Summary
finding contract “ultra vires and void, in that it restricted legislative and governmental powers of future councils of the city”
Summary of this case from Miller Cnty. Bd. of Educ. v. McIntoshOpinion
17013.
APRIL 10, 1950.
Petition for injunction. Before Judge G. C. Anderson. Richmond Superior Court. December 23, 1949.
Cumming, Nixon Eve, for plaintiffs.
William P. Congdon, Congdon, Harper Leonard, and Fulcher Fulcher, for defendant.
1. The preservation of the public health is a governmental function. Love v. Atlanta, 95 Ga. 129, 133 ( 22 S.E. 29). The establishment and maintenance of a sewerage system by a municipality is for the protection of the public health, and is a governmental function. 38 Am. Jur., 334, § 633; City Council of Augusta v. Cleveland, 148 Ga. 734 ( 98 S.E. 345); Foster v. Savannah, 77 Ga. App. 346, 349 ( 48 S.E.2d 686).
2. A municipal corporation has no power to make contracts restricting or limiting its legislative or governmental powers. Macon Consolidated Street R. Co. v. Macon, 112 Ga. 782 ( 38 S.E. 60); Horkan v. Moultrie, 136 Ga. 561, 563 ( 71 S.E. 785); Aven v. Steiner Cancer Hospital, 189 Ga. 126, 142 ( 5 S.E.2d 356).
3. The alleged contract between the City Council of Augusta and the Commissioners of Richmond County was ultra vires and void, in that it restricted legislative and governmental powers of future councils of the city. The plaintiffs did not acquire any rights to sewerage service under the ultra vires and void contract, and the city would not be estopped from asserting the invalidity of the contract at any time. Neal v. Decatur, 142 Ga. 205 ( 82 S.E. 546).
4. The contention, that the ordinance, assessing a charge for the use of city sewers by non-residents of the city, was enacted through malice or spite, affords the plaintiffs no right to equitable relief. The courts will not inquire into the motives of a municipal council in the enactment of an ordinance. 37 Am. Jur., 819, § 182; Clein v. Atlanta, 164 Ga. 529, 541 ( 139 S.E. 46, 53 A.L.R. 933); South Georgia Power Co. v. Baumann, 169 Ga. 649, 653 ( 151 S.E. 513).
5. The trial court did not err in sustaining the general demurrers of the defendant.
Judgment affirmed. All the Justices concur.
No. 17013. APRIL 10, 1950.
W. W. Barr, and approximately 60 others, alleging themselves to be residents of Richmond County, owning improved property in that section west and southwest of the City of Augusta, known as Forrest Hills, filed a petition against the City Council of Augusta, and in substance alleged: On November 6, 1926, the defendant entered into a written contract with the Commissioners of Richmond County, in which the defendant agreed that a certain sewerage system would be made available to the public generally in Richmond County, under the same terms and conditions applicable in the City of Augusta. The contract was authorized by the general-welfare clause of the charter of the city, and was pursuant to the inherent powers of the defendant, acting in a non-governmental capacity. It was authorized by the Constitution, art. 7, sec. 6, par. 1. The plaintiffs are members of the public for whose benefit the defendant entered into the contract. It is recited in the contract that the sewer system was conveyed to the defendant by John P. Mulherin without charge or cost to the defendant. The use of the system by the plaintiffs has benefited the defendant in the increase of taxable values of the city, since large and expensive homes have been built in the Forrest Hills section by persons who have established commercial and industrial activities within the City of Augusta. The health of the citizens of the city would be in grave jeopardy were it not for the performance of the contract to dispose of the resulting increase in sewage. The plaintiffs, or their predecessor in title, have erected costly improvements in reliance upon the performance in good faith by the defendant of its obligations under the contract for disposing of sewage, under the same terms and conditions as are applicable in the City of Augusta. On July 5, 1949, at the regular meeting of city council, an ordinance was adopted providing that an assessment would be made for the privilege of connecting, or continuing connections, with the sewer system of the defendant outside of the corporate limits of the city. The charge to be made is 30%, each month, of the water bill charged by the defendant, and if the assessment is not paid, water service will be discontinued until paid. The ordinance is illegal and void, in that it violates art. 1, sec. 3, par. 2, of the State Constitution; and art. 1, sec. 10, par. 1, of the Constitution of the United States. It is an unreasonable discrimination against the plaintiffs in favor of the citizens of Augusta, in violation of art. 1, sec. 1, par. 2, of the Constitution of the State. The disposal of sewage both within and without the corporate limits of the city is a public service of which the defendant has a monopoly, and the defendant is therefore authorized to charge only to the extent necessary to defray the expenses of such service. The ordinance provides for the collection of an arbitrary amount, based on the water charge, which is unrealistic, because the plaintiffs use much water for the purpose of maintaining shrubs, plants, lawns, and gardens. The passage of the ordinance was not for the legitimate purpose of collecting revenue, but it was passed through malice, and was an unjust and illegal attempt to force the plaintiffs to consent that their property be brought within the corporate limits of the city. The plaintiffs are willing to pay, and make a continuing tender of payment, for their proportionate share of the expense of operating and maintaining the system, together with a proper amount to be charged to the depreciation of the physical properties, and for the retirement of indebtedness. Under the provisions of the ordinance, should the plaintiffs fail to pay the charge assessed against them for the use of the sewer system, the water supply to their premises will be discontinued, with consequent jeopardy to their comfort, convenience, and health, and to their property values. The construction of the plaintiffs' homes made sewage disposal therefrom impossible without unreasonable and confiscatory expense. The plaintiffs will be forced to continue to pay an illegal charge for the use of the sewer system, if they are not granted an injunction to restrain the defendant from assessing and collecting a charge from the plaintiffs.
The prayers were: for discovery by the defendant of the total expense for the maintenance and operation of the sewer system, the amount of bonds and revenue certificates outstanding for the development of the system, the expenses of sewage-disposal service to persons outside the city, and the number of citizens of the city who use the sewer system acquired from John P. Mulherin; for process; that the defendant be enjoined from collecting the amounts assessed against the plaintiffs, and from discontinuing water service to them on their failure to pay the charge assessed under the ordinance; and for other relief.
The general demurrers of the defendant were sustained, and the exception is to that judgment.