City of Midway v. Midway Nursing & Convalescent Center, Inc.
| Decision Date | 02 May 1972 |
| Docket Number | No. 27546,27546 |
| Citation | 230 Ga. 77,195 S.E.2d 452 |
| Parties | CITY OF MIDWAY v. MIDWAY NURSING & CONVALESCENT CENTER, INC., et al. . Jan, 22, 1973. Syllabus by the Court The City of Midway has no authority to enact and enforce ordinances which are designed to compel everyone within the city to use city-supplied water, if and when available, and to prevent absolutely any repairs, alterations, or improvements on a privately owned well, pump, or water system. The City of Midway initiated an action in March, 1972, against Midway Nursing and Convalescent Center, Incorporated, The Midway First Presbyterian Church, Incorporated, Midway First Development Corporation, Charles A. Maxwell, Sr., and the U.I.C. Corporation alleging that the city was in the process of providing a municipal water system to serve the entire city, that it had drilled a well in close proximity to the property of the development corporation, that the development corporation was construing a nursing home on this property, that water would be supplied from a well on the church property, and that Maxwell was the motivating force behind the actions of the other defendants. The city further alleged that if the nursing home accepted water from the city system the city could obtain a grant and loan from federal authority and could provide a reliable and inexpensive supply of water to all citizens, and that the system would include a high level tank, fire hydrants, and fire protection for the nursing home and the entire city. The city also alleged that it was acting under its police powers and as a matter of public policy to protect the public health, safety, morals, and welfare of the public, and that the defendants' actions and proposed actions were designed to circumvent this policy. On this basis the city sought injunctive relief. The defendants moved to dismiss the complaint for failure to state a claim, whereupon the city amended its complaints, alleging that it was duly authorized to construct and maintain a water system, and that pursuant to this authority it ha |
| Court | Georgia Supreme Court |
Syllabus by the Court
The City of Midway has no authority to enact and enforce ordinances which are designed to compel everyone within the city to use city-supplied water, if and when available, and to prevent absolutely any repairs, alterations, or improvements on a privately owned well, pump, or water system.
The City of Midway initiated an action in March, 1972, against Midway Nursing and Convalescent Center, Incorporated, The Midway First Presbyterian Church, Incorporated, Midway First Development Corporation, Charles A. Maxwell, Sr., and the U.I.C. Corporation alleging that the city was in the process of providing a municipal water system to serve the entire city, that it had drilled a well in close proximity to the property of the development corporation, that the development corporation was construing a nursing home on this property, that water would be supplied from a well on the church property, and that Maxwell was the motivating force behind the actions of the other defendants. The city further alleged that if the nursing home accepted water from the city system the city could obtain a grant and loan from federal authority and could provide a reliable and inexpensive supply of water to all citizens, and that the system would include a high level tank, fire hydrants, and fire protection for the nursing home and the entire city. The city also alleged that it was acting under its police powers and as a matter of public policy to protect the public health, safety, morals, and welfare of the public, and that the defendants' actions and proposed actions were designed to circumvent this policy. On this basis the city sought injunctive relief.
The defendants moved to dismiss the complaint for failure to state a claim, whereupon the city amended its complaints, alleging that it was duly authorized to construct and maintain a water system, and that pursuant to this authority it had enacted a series of ordinances requiring the use of city-supplied water where available, and that although water is available, the defendants have refused to make connection, thereby causing immeasurable damage to the city. The amended prayers for relief are to enjoin the church, the development corporation, Maxwell and U.I.C. Corporation from furnishing water to the nursing home, and to enjoin the nursing home from receiving water from the other defendants in competition with the city.
The city attached as an exhibit ordinances comprising its Water Code, Section 17 of which reads as follows: 'Every residence, house or business establishment in the city is hereby required to connect and tap-in to the city water system when a water line is available on the street which fronts or is contiguous to the property on which the structure is erected, and to pay minimum charge for this type consumption or for the actual amount of water consumed, which ever is greater.'
In defense the defendants asserted that § 17 of the Water Code, supra, violates due process and equal protection under the United States and Georgia Constitutions. The defendants also moved to dismiss the complaint as amended for failure to set forth a claim for relief.
Thereafter the plaintiff added as Count 2 a complaint for declaratory relief, including therewith as exhibits additional ordinances which provided that no deep well for water could be drilled in the city without permission and that henceforth no repairs, alterations, or improvements shall be allowed in the city on privately owned water pumps, wells, and systems where municipal water is available to the premises on which such wells or systems are located.
Following an evidentiary hearing the trial judge on May 2, 1972, dissolved a temporary restraining order and denied a motion of the plaintiff for interlocutory injunction. The following day the defendants moved to dismiss the complaint, as amended by Count 2.
The city appeals an order entered on August 16, 1972, dismissing the entire complaint for failure to state a claim for relief.
Richard D. Phillips, Ludowici, J. Sidney Flowers, Hinesville, for appellant.
Brannen & Clark, Griffin B. Bell, Jr., Savannah, for appellees.
'It is elementary that the...
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