Cartersville Improvement, Gas & Water Co. v. City of Cartersville

• Decision Date: 01 August 1892
• Citation: 16 S.E. 25,89 Ga. 683
• Parties: CARTERSVILLE IMPROVEMENT, GAS & WATER CO. v. MAYOR, ETC., OF CITY OF CARTERSVILLE.
• Court: Georgia Supreme Court

16 S.E. 25

89 Ga. 683

CARTERSVILLE IMPROVEMENT, GAS & WATER CO. v. MAYOR, ETC., OF CITY OF CARTERSVILLE.

Supreme Court of Georgia

August 1, 1892

Syllabus by the Court.

1. Without the preliminary sanction of a popular vote, as required by the constitution, a municipal corporation cannot contract for a supply of gas on the credit of the city for a longer period than one year; and a contract which, by its terms, is to run for 20 years, each year's supply to be paid for quarterly during the year, is operative from year to year only, so long as neither of the parties renounces or repudiates it. Either of them can terminate it at the end of any year, but so long as it stands, and is complied with by one party, the other party must comply also.

2. While a city cannot exempt a gas company from municipal taxation, it can contract to pay for gas a stipulated sum per lamp, and, in addition thereto, a sum for all the lamps supplied, equivalent to the amount of taxes imposed upon the company, provided this additional sum is a fair and just allowance to compensate for the actual value of the light service, and the stipulation is bona fide, and not in the nature of an evasion of the law prohibiting exemption from taxes.

3. The present action is not brought to recover money voluntarily paid as taxes, but for a balance due under the contract for lighting the city, this balance being measured in part by the amount of taxes assessed and collected by the municipal government from the gas company.

Error from city court of Cartersville; S. ATTAWAY, Judge.

Action by the Cartersville Improvement, Gas & Water Company against the mayor, etc., of Cartersville, to recover a balance alleged to be due on a contract. A demurrer to the declaration was sustained, and plaintiff brings error. Reversed.

While a city canont exempt a gas company from taxation, it can contract to pay for gas a stipulated sum per lamp, and, in addition thereto, a sum for all the lamps supplied equivalent to the amount of taxes imposed upon the company provided this additional sum is a just allowance to compensate for the value of the light, and the stipulation is bona fide, and not in the nature of an evasion of the law.

The following is the official report:

The declaration filed in the court below by plaintiff in error was demurred to and the demurrer sustained, to which ruling it excepted.

The declaration alleged: The mayor and aldermen of the city of Cartersville, a municipal corporation, is indebted to petitioner $268.83, with interest, for on August 6, 1888 defendant and the Orient Illuminating Company entered into a contract, copy of which is attached; afterwards, by mutual agreement, amended, as appeared from resolutions adopted by defendant, copies of which are attached. After the date of the contract it was assigned by the illuminating company to petitioner, with the knowledge and consent of defendant, and petitioner thereby became entitled to all the rights of the illuminating company under the contract. The gas plant provided for in the contract was duly completed according to the contract, and accepted by defendant, as shown by resolutions of defendant, copies of which are attached; and on May 1, 1889, the lights in the 75 public gas lamps on defendant's streets were turned on, and since that time and up to the present have been lit as prescribed by the contract. The defendant assessed petitioner's property for municipal taxation for 1890, levied a tax in favor of itself for that year, and in October, 1890, issued a tax fi. fa. against petitioner, and proceeded to collect it, contrary to the provisions of the contract. But defendant found itself compelled, by operation of law, to levy and collect the tax, because of the constitutional prohibition against the exemption by the city of any property from municipal taxation. Petitioner, in pursuance of an agreement made between it and defendant on May 16, 1891, copy of which is attached, paid defendant $268.83 on May 23, 1891. The lights furnished to defendant by petitioner in the 75 lamp-posts were worth not only the $25 per post, as specified in the contract, but also the additional sum of $10 per post; and the light so furnished was worth at least $275 (to wit, the amount of the taxes aforesaid) over and above the $25 per post; and defendant agreed in the contract to pay whatever amount, in addition to the $25 per post, defendant should collect from petitioner as taxes.

By the second count in the declaration it was alleged: Defendant is indebted to petitioner $268.83, for defendant having made the contract and adopted the resolution specified above, and petitioner having furnished public lights as specified, defendant having collected from petitioner the taxes mentioned, and failed and refused to pay the amount thereof to petitioner after petitioner's demand upon defendant therefor, petitioner becomes entitled to recover for public lighting, pursuant to the provisions of said contract, the same amount which it paid defendant for the taxes.

By the third count it was alleged: Defendant is indebted to petitioner $468.75, for petitioner, pursuant to the contract supplied for December, 1890, and January...