Saunders v. Town of Arlington

• Decision Date: 21 January 1918
• Docket Number: 438.
• Citation: 94 S.E. 1022,147 Ga. 581
• Parties: SAUNDERS ET AL. v. MAYOR, ETC., OF TOWN OF ARLINGTON ET AL.
• Court: Georgia Supreme Court

94 S.E. 1022

147 Ga. 581

SAUNDERS ET AL. v. MAYOR, ETC., OF TOWN OF ARLINGTON ET AL.

No. 438.

Supreme Court of Georgia

January 21, 1918

Syllabus by the Court.

Where a municipality was incorporated under the name and style of the "mayor and council of the town of Arlington," with the power to sue and be sued in that name, and to a suit against the "town of Arlington" it appeared and pleaded to the merits in its true name without raising the objection of misnomer, and subsequently the petition was so amended as to designate the defendant as the "mayor and council of the town of Arlington," the error as to the name was waived by it. Commissioners of McIntosh County v. Aiken, 123 Ga. 647, 51 S.E. 585. See Rhodes v Louisville, 121 Ga. 551, 49 S.E. 681(1).

Such waiver was binding upon citizens and taxpayers who intervened and contested the right to validate bonds of the municipality (which was the object of the suit); and it was proper to overrule a demurrer by the interveners on the ground that the suit was not brought against the municipality in its corporate name, and was a mere nullity.

The charter of the town of Arlington (Acts 1890-91, p. 867; Acts 1905, p. 607; Acts 1913, p. 492) confers on the authorities of the municipality the power to establish and maintain an "ice plant and cold storage" within such municipality for the benefit of the inhabitants thereof whenever they have complied with the preliminary steps for such purpose as provided by the Constitution and statute laws of the state.

The evidence was sufficient to support the judgment validating the bonds, and none of the assignments of error are sufficient to require a reversal.

Error from Superior Court, Calhoun County; W. M. Harrell, Judge.

Proceeding by R. C. Bell, as Solicitor General, against the Mayor, etc of Arlington, to validate certain town bonds, in which W. E Saunders and others intervened. To an order validating the bonds, the interveners bring error. Affirmed.

L. M. Rambo, of Blakely, for plaintiffs in error.

B. W. Fortson, of Arlington, R. C. Bell, Sol. Gen., of Cairo, and Pope & Bennet, of Albany, for defendant in error.

HILL J.

1. The first headnote requires no elaboration.

2. R. C. Bell, as solicitor general of the Albany circuit, filed his petition under the Civil Code, § 445 et seq., in the name of the state of Georgia "against the town of Arlington, a municipal corporation existing under the laws of Georgia," to validate and confirm certain bonds for the purpose of installing an "ice plant and cold-storage system in and for the town of Arlington," etc. The mayor and council of the town of Arlington filed an answer admitting all of the material allegations of the petition. Saunders and others filed an intervention in which (in addition to their demurrer as indicated in the first headnote) they raised certain questions as to the legality of the bond issue. The court passed an order validating the bonds, and the interveners excepted.

The controlling question in the case is whether the mayor and council of the town of Arlington, under the general welfare clause of its charter, can install and operate an "ice plant and cold-storage system," and whether bonds can be issued and validated for that purpose. By the act of the Legislature approved October 9, 1891, granting a new charter for the town of Arlington (Acts 1890-91, pp. 867, 870, § 10), it is provided that:

"Said corporation shall have and enjoy all the rights, privileges and powers incident to such corporations, not repugnant to the Constitution of the United States, the Constitution of this state and the laws made in pursuance thereof; and said corporation, by their mayor and aldermen, shall have full power and authority to enact and enforce all ordinances, by-laws, rules and regulations necessary for the good government of said town and securing the health of the inhabitants and protection of property therein."

Express provision is made in the charter for the erection, installation, and maintenance of a system of waterworks and an electric light plant within said town. Acts 1905, p. 608, § 2 et seq. The charter also provides, under the general welfare clause, that the town may issue bonds, in addition to the bonds already provided for, etc., in a certain amount, whenever the mayor and board of aldermen "shall deem it proper and expedient so to do for the purpose of making any public improvement or improvements for the benefit of said town." Does this provision of the charter authorize the issuance of bonds for, and the erection and maintenance of, an ice plant and cold-storage system by the town? It is suggested that the town of Arlington had express authority given to it by the Legislature to establish a waterworks and electric light system, etc., and that, together with the general authority conferred of making "any other improvements within said town" (Acts 1913, p. 492, § 1), included the power to establish the ice plant and cold-storage system. Construing the two paragraphs of the charter together, we are of the opinion that the legislative intent was to confer the power to establish and maintain an ice plant and cold-storage system. In Frederick v. Augusta, 5 Ga. 561, 567, it was held:

(1) "A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly or as incidental to its very existence. These are such as are supposed best calculated to effect the object for which it was created."

(2) "Where, by the terms of the charter, a municipal corporation was vested with full power and authority to make such assessments on the inhabitants of the city, or those who hold taxable property therein, for the safety, benefit, convenience and advantage of the said city, as shall appear to them expedient held, that an assessment of a tax of one-half of 1 per cent. on the value of the real estate within the corporate limits of the city by the city council, for the purpose of constructing a canal for the better securing an abundant supply of water for the city, was not a violation of the charter, nor contrary to the laws of the land."

In Mayor, etc., of Rome v. Cabot, 28 Ga. 50, this court decided:

"Under a power conferred by the Legislature upon a municipal corporation, to make all contracts, in their corporate capacity, which they may deem necessary for the welfare of the city, and which do not conflict with the Constitution and laws of the federal or state governments, they have the right to make a contract for the construction of waterworks."

And see, to the same effect, Linton v. Athens, 53 Ga. 588, 595; Hall v. Calhoun, 140 Ga. 611, 79 S.E. 533.

In the Linton Case, it is said:

"That in this state at least, inasmuch as the power to levy and collect taxes is vested in the General Assembly, that it would, in the language of Chief Justice Marshall, be unfit for the judicial department of the state government to inquire whether the lawmaking power of the state has acted wisely or unwisely, justly or unjustly, in taxing the property of the complainant, as set forth in the record."

In the Frederick Case, supra, it was said:

"When the lawmaking power acts within the scope of its delegated authority, the courts cannot interfere. It is the duty of the judicial tribunals of the country to execute and enforce all constitutional laws, and not to make them. The remedy against the effect of oppressive legislation, delegated to municipal corporations, is in the hands of the people, or their representatives."

It was held in Mayor, etc., of Cartersville v. Baker, 73 Ga. 686:

"Unless there is something in the charter of a municipal corporation which forbids the building of schoolhouses, the city may do so. This is within the scope of the general powers of a municipal corporation. and is not prohibited by the Constitution of 1877."

It was held in Heilbron v. Cuthbert, 96 Ga. 312, 314, 23 S.E. 206, that under a general welfare clause which empowered the mayor and council to "contract and be contracted with; sue and be sued; * * * and * * * do all things for the benefit of the city, and all things not in violation of the Constitution and laws of this state," the mayor and council could, upon complying with the requisite constitutional and legal provisions, contract a debt for the construction and maintenance of waterworks and an electric light plant, and could issue bonds for this purpose. In the case of City Council v. Dawson Waterworks Co., 106 Ga. 696, 709, 32 S.E. 907, Judge Cobb, in delivering the opinion of the court, said:

"The authority of the General Assembly to confer upon municipal corporations the power to tax is restricted, but it exists to the extent that a municipal corporation may be authorized to levy taxes for any purpose which is purely public and municipal in its nature."

And this view is in harmony with the weight of authority. See Sun Pub. Ass'n v. New York, 152 N.Y. 257, 46 N.E. 499, 37 L.R.A. 788; State v. Toledo, 48 Ohio St. 112, 26 N.E. 1061, 11 L.R.A. 729....