The considerations mentioned seem to us to form strong reasons to assume that the General Assembly did not by the terms used in this act intend to grant to all municipalities such unusual power; but that on the contrary, if they had so intended, they would have either used express language or that which would admit of no other implication. It is well known that we have not reached the point in this State of a congestion of municipalities, and that surrounding the limits of perhaps each and every one lies abundant property which may be devoted to airports and landing fields, which does not lie within the confines of another municipality. It was, we believe, the intention of the General Assembly to authorize municipalities to appropriate such territory, and not that lying within another municipality. Concerning the act of 1927 amending the charter of the City of Atlanta, we need only say that while that act by necessary implication grants to that city the authority toacquire land in an adjoining municipality, it did not grant the authority to condemn land therein for such purpose. It is indeed significant to us that the General Assembly did not see fit in that act to grant *742 to the City of Atlanta the unusual right to invade an adjoining municipality by condemnation of land situate therein. If we correctly understand the argument of counsel for the City of Atlanta in the present case, as contained in the brief filed, it is not insisted that the act of 1927 adds anything to the power of the city to condemn land which is provided for in the uniform airports act.
Attention is called to the fact that the act authorizes one county to condemn land in another county for airport purposes. This is manifestly true, for counties are authorized to condemn land "within and without" their geographical limits, and a county can not condemn land without its borders without going into another county. It is not contended that like reasoning is applicable to the provision in regard to municipalities, but it is suggested that since the General Assembly authorized one county to condemn land in another county it is reasonable to assume that they were of like mind in reference to municipalities. The argument is not wholly without force, but it is not sufficiently strong to overcome what we believe to be the most reasonable view of the act.
The case of Lee County v. Smithville,
The writer and Mr. Justice Bell are of the opinion that the petition set out a cause of action, and should not have been dismissed on demurrer.
Judgment affirmed. All the Justices concur, except Reid, C.J., and Bell, J., who dissent. *744
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