City Council of Dawson v. Dawson Waterworks Co.
| Decision Date | 14 March 1899 |
| Parties | CITY COUNCIL OF DAWSON v. DAWSON WATERWORKS CO. |
| Court | Georgia Supreme Court |
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 water on the credit of the city for a longer period than 1 year; and a contract which by its terms is to run for 20 years, each year's supply to be paid for semiannually from year to year, is operative from year to year, so long as neither party renounces or repudiates it. (a) Cartersville Improvement, Gas & Water Co. v. City of Cartersville, 16 S.E. 25, 89 Ga. 683; Cartersville Waterworks Co. v. Same, 16 S.E. 70, 89 Ga. 689; Lewis v. Lofley, 19 S.E. 57, 92 Ga. 804; Board Com'rs Habersham Co. v. Porter Mfg. Co., 30 S.E. 547, 103 Ga. 613,--followed and approved. Spann v. Board, 64 Ga. 498; Cabaniss v. Hill, 74 Ga 845,--overruled in part.
2. Is it not absolutely essential to the validity of an election held under that provision of the constitution of this state (article 7) which declares that "no *** municipality *** shall incur any new debt, except for a temporary loan or loans to supply casual deficiencies of revenue, not to exceed one-fifth of one per centum of the assessed value of the taxable property therein, without the assent of two-thirds of the qualified voters thereof, at an election for that purpose, to be held as may be prescribed by law," that there should be an act of the general assembly prescribing the manner of such election?
3. The manner of holding such election, where the debt to be incurred is a bonded debt, is prescribed in section 377 et seq. of the Political Code.
4. There is no general law of this state prescribing the manner of holding elections where the debt proposed to be incurred is not a bonded indebtedness, nor is there any local law expressly authorizing the city council of Dawson to prescribe the method of holding such election.
5. Even if no legislation is necessary to authorize a municipal corporation to hold an election to determine whether a debt other than a bonded indebtedness shall be incurred, and election held pursuant to an ordinance and notice which does not state the amount of the debt to be incurred will not be sufficient to authorize the execution of a contract incurring an indebtedness.
6. Where one enters with a municipal corporation into a contract which is void because opposed to the constitution and laws of this state, and contrary to its settled public policy complete performance of such contract on the part of such person will not prevent the municipal corporation from pleading its want of power or the illegality of the contract.
7. There is nothing in the decision of this case when it was here before in conflict with the rulings now made.
8. The city council of Dawson has a right to make a contract to supply the city with water for one year, provided there is in the treasury of the city a sum sufficient to pay therefor which may be lawfully appropriated for that purpose, or if such sum can be secured by lawful taxation levied during the year in which the contract is made. While a contract for a longer space of time is illegal, yet where the other parties to such a contract have complied with their part by erecting a plant at great expense in order to furnish the city with water, the city is liable for the amount stipulated in the contract for each year that it received the benefits thereof.
9. The evidence being conflicting as to whether, during the year for which compensation is claimed by the water company for water furnished to the city, the latter received the benefit to be derived under the contract in such a way as to make it liable to pay the annual rental stipulated therein, the case should have been submitted to a jury under proper instructions, and it was error to direct a verdict for the plaintiff.
Error from superior court, Terrell county; H. C. Sheffield, Judge.
Action by the Dawson Waterworks Company against the city council of Dawson. Judgment for plaintiff. Defendant brings error. Reversed.
M. C Edwards, J. A. Laing, and Guerry & Hall, for plaintiff in error.
Hall & Wimberly, and J. G. Parks, for defendant in error.
The Dawson Waterworks Company brought suit against the city council of Dawson, claiming that the defendant was indebted to it in the sum of $2,000, besides interest, for water furnished during the year 1895 for the purpose of protecting the inhabitants of the city against fire. At the trial there was introduced in evidence an extract from the minutes of the city council of the proceedings at a meeting held on May 10, 1886, which was as follows: "A motion was made and carried that the question of incurring expense of waterworks be submitted to the citizens of the city, and that notice of an election be run in the Dawson Journal for the time prescribed by law, and that an election be held on said question on the 11th day of June next, 1886." There was also in evidence four issues of the Dawson Journal, the official gazette of the city and county, for the four weeks preceding June 11, 1886, to wit, the issues of May 13th, 20th, and 27th, and June 3d, respectively, showing the election notice, which was as follows: It was admitted that at the election held pursuant to this notice more than two-thirds of the qualified voters of the city voted in favor of incurring the expense of waterworks. It was also admitted that the value of the taxable property of the city of Dawson in 1886 and each succeeding year was over $1,000,000.
The contract relied upon by the plaintiff, which was in the form of an ordinance, appearing in the Book of Ordinances of the City of Dawson, was introduced in evidence. The material parts of this contract are as follows:
Section 231 grants to R. L. Bennett, of Philadelphia, Pa., his associates, their successors and assigns, who are to organize a company to be styled the "Dawson Waterworks Company," the exclusive right and privilege, for a period of 99 years, to construct, maintain, and operate a system of waterworks for supplying said city and its inhabitants, and for protection against fire, and for domestic and sanitary and other purposes.
Section 232 grants authority to lay water pipes and mains in the streets and avenues of said city, as the same are now open or may be extended, and to dig ditches and trenches in the streets.
Section 233 grants the right to erect buildings and tanks, lay pipes, erect other structures, and make improvements on lands owned and controlled by the city, except public squares.
Section 234: The said company, its successors and assigns, is to build and have in operation, in 18 months, a complete and thorough system of waterworks, laying 4.8 miles of pipe, sizes 8, 6, and 4 inches in diameter, with reservoir of not less than 40,000 gallons capacity, and of sufficient height to produce a pressure on the mains such that, from any hydrant located in the principal streets, a stream of water will be projected 50 feet vertically in still air, through 100 feet of fire hose with a 1 inch nozzle attached. Said Company, or assigns, from completion of system of waterworks until its charter shall cease, shall be required to furnish a sufficient supply of water for the purposes before and hereafter mentioned, unless prevented by unavoidable and providential causes. In such an event, it shall be allowed a reasonable time to make repairs, and if, after such reasonable time shall have been allowed, it should still fail to furnish said supply of water, its franchise from that fact shall be forfeited.
Section 235: The company is to extend mains and pipes, and enlarge plant of system generally, to meet increasing demands from growth of city.
Section 236: The city of Dawson, in consideration of said company guarantying to it, for the period of 20 years, and as long thereafter as the said company or its successors and assigns shall continue to operate the waterworks, a free and unrestricted use of its water in case of fire, and for protection against conflagration, and agreeing to establish at convenient places along the line of its mains fire plugs of approved pattern, not to exceed 50 in all, until the corporate limits of said city are extended, and the population of said city increases so that there are 500 persons living in said extension, after which they shall be increased proportionately, if required, and, as an additional fire protection, also to furnish water to fill the present public cisterns, if needed, the said water to be used exclusively for fire purposes only, and the said water to remain the property of the said company, except in case of fire, obligates itself to pay to the said company, or to such trust company as the Dawson Waterworks Company may elect or decide upon as the trustee for its bonds, the sum of $2,000 annually for 20 years, in semiannual payments of $1,000 each, on the 1st days of January and July of each year, the first payment to be made on such of said days as occur after the completion of said works as provided in section 234 of this ordinance; and in case said city shall not have sufficient funds at any of such times to make said payments, or for any cause does not pay said money at times fixed as aforesaid, then in that case warrants shall be issued on the city treasurer in favor of the company for the amount due.
Section 237: The council shall and they are hereby required to, make provision each year for the payment of $2,000, as provided in the foregoing se...
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