Lawson v. City of Moultrie
22 S.E.2d 592
Ga.
1942
Check Treatment
Grice, Justice.

In Miller v. Head, 186 Ga. 694 (198 S. E. 680), this сourt held that neither the revenue-certificate law of 1937 (Ga. L. 1937, pp. 761 et seq.), nor the resolution adopted by the authorities of the county having for its purpose the establishment and maintenance of a waterworks system in accordance with that act, was violative of the cоnstitution of this State, art. 7, sec. 7, par. 1 (Code, § 2-5501), limiting the powers of counties and municipalities in relation to debt. That decision dealt with the right of a county to construct a waterworks system, and, in anticipation of the collection of revenues therefrom, to issue certificates payable solely from such revenues. The statute there considered, the attack on which was not sustained, gave the same rights to towns and cities that it did to counties. In the opinion authorities are referred to and discussed. The cases of Morton v. Waycross, 173 Ga. 298 (160 S. E. 330), Benfroe v. Atlanta, 140 Ga. 81 (78 S. E. 449, 45 L. R. A. (N. S.) 1173), and Byars v. Griffin, 168 Ga. 41 (147 S. E. 66), were analyzed and distinguished, and the result reachеd that since the proposed system of waterworks was to be an entirely new undertaking, and no existing funds or property of the county were to go into it for the purpose of creating a combined enterprise as basis for the production of income from which the certificatеs were to be retired, it did not create a debt within the meaning of the constitutional provision hereinbefore ‍‌​‌​​​‌​‌​‌‌‌‌‌‌‌​‌​​‌​​‌‌‌‌‌‌‌​‌‌‌‌​​​‌​‌‌​‌​‌‌‍referred to. Before the act of 1939 (Ga. L. 1939, pp. 362 et seq.) there was no law making applicable the provisions of the act of 1937 to improvements, betterments, and extеnsions of existing plants. This was provided for in an amendment to subsection (d) of section 3 of the act of 1937, by adding a new section to be numbered d-1, as fоllows: “To fix the value of existing undertakings at the time the school district, *701 county, city or town desires to reconstruct, improve, better, or extend such undеrtaking, and to pledge to the payment of the revenue-anticipation certificates and the interest thereon, issued for said undertaking undеr this act, such part of the revenues of such undertaking as the cost of the reconstruction, improvement, betterment, or extension of the undеrtaking bears to the said cost plus the value of the existing undertaking before reconstruction, improvement, betterment, or extension. The prоvisions of this subsection shall not be construed to restrict ox limit the powers granted in subsection (d) of section 3.” Acts 1939, p. 365, sec. 2. The General Assembly herе provided, as had been done in the act to which the amended act. related, and which was considered by this court in Miller v. Head, supra, that the certificates should be paid only from “such part of the revenues of such undertaking as the cost of the reconstruction, improvement, bettеrment, or extension of ‍‌​‌​​​‌​‌​‌‌‌‌‌‌‌​‌​​‌​​‌‌‌‌‌‌‌​‌‌‌‌​​​‌​‌‌​‌​‌‌‍the undertaking bears to the said cost plus the value of the existing undertaking before reconstruction, improvement, betterment, or extension.” Every argument used by this court in Miller v. Head, supra, to sustain the ruling there made supports the legislation here involved. The ground was thoroughly plowed in that case, and it would serve no useful purpose to go over it again. A logical and reasonable application of thе principle there ruled requires a ruling here that neither the act nor the ordinance violates the constitutional provision above referred to.

A further constitutional attack is made on the two acts above referred to, for that provision is there made for the appointment of a receiver in certain instances, and that such provision is an invasion by the legislature of the powers ‍‌​‌​​​‌​‌​‌‌‌‌‌‌‌​‌​​‌​​‌‌‌‌‌‌‌​‌‌‌‌​​​‌​‌‌​‌​‌‌‍of the judiciary, contrаry to the constitution, art. 1, sec. 1, par. 23 (Code, § 2-123), which declares that the legislative, judicial, and executive powers shall forever remain sеparate and distinct. This contention is without merit.

The ordinance is attacked as void because contrary to the law as contained in thе Code, § 69-202, which declares that “one council may not by an ordinance bind itself, or its successors, so as to prevent free legislation in the mаtter of municipal government,”, because the ordinance obligates successive governing authorities of the city to abide by its terms. The seсtion last referred to was codified from a decision of this court in Williams v. West Point, *702 68 Ga. 816. The ruling was “A municipal corporation may bind itself by, and can not abrogatе, any contract which it has the right to make under its charter, but one council can not, by ordinance, bind itself and its successors to a given line of рolicy,.or prevent free legislation by them in matters of municipal government. Therefore an ordinance that no license to retail liquor should be granted for less than $500.00 per annum until the expiration of those for which that sum was paid Avas void.” The quoted language recognizes a distinctiоn which is applicable in the instant case. Having ruled that the city had the right to issue these ‍‌​‌​​​‌​‌​‌‌‌‌‌‌‌​‌​​‌​​‌‌‌‌‌‌‌​‌‌‌‌​​​‌​‌‌​‌​‌‌‍certificates, that is, to make the contract under thе act of 1939, supra, it had the right to agree that throughout the period which these, certificates run the city would keep the property insured, hаve audits made, provide for the payment of a certain percentage of the revenues into a certain fund, etc., all of which, аnd similar provisions including the manner in which the plant should be operated, were part of the contract between it and the holders of the certificates. These portions of the ordinance relate, not to the governmental functions, but to the proprietary action of the municipality. See the authorities cited in Aven v. Steiner Cancer Hospital Inc., 189 Ga. 126, 142 (5 S. E. 2d, 356). “In the operation of an electric-light and water plant, a municipal corporation is engaged in a nongovernmental function.” Carruthers v. Hawkinsville, 42 Ga. App. 476 (156 S. E. 634), and cit. In 2 McQuillin on Municipal Corporations, § 871, the following may be found: “In the absence, therefore, of а valid provision to the contrary the council of a municipal corporation having the authority to legislate on any given subject may exercise that authority at will by enacting or repealing ‍‌​‌​​​‌​‌​‌‌‌‌‌‌‌​‌​​‌​​‌‌‌‌‌‌‌​‌‌‌‌​​​‌​‌‌​‌​‌‌‍an ordinance in relation to such subject-matter. Such in varying form is the statement of the rulе when the ordinance is not a contract, or one that is, from its nature, exhausted from a single exercise.” The contentions of the intervenоrs here dealt with afford no reason for denying validation.

The averment of the intervenors that the portion of the ordinance fixing the value of the present system is without effect, and asserting that as a matter of fact the existing system exceeds in value the amount named by the city counсil, was properly stricken on demurrer. The claim is not that the valuation was arbitrarily fixed, or was fraudulently named, but in effect it avers *703 that the city authorities were mistaken when in the exercise of their judgment they found as a matter of fact that the valuation of the existing system was one hundred and five thоusand dollars. In order to comply with the act under which these certificates were issued, a valuation had to be made. The business affairs of а municipality are committed to the corporate authorities, and the courts will not interfere except in a clear case of mismanagement or fraud. McMaster v. Waynesboro, 122 Ga. 231 (50 S. E. 122).

Judgment affirmed.

All the Justices concur, except Hewlett, J., not participating.