Holton v. City of Camilla

• Decision Date: 14 June 1910
• Citation: 68 S.E. 472,134 Ga. 560
• Parties: HOLTON et al. v. CITY OF CAMILLA et al.
• Court: Georgia Supreme Court

68 S.E. 472

134 Ga. 560

HOLTON et al. v. CITY OF CAMILLA et al.

Supreme Court of Georgia

June 14, 1910

Syllabus by the Court.

The act of the General Assembly (Acts 1907, p. 505) chartering the city of Camilla provided in the twenty-eighth paragraph of section 21 that the city should have the power "to acquire by purchase or otherwise, own and equip ice plants and cold storage plants, in connection with waterworks system of said city or otherwise, and to do and perform all acts in connection with ownership and operation of and conduct of same, ordinarily incident to the operation and conduct of the same, and to issue bonds of said city, for the purpose of acquiring, owning, and equipping or operating said plants." An ordinance passed by the municipal authorities calling an election for the purpose of having determined the question whether or not bonds of the municipality should be issued provided: "Said bonds to be issued for the purpose of procuring the sum of $12,000 which sum is to be used as follows: The same to be used in acquiring, equipping, enlarging, and repairing the electric and waterworks plant and system, and acquiring additional real estate upon which to locate and operate said plant; and in acquiring, establishing, equipping, and operating an ice plant in connection with the waterworks and electric lights and other public utilities of the city of Camilla." Held, the operation of an ice plant by the municipal authorities of the city of Camilla, in connection with the electric light and waterworks plant, for the purpose of furnishing ice to the inhabitants of the city, is not in violation of paragraph 2, § 1, art. 1, or of paragraph 3, § 1, art. 1, or of paragraph 25, § 1, art. 1, of the Constitution of this state, or otherwise illegal; and the issuance of bonds by such municipality to raise money to establish and operate such ice plant was not illegal, where the assent of two-thirds of the qualified voters of the city had been obtained at an election held for the purpose of determining whether or not such bonds should be issued.

After a judgment was rendered confirming and validating the issuance of the bonds in proceedings had under the validation act of 1897 (Acts 1897, p. 82), citizens and taxpayers of the municipality could not for the first time attack the judgment on the ground that the money to be raised from a sale of the bonds was to be used for different purposes, and "neither said ordinance, nor the published notice of the election published in pursuance thereof, provided or gave the voters of said city any opportunity to vote for or against the bonds for each of said specified purposes separately, and hence said ordinance and said notice did not call and give notice of respectively as to each of said debts and purposes of an election 'for that purpose,' as required by the Constitution of the state of Georgia, embodied in Code, § 5893."

Upon a review of the case of Lippitt v. Albany, 131 Ga 629, 63 S.E. 33, the rulings therein made are reaffirmed.

Error from Superior Court, Mitchell County; Frank Park, Judge.

Action by S. J. Holton and others against the City of Camilla and others. Judgment for defendants, and plaintiffs bring error. Affirmed.

The plaintiffs in error, as citizens and taxpayers of the city of Camilla, filed their equitable petition against the city and its mayor and aldermen to enjoin the issuance and sale of certain bonds which had been authorized to be issued at an election held for that purpose. A judgment confirming and validating the issuance of the bonds had previously been rendered in proceedings had under the act of 1897 (Acts 1897 p. 82). In the equitable petition for an injunction the plaintiffs attacked the constitutionality of this act. They further contended that the judgment validating the bonds was illegal for various reasons, even if the act of 1897 was constitutional. To the order of the court refusing an interlocutory injunction, the plaintiffs excepted.

The ordinance calling the election for the purpose of having determined the question whether or not bonds should be issued provided: "Said bonds to be issued for the purpose of procuring the sum of $12,000 which sum is to be used as follows: The same to be used in acquiring, equipping enlarging, and repairing the electric and waterworks plant and system, and acquiring additional real estate upon which to locate and operate said plant, and in acquiring, establishing, equipping, and operating an ice plant in connection with the waterworks and electric lights and other public utilities of the city of Camilla." One of the grounds upon which the plaintiffs sought to enjoin the issuance and sale of the bonds was that the city could not engage in the enterprise of operating an ice plant. The defendant contended that the city had such power under the act of the General Assembly approved August 27, 1907 (Acts 1907, p. 505), under the provision of paragraph 28 of section 21, appearing on page 512; that in this paragraph and section of the city's charter the Legislature expressly gave it authority to engage in the business of operating an ice plant and to levy a tax for that purpose, and that the act giving this authority was constitutional and valid, especially as the city was only undertaking to operate an ice plant in connection with the plant operating its waterworks and electric light system, and merely as an incident thereto, and not as an independent business.

This ground on which an injunction was sought against the issuance and sale of the bonds is more elaborately set out in the petition, as follows: "Because one of the purposes for which said bonds are to be issued is 'to acquire, establish, equip, and enlarge an ice plant in connection with the' waterworks and electric light plant and system and other public utilities of the city of Camilla, and such purpose is illegal, for the reason that the said city has no right to embark in a purely private and commercial business of manufacturing or dealing in a common commodity of commerce, such as ice, and therefore the use of public funds raised by taxation for that purpose will be illegal, and it does not appear how much of the proceeds of said bonds shall be used for that illegal purpose, and how much for other purposes which might be legal, and therefore the whole issue will be illegal, as said purposes are inextricably commingled and confused; petitioners contending that subsection 28 of section 21 of the new charter of Camilla, embraced in Acts 1906, p. 505 et seq., said subsection purporting to authorize said city to purchase or otherwise own and equip an ice plant and cold storage plants, etc., is unconstitutional and void, because in contravention of paragraph 2, § 1, art. 1, of the Constitution of Georgia (Civ. Code 1895, § 5699), because by said paragraph the right of private property and the paramount duty of the government to impartially and completely protect the same are recognized and guaranteed, and the right to apply public funds, raised by taxation, to the carrying on of an ordinary business of manufacturing and dealing in an ordinary commodity of commerce, in connection with the right of eminent domain, need not be exercised--a business in no wise in the nature of a public utility--is inconsistent with the complete and impartial protection of private property, inasmuch as such right to raise by taxation and so apply public funds could be applied not only to the purposes of government, and to matters properly coming into the scope of public affairs, but also to every private business and every business of every nature, and thereby the government could take upon itself the conduct and control of all manufacturing, commercial, and other private businesses, and the form of government would be transformed from its present basis of individual ownership of property to the socialistic basis, wherein private property could not exist. And said subsection of said charter of said city is also unconstitutional as being in contravention of paragraph 3, § 1, art. 1, of the Constitution of Georgia (Civ. Code 1895, § 5700), inasmuch as its effect is to permit a citizen to be deprived of his property other than by due process of law, to wit, by taking such property under the guise of taxation and applying the same to the carrying on of a common private manufacturing and commercial enterprise, wholly unrelated to any governmental purpose. And said subsection of said charter is in contravention of paragraph 25, § 1, art. 1, of the Constitution of said state (Civ. Code 1895, § 5722), inasmuch as its effect is to deprive citizens of the United States resident in Georgia of the full enjoyment of the rights, privileges, and immunities due to such citizenship, and especially the right of private property existing under the republican form of government established by the Constitution of the United States, with the right of private property as one of its basic and fundamental features. And said subsection of said charter is in contravention of other provisions of the Constitution of Georgia and of the United States."

The defendants, in their answer, set up, among other allegations the following: "That it is not intended that said money shall be used simply to embark the city in a purely private and commercial business of manufacturing and dealing in ice, independent of said city's other businesses; but said city has already established and in operation a waterworks and electric light plant, operated by steam power, and that, by reason of the large power generated in said plants, and the large amount of water constantly distilled in the boilers of said steam plant, it will be profitable to said city to operate, not as an independent enterprise, but solely in connection...