6 S.E.2d 372 | Ga. Ct. App. | 1939
Lead Opinion
The court erred in overruling the general demurrer to the petition.
The powers which a city government may lawfully exercise must be derived from its charter or the general laws of this State.Atlanta Railway and Power Co. v. Atlanta Rapid Transit Co.,
The rule with respect to the grant of powers to a municipality is aptly stated in Georgia Railway Power Co. v. RailroadCommission,
With these principles in mind we shall consider the language of the charter. There is no provision giving to the Town of McIntyre the authority to make contracts. In Mayor c. of Rome
v. Cabot, 28 Ga. 50, it was held that where the charter conferred upon the municipality the authority to make any contracts which it might deem necessary for the public welfare of the city, there was necessarily implied, under such a grant of power, the authority to construct waterworks for the city. See also Adams v. Rome, 59 Ga. 766. From the expressly granted power to make contracts in furtherance of the general welfare there was implied the necessary power to issue bonds and incur a debt for such purpose in the construction of waterworks. InHeilbron v. Cuthbert, 96 Ga. 312, 315 (23 S.E. 206), the charter under consideration provided that the city should have authority to "contract and be contracted with; sue and be sued; . . and . . do all things for the benefit of the city, and all things not in violation of the constitution and laws of this State." It was said there that "the `general welfare clause' in this charter is very broad and liberal in its terms," and included within its expressly granted power the necessary implication that the city could do the things necessary to build water works. The legislature may create a municipal corporation with large powers or small powers. It may declare that such city can erect and maintain waterworks, lighting plants, and the like, or it can withhold such power. Unless the power is conferred as *492
stated above, it is withheld. See Farmer v. Thomson,
In the case of Saunders v. Arlington, 147 Ga. 581, 582 (94 S.E. 1022, Ann. Cas. 1918D, 907), the charter granted to the city used this language: "Said corporation shall have and enjoy all the rights, privileges, and powers incident to such corporations, not repugnant to the constitution of the United States, the constitution of this State . . and . . shall have full power and authority to enact and enforce all ordinances, by-laws, rules, and regulations necessary for the good government of said town and securing the health of the inhabitants and protection of property therein." The charter also provided under the general welfare clause that the town might issue bonds. The provisions of the general welfare clause were very broad and liberal in such a charter and allowed all powers incident to such corporations.
There is no such general welfare clause in the charter now under consideration. The enumeration of special powers in a municipal charter is often concluded with a clause conferring general authority to pass all ordinances which may be necessary for the promotion of the public safety and general welfare of the corporation which are not inconsistent with the constitution and general laws of the State. See Farmer v. Thomson, supra;Grace v. Hawkinsville,
Having decided that the general demurrer should have been sustained it becomes unnecessary to consider the exceptions in the main bill.
Judgment reversed on cross-bill. Main bill dismissed.Broyles, C. J., concurs. MacIntyre, J., dissents.
Dissenting Opinion
In Mayor c. of Rome v. Cabot,
supra, the court held: "Under a power conferred by the legislature upon a municipal corporation, to make all contracts in their corporate capacity, which they may deem necessary for the welfare of the city, and which do not conflict with the constitution and laws of the Federal or State governments, they have the right to make a contract for the construction of waterworks." See also, Heilbron v. Cuthbert, supra;Saunders v. Arlington, supra; Hall v. Calhoun,
Dissenting Opinion
I still dissent as to the original opinion, but concur in the proviso allowing the plaintiff to amend, and, if he does so, opening the proceedings for demurrer.
Addendum
It nowhere appears in the petition for the validating of these bonds that they were sought to be issued in furtherance of a contract made with the United States Government for assistance in making such public improvements. We decided the case on the record before us. It does appear in the record in the main bill, according to the answer filed by the Town of McIntyre to the petition for validation filed by the solicitor-general, that, in a notice for the holding of the election, it had stated that the United States Government had offered a grant of 45 per cent. of the cost of a waterworks system. In the petition there was no allegation at all in reference to Federal assistance or contracts therefor.
We adhere to our opinion heretofore rendered with the proviso that the plaintiff, if he so desires, may amend his petition before the judgment of this court is made the judgment of the court below and show, if he can, that the provisions of the act of 1939 are applicable to the proceedings for validation, which of course will open the matter again for demurrer. The judgment heretofore rendered is qualified to this extent. Nothing is decided with reference to the issues raised in the main bill of exceptions.
Rehearing denied. Broyles, C. J.,concurs. *495