Fluker v. City Of Union Point

• Decision Date: 12 May 1909
• Citation: 132 Ga. 568,64 S.E. 648
• Parties: FLUKER et al. v. CITY OF UNION POINT et al.
• Court: Georgia Supreme Court

64 S.E. 648

(132 Ga. 568)

FLUKER et al.

v.CITY OF UNION POINT et al.

Supreme Court of Georgia.

May 12, 1909.

1. Municipal Corporations (§ 126^*)—Night Watchman—Creation of Office.

The mayor and council of the city of Union Point have no authority, under its charter, by ordinance to create the office of "night watchman" of said city, and to provide that the person holding such office shall serve until the ordinance is repealed, "shall go on duty at 6 p. m. and remain till 6 a. m., " and "shall protect the persons and property of said city, " and "to that end * * * shall apprehend and arrest any persons violating the laws and ordinances of said city, " and that he shall be paid by the city a stated sum per night as his salary.

[Ed. Note.—For other cases, see Municipal Corporations, Dec. Dig. § 126.*]

2. Municipal Corporations (§ 995^2-*)—Action by Taxpayers—Injunction.

Consequently a court of equity will, at the instance of citizens and taxpayers of the city, prevent by injunction the payment of such salary by the city to the incumbent of such office.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 2163; Dec. Dig. § 995.*]

(Syllabus by the Court.)

Error from Superior Court, Greene County; H. G. Lewis, Judge.

Action by O. E. Fluker and others against the City of Union Point and others. Judgment for defendants, and plaintiffs bring error. Reversed.

Park & Park, for plaintiffs in error.

Samuel H. Sibley, for defendants in error.

FISH, C. J. Only one point is presented for adjudication by the record in this case, and that is whether the city of Union Point can, under its charter, elect a night marshal, or watchman, and pay him a salary for his services from its treasury. The charter of the city in section 7 provides that the "mayor and councilmen" of such city "have the power, should they see fit to do so, to elect a mayor pro tem., a clerk of council, a city treasurer, * * * and a city marshal, to hold their offices for the term of one year, or until removed by the mayor and council, and to receive such compensation, if any, as may be fixed by the mayor and council. * * * That mayor and council may also appoint special police for special emergencies." Acts 1904, p. 678. Section 14 of the charter provides: "That the said mayor and council shall have full power and authority to enact and enforce all ordinances, by-laws, rules and regulations necessary for the good government of said city; and to protect * * * and promote peace and good order in said city." The mayor and council enacted the following ordinance: "In order to protect and promote peace and good order in the city of Union Point, a night watchman is hereby employed for said city of Union Point, at a salary of $1 per night. Said watchman shall go on duty at 6 p. m. and remain till 6 a. m. Said night watchman shall serve until this ordinance is repealed. Said night watchman shall protect the persons and property of said city. To that end he shall apprehend and arrest any persons violating the laws and ordinances of said city of Union Point." In pursuance of this ordinance, at a regular council meeting, "W. H. Gentry was elected night watchman, his salary to be $1 per night." Plaintiffs in error contend that as a municipal corporation has no power except that expressly or by necessary implication conferred upon it in its charter, and as the charter of Union Point conferred upon it authority to elect one marshal and to pay him a salary, the power of the city was restricted to the elec tion of one marshal and to the payment of his salary, except in case of special emergencies, when authority was granted to appoint special police. The defendants in error contend that, under the general authority conferred by the charter upon the mayor and council to enact and enforce all ordinances and regulations necessary for the good government of the city, and to promote and protect the peace and good order thereof, the city was authorized, under its charter, to employ a night watchman, at $1 per night, to protect the persons and property...