Opinion
27546.
SUBMITTED NOVEMBER 13, 1972.
DECIDED JANUARY 22, 1973.
Injunction. Liberty Superior Court. Before Judge Stebbins.
Richard D. Phillips, J. Sidney Flowers, for appellant.
Brennan Clark, Griffin B. Bell, Jr., for appellees.
The City of Midway has no authority to enact and enforce ordinances which are designed to compel everyone within the city to use city-supplied water, if and when available, and to prevent absolutely any repairs, alterations, or improvements on a privately owned well, pump, or water system.
SUBMITTED NOVEMBER 13, 1972 — DECIDED JANUARY 22, 1973.
The City of Midway initiated an action in March, 1972, against Midway Nursing and Convalescent Center, Incorporated, The Midway First Presbyterian Church, Incorporated, Midway First Development Corporation, Charles A. Maxwell, Sr., and the U. I. C. Corporation alleging that the city was in the process of providing a municipal water system to serve the entire city, that it had drilled a well in close proximity to the property of the development corporation, that the development corporation was constructing a nursing home on this property, that water would be supplied from a well on the church property, and that Maxwell was the motivating force behind the actions of the other defendants. The city further alleged that if the nursing home accepted water from the city system the city could obtain a grant and loan from federal authority and could provide a reliable and inexpensive supply of water to all citizens, and that the system would include a high level tank, fire hydrants, and fire protection for the nursing home and the entire city. The city also alleged that it was acting under its police powers and as a matter of public policy to protect the public health, safety, morals, and welfare of the public, and that the defendants' actions and proposed actions were designed to circumvent this policy. On this basis the city sought injective relief.
The defendants moved to dismiss the complaint for failure to state a claim, whereupon the city amended its complaint, alleging that it was duly authorized to construct and maintain a water system, and that pursuant to this authority it had enacted a series of ordinances requiring the use of city supplied water where available, and that although water is available, the defendants have refused to make connection, thereby causing immeasurable damage to the city. The amended prayers for relief are to enjoin the church, the development corporation, Maxwell, and the U. I. C. Corporation from furnishing water to the nursing home, and to enjoin the nursing home from receiving water from the other defendants in competition with the city.
The city attached as an exhibit ordinances comprising its Water Code, Section 17 of which reads as follows: "Every residence, house or business establishment in the city is hereby required to connect and tap-in to the city water system when a water line is available on the street which fronts or is contiguous to the property on which the structure is erected, and to pay minimum charge for this type consumption or for the actual amount of water consumed, which ever is greater."
In defense the defendants asserted that § 17 of the Water Code, supra, violates due process and equal protection under the United States and Georgia Constitutions. The defendants also moved to dismiss the complaint as amended for failure to set forth a claim for relief.
Thereafter the plaintiff added as Count 2 a complaint for declaratory relief, including therewith as exhibits additional ordinances which provided that no deep well for water could be drilled in the city without permission and that henceforth no repairs, alterations, or improvements shall be allowed in the city on privately owned water pumps, wells, and systems where municipal water is available to the premises on which such wells or systems are located.
Following an evidentiary hearing the trial judge on May 2, 1972, dissolved a temporary restraining order and denied a motion of the plaintiff for interlocutory injunction. The following day the defendants moved to dismiss the complaint, as amended by Count 2.
The city appeals an order entered on August 16, 1972, dismissing the entire complaint for failure to state a claim for relief.
"It is elementary that the powers which a city government may lawfully exercise must be derived from its charter or the general laws of this State. Mayor c. of Savannah v. Wilson, 49 Ga. 477; Atlanta R. Power Co. v. Atlanta Rapid Transit Co., 113 Ga. 481 ( 39 S.E. 12). And it is equally well settled that all municipal charters are strictly construed, and that powers which are not expressly, or by necessary implication, conferred upon the corporation can not be exercised by it. Lofton v. Collins, 117 Ga. 434, 438 ( 43 S.E. 708, 61 LRA 150); Walker v. McNelly, 121 Ga. 114 ( 48 S.E. 718); Town of McIntyre v. Baldwin, 61 Ga. App. 489 ( 6 S.E.2d 372). This court in the Lofton case said: 'A grant of power to a municipal corporation must be strictly construed, and such a corporation can exercise no powers except such as are expressly given or are necessarily implied from express grants of other powers.'" City of Macon v. Walker, 204 Ga. 810, 812 ( 51 S.E.2d 633).
The defendants concede the authority of the City of Midway to establish and maintain a water system. What is disputed is the authority of the city to compel use of its water system within the city to the exclusion of use of a private water system.
We recognize the authorities cited in 56 AmJur2d 624, Municipal Corporations, § 573, including Hutchinson v. Valdosta, 227 U.S. 303 ( 33 S.C. 290, 57 LE 520), all relied on by the city in the present case, for the proposition that a municipal corporation may compel connection to a public drain or sewer in the exercise of its police power. However, the city cites no case supporting the proposition that a municipal corporation can dictate to its citizens the use of city supplied water. To the contrary see 94 CJS 29, 31, Waters, § 235, citing Harrisburg v. Pennsylvania R. Co., 33 Pa. Co. 641.
In our opinion the very nature of the things involved requires a distinction between compelling the use of a city system to dispose of waste products, which may by their nature constitute a health hazard, and compelling the use of city-supplied water, whether it be for human consumption or otherwise. While we recognize that a municipality can, in the exercise of its police power, make reasonable regulations to protect its citizens, including measures designed to preclude the use of water unfit for human consumption or other use, as obtained from a users' private source, or as supplied to a user by others, we see no reason to recognize a claim for inductive relief or declaratory judgment by the city absent some indication from the claim, as alleged, to show that some reasonable basis exists for protecting the health and welfare of its citizens in this manner.
Aside from its general welfare and police powers the city cites and relies upon Code Ann. §§ 69-314 and 69-911. There is nothing in the general authority conferred upon a city under the law set forth in Code Ann. § 69-314 in respect to the acquisition or construction of a water system, in addition to any powers a municipality may already have, whereby a city can compel the use of city water, or connection to a city water system. And, while the law as set forth in Code Ann. § 69-911 does purport to eliminate any prohibition against a municipality "from requiring the residents of the new annexed area to use city owned utilities" we are not here dealing with any issue of annexation. A city may under proper authority annex territory under conditions applicable only to the newly annexed territory. See Toney v. Mayor c. of Macon, 119 Ga. 83, 87 ( 46 S.E. 80).
In our opinion the compelling reasons supporting the position of the City of Valdosta in respect to sewer connections (Hutchinson v. Valdosta, supra) are absent in respect to the ordinances here involved. Accordingly, we hold that the City of Midway had no authority to enact § 17 of the Water Code requiring connection to the city water system and payment of a minimum charge, and no authority to enact the ordinance of March 13, 1972, prohibiting without qualification any repairs, alterations, or improvements on privately owned water pumps, wells, and water systems if city supplied water is available. It necessarily follows that the city has failed to state a claim for which relief can be granted, and that the trial judge did not err in dismissing the complaint.
Judgment affirmed. All the Justices concur.