Bond v. City Of Royston

• Decision Date: 14 May 1908
• Citation: 61 S.E. 491,130 Ga. 646
• Court: Georgia Supreme Court
• Parties: BOND. v. CITY OF ROYSTON et al. ELBERTON GROCERY CO. v. SAME.

130 Ga. 646

61 S.E. 491

BOND.

v.CITY OF ROYSTON et al.

ELBERTON GROCERY CO.

v.SAME.

Supreme Court of Georgia.

May 14, 1908.

Municipal Corporations—Torts — Attempt to Collect Invalid License Fee—Liability.

The mayor and counsel of the city of Royston adopted an ordinance imposing a tax of $50 upon every nonresident dealer selling or offering to sell commercial fertilizers or delivering them to consumers within the limits of the municipality, and which provided, further, that application should be made to the mayor for a license authorizing the same. Held, that the adoption of this ordinance was an attempted exercise of the legislative powers conferred upon the municipality, and, even though the ordinance was unconstitutional and void, the attempted enforcement of it by the levy of a tax fi. fa. for the amount of the license fee would not render the municipality itself liable in damages to the party upon whose property the fi. fa. had been levied, or to one whose business was affected by such attempted enforcement.

(Syllabus by the Court.)

Error from Superior Court, Franklin County; C. H. Brand, Judge.

Actions by J. E. Bond and by the Elberton Grocery Company against the city of Roys-ton and others. From judgments striking the city of Royston as defendant, plaintiffs bring error. Affirmed.

These two cases are controlled by the decision of a single question raised in both records. For convenience of reference, the case of Bond v. City of Royston et al. will be referred to as the first case, and that of the Elberton Grocery Company against the same defendants as the second case. The important question in each case is whether the municipality was liable for damages alleged to have resulted from the attempted enforcement of an ordinance, adopted by the mayor and council, imposing a tax of $50 upon all nonresident dealers in commercial fertilizers, and making penal the sale and delivery of such fertilizers to consumers in the city unless a license has first been obtained from the mayor and council. It was alleged in the petition in the first case that "said ordinance was passed to prohibit petitioner from getting said guano from said Elberton Grocery Company, as well as to prevent the Elberton Grocery Company from delivering the same in Royston; they believing the Elberton Grocery Company would refuse to pay the tax, and thereby petitioner would be forced to buy his guano from a dealer in Royston—the said ordinance excepting the local dealers from payment of said tax. Said guano was shipped on the 20th of February, and said ordinance was passed at a called meeting of the mayor and council late in the afternoon of February 19, 1906. While the petitioner and the Elberton Grocery Com pany were unnamed in said ordinance, it was they the said defendants were hitting at and intended should be so hit by them. * * * In the performance of said acts of which complaint is made, the said municipality * * * acted on its private, and not on its governmental, side, seeking provision for the necessities and conveniences of its community, its own good, as well as to prevent competition of outsiders with its own local dealers in guano. In so exercising its powers for private, local, or merely corporate purposes or benefits, the said city of Royston, as such, places itself under the rules which govern in cases of torts of individuals or private corporations, and in doing said acts the said municipality, the said city of Royston, is liable to petitioner the same as if it were a private corporation or an individual. Said municipality intended, in performing said acts, the furtherance of its private or pecuniary interests, and these acts were but the exercising of the municipality's private functions-for its own good." Similar allegations were made in the second case. In each ease the city, upon general demurrer by it, was stricken as a party defendant; the court holding that it was not liable in the case stated,

Z. B. Rogers, for plaintiffs in error.

T. G. Dorough and A. G. & Julian McCurry, for defendant in error.

BE...