Opinion
14784, 14785.
APRIL 6, 1944.
Petition for injunction. Before Judge Paul S. Etheridge. Fulton superior court. November 24, 1944.
Fine Hendrix and Noah J. Stone, for plaintiff.
J. C. Savage, E. L. Sterne, J. C. Murphy, and Bond Almand, for defendant.
1. Where a city is engaged in installing, servicing, and maintaining a burglar-alarm system through the wires of a telephone company, so that when the electric circuit has been broken a signal will flash at the police station and be relayed by radio to police officers, such operation is in virtue of the police powers of the municipality and is a governmental function. Where the work is essentially for public welfare and for the general good of all the inhabitants of the city, its operation as a governmental function is not changed by the fact that the city makes a charge for the cost of installation and a monthly service charge for its maintenance and operation, if it is not undertaken for gain or for private objects.
2. The constitutional questions raised are not properly presented for decision.
Nos. 14784, 14785. APRIL 6, 1944.
Bob Lee, as a citizen and taxpayer, filed a petition in Fulton superior court against the City of Atlanta, which contained substantially the following allegations: Petitioner is engaged in installing, servicing, and maintaining burglar-alarm systems, and the city, through its agents and employees, is engaged in a similar business. After a place of business is wired by the city, it is connected with a telephone so that when the electric circuit has been broken a signal will flash at the police station and be relayed by radio to police officers. The city receives $1.50 per month from each subscriber, and the latter also pays the telephone bill which is based upon zones, varying in price according to the distance from the police station. The telephone bills are mailed directly to the subscribers, but the city has guaranteed the telephone company $625 a month for its service. The city is not conducting this business as a governmental function, but renders the service only to persons who subscribe therefor. On numerous occasions petitioner has received requests to install his burglar-alarm system, after which the city would make an estimate for less than the actual cost of the material and labor and insist upon the customer entering into a contract with it. In this manner the city is engaged in a private enterprise for pecuniary gain without charter authority in competition with petitioner and other citizens, and such acts are ultra vires and contrary to law. On a stated occasion the police threatened to make a case against one of petitioner's customers for making unnecessary noise after an alarm had sounded, and in this way the city discourages customers from purchasing petitioner's service, and tends to create a monopoly. The city has designated two of its officers to devote their time to the operation of its burglar-alarm system. The city has no charter authority to enter into private business, or to render service to one class of persons which it does not render to all of its citizens. By ordinance it has placed a license of $100 a year on the business of operating a burglar-alarm system, and it is operating a competitive system free from license, which gives it an unfair advantage over others engaged in similar business, and is in violation of article 7, section 2, paragraph 1, of the constitution of Georgia (Code, § 2-5001), which provides that "all taxation shall be uniform upon the same class of subjects." The acts of the city are also in violation of article 1, section 1, paragraph 2, of the State constitution (Code, § 2-102), which provides that "protection to person and property is the paramount duty of government and shall be impartial and complete." The prayers were to enjoin the city from operating a burglar-alarm system; from conducting such private business in competition with petitioner; from collecting licenses from petitioner; for process; and for general relief.
The city demurred on general and special grounds. The demurrer was overruled, and the city filed exceptions pendente lite. On the trial, after hearing evidence, the judge directed a verdict in favor of the city. The plaintiff excepted to an order overruling his motion for new trial as amended. The city filed a cross-bill of exceptions, assigning error on its exceptions pendente lite.
1. The allegations of a pleading are to be construed most strongly against the pleader, when attacked by demurrer. The demurrer admits only the facts, and not the legal conclusions drawn therefrom by the pleader. Jones v. Ezell, 134 Ga. 553 (5) ( 68 S.E. 303); Harper v. Lindsey, 162 Ga. 44 ( 132 S.E. 639); Woolworth Co. v. Harrison, 172 Ga. 179 ( 156 S.E. 904); Brown v. Massachusetts Mills, 7 Ga. App. 642 ( 67 S.E. 832); Yatesville Banking Co. v. Fourth National Bank of Atlanta, 17 Ga. App. 420 (3) ( 87 S.E. 606); Anthony v. Dudley Sash, Door Lumber Co., 21 Ga. App. 412 ( 94 S.E. 634); Terre Haute National Bank v. Horne-Andrews Commission Co., 24 Ga. App. 320 ( 101 S.E. 6). The instant petition when stripped of its legal conclusions, viz., that the activity is not a governmental function, and that the city is engaging in a private enterprise for pecuniary gain which is ultra vires and contrary to law, sets forth no allegations of fact to authorize the grant of any relief for which the petitioner prays.
The operation of an ice plant by municipal authorities in connection with the electric-light and water-works plant was held to be a governmental function in Holton v. Camilla, 134 Ga. 560 ( 68 S.E. 472, 31 L.R.A. (N.S.) 116, 20 Ann. Cas. 199). The same ruling was applied to the operation of a public park, even though a purely incidental profit might have resulted from such operation, in Cornelisen v. Atlanta, 146 Ga. 416 ( 91 S.E. 415). The Cornelisen case was followed in Petty v. Atlanta, 40 Ga. App. 63 ( 148 S.E. 747), where the operation of a swimming pool was involved. In the recent case of Gardner v. Brunswick, 197 Ga. 167 ( 28 S.E.2d 135), it was held that a city might provide meters to measure the time of parking automobiles on city streets, in the absence of any contention that the city would derive revenue therefrom in excess of what was necessary to defray expenses connected with the operation of the meters.
We know of no activity in which a municipality might engage that is more essentially a governmental function than the apprehension of criminals and the suppression of crime. Where a city is engaged in installing, servicing, and maintaining a burglar-alarm system through the wires of a telephone company, so that when the electric current is broken a signal will flash at the police station and be relayed by radio to police officers, such operation is in virtue of the police powers of the municipality and is a governmental function. And where the work is essentially for public welfare and for the general good of all the inhabitants of the city, its operation as a governmental function is not changed by the fact that the city makes a charge for the cost of installation, and a monthly service charge for its maintenance and operation, where it is not undertaken for gain or for private objects. It follows that the petition did not set forth a cause of action, and the trial court erred in overruling the general demurrer interposed by the city.
2. The petition contained the following allegations: "The City of Atlanta has by ordinance placed a license tax on the business of operating a burglar-alarm system in the sum of $100 per year, and it is operating a competitive system free from license and this gives the city an unfair advantage over others in similar business in said city, and is in violation of article 7, section 2, and paragraph 1, of the constitution of Georgia, which provides that `All taxation shall be uniform upon the same class of subjects.' The acts of the defendant as alleged in this petition is in violation of article 1, section 1, and paragraph 2 of the constitution of Georgia, which provides that `protection to person and property is the paramount duty of government and shall be impartial and complete,' in that the discourse as imposed upon him is not impartial between him and the city, and there is no protection granted him."
The above allegations of the petition, to the effect that the city has by ordinance placed a license of $100 per year on the business of operating a burglar-alarm system, and that the acts of the city are in violation of designated constitutional provisions, are insufficient to properly present a constitutional question for decision, in that it is not alleged wherein the ordinance is unconstitutional. In order to raise a question as to the constitutionality of a law, the statute which the party challenges, and the provisions of the constitution alleged to have been violated, must both be clearly specified, and it must also be shown wherein the statute violates such constitutional provision. Abel v. State, 190 Ga. 651, 653 ( 10 S.E.2d 198).
The error of the trial court in overruling the general demurrer rendered all further proceedings nugatory.
Judgment reversed on the cross-bill of exceptions. Main bill dismissed. All the Justices concur.