City of Thomson v. Davis

• Decision Date: 31 May 1955
• Docket Number: No. 35673,No. 2,35673,2
• Citation: 92 Ga.App. 216,88 S.E.2d 300
• Parties: CITY OF THOMSON v. W. L. DAVIS
• Court: Georgia Court of Appeals

Page 300

88 S.E.2d 300

92 Ga.App. 216

CITY OF THOMSON v. W. L. DAVIS.

No. 35673.

Court of Appeals of Georgia, Division No. 2.

May 31, 1955.

Rehearing Denied June 15, 1955.

Syllabus by the Court.

1. The acts of granting and revoking licenses to do business by the governing authorities of municipalities under their charter power are an exercise of the police power of such municipalities and constitute a governmental function.

2. Licenses thus granted do not constitute contracts between a municipality and the licensee, and may in proper cases be abrogated.

3. A cause of action arises in favor of the owner of property within a municipality, where such municipality, even though in the exercise of a purely governmental function under its police power, takes or damages the property without first making adequate compensation, or where in such manner the owner is deprived of his property without due process of law, or where the acts of the municipality constitute such nuisance as to thus damage or appropriate property. Such cause of action, based on constitutional provisions, has no relation to actions in tort for which the municipality is in no case liable when acting in a governmental capacity in furtherance of its police powers. The petition here, however, fails to state a cause of action based on a violation of the constitutional provisions in question.

William L. Davis filed an action for damages against the City of Thomson. As finally amended the petition was in two counts, in the first of which it was alleged substantially that the Mayor and Council of the City of Thomson granted a permit to the plaintiff to erect, equip, and operate an abattoir within the limits of the city; that pursuant thereto the plaintiff erected and equipped the abattoir at an expense of s8,693.17; that thereafter the defendant rescinded its action in granting said permit and withdrew permission for the plaintiff to operate an abattoir, thereby destroying the plaintiff's investment. He contends that this action on the part of the defendant afforded him a right of action in that it constituted a violation of his constitutional rights by damaging his private property for public purposes without just and adequate compensation within the meaning of art. 1, § 3, par. 1 of the Constitution of the State of Georgia, Code, § 2-301. The petition prays for judgment against the defendant for the cost of the improvements which the defendant by its permit authorized to be constructed and equipped, but refused to continue its authorization to operate. The other count contains the same allegations and insists on the same right of action as constituting a violation of the same constitutional provision. In addition, it in this count also alleges that 'thereafter, the Mayor and Council of the City of Thomson declared plaintiff's permit void, and so notified plaintiff, without giving him a hearing or an opportunity to contest the issue prior thereto, all of which was ex parte.' Recovery in this count is also predicated on the State and Federal constitutional provisions forbidding the deprivation of the property of any person without due process of law (art. 1, § 1, paragraph 3, Constitution of the State of Georgia; Fourteenth Amendment of the Constitution of the United States). Demurrers to the petition were overruled, and this judgment is assigned as error.

Peebles & Burnside, Augusta, for plaintiff in error.

Randall Evans, Jr., Thomson, for defendant in error.

TOWNSEND, Judge.

1. Certain (special) demurrers which were held by the trial court not to apply to count 1 of the petition, but which were applied to the remaining count, are immaterial to this decision, the sole question being whether or not either or both of the counts set forth a cause of action for a money recovery. For this reason also it is immaterial that some of the (special) demurrers took inconsistent positions with each other, which, however, in any event is not improper pleading.

The charter of Thomson, Ga.L.1927, p. 1631 et seq., provides, in section 62, that the mayor and council shall have power to require persons desiring to build to first obtain a permit and to refuse to allow buildings to be erected which will endanger the safety or health of the citizens or which are likely to become a nuisance and to provide for removal of buildings erected in violation of this section. Section 57 provides that the mayor and council shall have authority to grant licenses to all persons opening up, keeping, or maintaining any kind of business within the city, to provide for the amount and payment of licenses and for the revocation of any and all licenses issued under this section. Since the petition alleges that the city originally granted the plaintiff a permit 'for erecting, equipping and operating,' and that he did 'erect and equip' and the defendant thereafter 'withdrew permission for plaintiff to operate,' the only construction open to this court (which may take judicial notice of charter provisions, but not of ordinances) is that the plaintiff procured from the defendant both a permit to erect and a license to operate the slaughter house, which may or may not have been in the same instrument, but in any event the right to operate was granted and then unlawfully withdrawn. Accordingly, from the allegations of the petitions it appears that the defendant in doing the acts complained of here was engaged in the exercise of its police power, although in an improper manner, which power is one of its governmental functions. Duke v. Mayor & C of Rome, 20 Ga. 635; Cutsinger v. City of Atlanta, 142 Ga. 555, 83 S.E. 263, L.R.A. 1915B, 1097.

2. This action is not predicated on a contract or a tort, but seeks recovery on the theory that the act of the governing authorities of the city constituted a damaging of the property of the plaintiff without first making adequate compensation under the constitutional provision hereinabove cited, and a deprivation of the property of the plaintiff without due process of law under the Federal and State constitutional provisions pointed out.

A license granted by a city to engage in a business within its boundaries is not a contract. Code, § 20-117 distinguishes licenses from contracts as follows: 'Where, in the exercise of the police power, a license is issued, the same is not a contract, but only a permission to enjoy the privilege for the time specified, on the terms stated. It may be abrogated.' This Code section was based on two Supreme Court decisions involving liquor licenses, which, as pointed out in Ison v. Mayor & C. of Griffin, 98 Ga. 623, 25 S.E. 611, is a mere permit to do that which would otherwise be an offense against the general law. There is no general law making slaughterhouses illegal; and if no city ordinance exists covering the licensing of slaughterhouses and rendering their operation without a license within the corporate limits illegal, the plaintiff of course would be under no necessity whatever for obtaining a license. Shaver v. Martin, 166 Ga. 424, 429, 143 S.E. 402; Gray v. City of Griffin, 111 Ga. 361, 36 S.E. 792, 51 L.R.A. 131. Assuming for the sake of this decision that the defendant, as authorized by its charter, did enact a pertinent ordinance covering the subject matter, a violation of which would subject the plaintiff to penalty, and that such ordinance was reasonable and valid as coming within the police powers of the municipality (the licensing of slaughter houses having been stated in Cutsinger v. City of Atlanta, supra, to come within the police powers of the municipal corporation), then this Code section applies with equal force to the plaintiff here. According to the allegations of the petition, the governing authorities of the City of Thomson proceeded in an ex parte manner to revoke such license previously granted to operate the abattoir, which ex parte action was unauthorized and in violation of law. Nevertheless, it cannot form the basis for an action on a contract, such license constituting none.

3. As to actions arising independently of a contractual relationship, a municipality is never liable in tort for its negligent performance of a purely governmental function, however illegally the authority may be exercised. Code, §§ 69-301, 69-307; Moss v. City Council of Augusta, 93 Ga. 797, 20 S.E. 653; Davis v. City of Rome, 23 Ga.App. 188(3), 98 S.E. 231; Brown v. City of Union Point, 52 Ga.App. 212, 183 S.E. 78. It may, however, be liable in connection with the execution of a governmental function if the act constitutes a nuisance or if it amounts to the taking or damaging of private property for public use without just and adequate compensation first having been paid. City of Atlanta v. Minder, 83 Ga.App. 295, 63 S.E.2d 420; Holmes v. City of Atlanta, 113 Ga. 961, 39 S.E. 458; Central of Ga. Ry. Co. v. Garrison, 12 Ga.App. 369, 77 S.E. 193; City of Atlanta v. Gore, 47 Ga.App. 70, 169 S.E. 776.

Since the allegations of this petition show no nuisance on the part of the defendant, it is necessary, in order to determine whether or not the petition states a cause of action against it, to turn to the other theory under which a city may become liable for the action of its officers and agents in connection with the performance of governmental functions, that is, the taking or damaging of...