Opinion
19441.
SUBMITTED SEPTEMBER 10, 1956.
DECIDED OCTOBER 9, 1956. REHEARING DENIED OCTOBER 29, 1956.
Equitable petition. Before Judge Davis. Walker Superior Court. June 4, 1956.
G. W. Langford, for plaintiff in error.
Painter Cain, contra.
1. The Georgia Declaratory Judgments Act (Ga. L. 1945. p. 137; Code, Ann. Supp., Ch. 110-11) makes no provision for a declaratory judgment which is merely advisory. The petition in the present case alleges that the City of Rossville "plans and intends to issue revenue-anticipation certificates . . . or general-obligation bonds." It appears that no action has been taken by the city to issue revenue-anticipation certificates or to incur any bonded debt, and the present action seeks a declaration by the court in advance of any proceeding or action by the city either to issue certificates or bonds. A declaratory judgment would therefore be purely advisory, and unauthorized by the act. Shippen v. Folsom, 200 Ga. 58, 59 (4) ( 35 S.E.2d 915); Sumner v. Davis, 211 Ga. 702 ( 88 S.E.2d 392).
2. No controversy, justiciable or otherwise, is alleged to exist between the petitioner and the persons named as defendants, and as representatives of a class comprising property owners in the city. In this State, where no justiciable controversy is alleged, an action for declaratory judgment will not lie. Lewis v. Lewis, 212 Ga. 168 ( 91 S.E.2d 336).
3. The equitable doctrine that members of a numerous class may be represented by a few of the class (Code § 37-1002) is applicable to both plaintiffs and defendants in equitable proceedings, wherein the petition states a cause of action for equitable relief. Macon Birmingham R. Co. v. Gibson, 85 Ga. 1, 2 (7) ( 11 S.E. 442, 21 Am. St. R. 135); Clark Milling Co. v. Simmons, 155 Ga. 505 ( 117 S.E. 437); Grand Chapter Order Eastern Star v. Wolfe, 172 Ga. 346, 351 ( 157 S.E. 301); O'Jay Spread Co. v. Hicks, 185 Ga. 507, 512 ( 195 S.E. 564); Webb Martin Inc. v. Anderson-McGriff Hardware Co., 188 Ga. 291 ( 3 S.E.2d 882).
4. The petition alleges that a declaratory judgment is necessary to avoid a multiplicity of actions. The Revenue Certificate Law (Ga. L. 1937, pp. 761, 771) authorizes the intervention of "any citizen of this State resident of such municipality" in any proceeding to validate revenue-anticipation certificates. Code (Ann. Supp.) § 87-818. The same right of intervention exists in proceedings to validate bonds. Code § 87-304. Generally there can be but one action to validate either certificates or bonds. In either case all interventions would be heard in the validation proceedings. The allegation that a declaratory judgment is necessary to avoid a multiplicity of actions is a conclusion of the pleader, and is contrary to the statutory provisions pertaining to validation of revenue-anticipation certificates or bonds. See Zeagler v. Willis, 212 Ga. 286 ( 92 S.E.2d 108).
5. Since all presumptions are in favor of the validity of an act of the General Assembly ( Harrison v. Hartford Steam-Boiler Inspection c. Co., 183 Ga. 1, 187 S.E. 648; Boyers v. State, 198 Ga. 838, 33 S.E.2d 251; Culbreth v. Southwest Ga. Regional Housing Authority, 199 Ga. 183, 33 S.E.2d 684), there can be no ruling to the contrary "until a clear, definite, and specific attack is made upon the constitutionality of the act as a whole, or upon the constitutionality of a specifically pointed out part or parts of it." Flynn v. State, 209 Ga. 519, 523 ( 74 S.E.2d 461); Brown v. State, 114 Ga. 60 (2) ( 39 S.E. 873); Morton v. Nelms, 118 Ga. 786 ( 45 S.E. 616); Almand v. Pate, 143 Ga. 711 (2) ( 85 S.E. 909); Loftin v. Southern Security Co., 162 Ga. 730, 731 (2) ( 134 S.E. 760); Inlow v. State, 168 Ga. 377 ( 147 S.E. 881); Huiet v. Dayan, 194 Ga. 250 (2) ( 21 S.E.2d 423).
(a) In the present case there was no attack upon the constitutionality of the amendment to the charter of the City of Rossville; and in the absence of such an attack, the trial court was not authorized to rule upon its constitutionality. The contracts described in the petition and the ordinances of the city were not attacked as invalid, and their validity or invalidity was not, therefore, properly before the court for determination.
6. The petition failed to state a cause of action for a declaratory judgment, and the court erred in overruling the general demurrers thereto.
Judgment reversed. All the Justices concur, except Wyatt, P. J., not participating.
SUBMITTED SEPTEMBER 10, 1956 — DECIDED OCTOBER 9, 1956 — REHEARING DENIED OCTOBER 29, 1956.
The City of Rossville filed an action against Clyde A. Liner, S.E. Leake, and H. D. Hixon, "as members and representatives of the following class of persons, to wit: water consumers and sewer users of the City of Rossville," including all owners and occupants of buildings of the City of Rossville. It was alleged: The above named class of persons includes all affected, or to be affected by the action. On February 11, 1952, the legislature of Georgia enacted an amendment to the charter of the City of Rossville (Ga. L. 1952, p. 2283). Pursuant to this act and other character authority, it has entered into a contract with the City of Chattanooga, Tennessee, copy of which is attached, and has entered into a contract with the City Water Company of Chattanooga, a copy of which is attached as an exhibit. Pursuant to the contracts and charter authority, it plans and intends to issue revenue-anticipation certificates or general obligation bonds for the purpose of financing construction of an interceptor sewer to connect with an interceptor sewer being built, and to be built, by the City of Chattanooga, with provisions as to payment of sewer charges or rents by adjustment of bills or charges through the City Water Company, all as more fully set out and referred to in the charter of the city, as amended. The City of Chattanooga has recently procured corresponding charter powers and the legislation has been approved by the Supreme Court of Tennessee. The City of Chattanooga and the City Water Company have made a thorough study of the problem and are awaiting only judicial determination, under the charter amendment and contracts, before commencement of active work. It is necessary that there be a judicial determination of the rights and powers of the City of Rossville with reference to the matters stated, and the validity of the contracts set out, for the reason that other interested parties will not proceed with the work until this is done, and it is expressly required by the contracts referred to that such determination be made. The exigencies of the situation require the ruling of the court on the following matters: (1) Is the charter amendment referred to in violation of any provision of the Constitution of the State of Georgia? (2) Does the charter of the City of Rossville confer power on it to construct and operate the interceptor sewer? (3) Does the legislation confer upon the city the right to enter into the contract with the City of Chattanooga? (4) Does the legislation confer upon the City of Rossville the right to enter into the contract with the City Water Company of Chattanooga? (5) Is the provision of the contract valid which authorizes the water company to cut off the water of customers whose sewer charges are unpaid? (6) Does the City of Rossville have the power to execute revenue-anticipation certificates or general obligation bonds for the purpose of financing the cost of construction of the interceptor sewer? (7) Does the City of Rossville have power to execute contracts, agreements, and pass ordinances and resolutions necessary to construct and maintain the sewer development? By virtue of the facts alleged, the ends of justice require that "judgment be rendered for the reason that a decision would now be definite and useful, in that questions of great public interest are presented involving the present property rights and interests of plaintiff and defendants," and a declaration by the court would finally determine the matters presented. This is an action in equity in that (a) each person constituting a part of defendant class has a present right to have the matters set forth in this suit determined, and it is necessary for the court to take equitable jurisdiction of the cause for the purpose of avoiding a multiplicity of suits; (b) it is impracticable to name and serve all persons who are members of the class referred to, and it is therefore necessary for equity to take jurisdiction of them as a class under its general powers and the Declaratory Judgments Act.
The prayers were: for process; that the parties defendant be expressly designated as the representatives of the class named; that a date be set for the cause to be heard, and that the defendants be served with a copy of the petition and process; that notice be published in a newspaper of general circulation once a week for four weeks; that the matters concerning which inquiry is made be declared by the court, and that such declaration be made the judgment of the court; and for other relief.
The general demurrers of the defendants were overruled, and the court entered a judgment finding: that the defendants named represent the class as a whole; that the charter amendment referred to was not in violation of the Constitution; that the cause is a proper one for declaratory judgment; that the City of Rossville has power to construct the interceptor sewer, and to enter into the contract with the City of Chattanooga and the City Water Company; that the provision of the contract is valid which authorizes the water company to cut off the water of customers whose sewer charges are unpaid; that the City of Rossville has charter power to issue revenue anticipation certificates or general obligation bonds, and to execute contracts and agreements, and pass all necessary ordinances and resolutions.
The defendants except to the judgment entered, and to the judgment of the court overruling their general demurrers.