Frederick v. The City Council Of Augusta

• Decision Date: 30 November 1848
• Docket Number: No. 66.,66.
• Citation: 5 Ga. 561
• Parties: Martin Frederick and others plaintiffs in error. vs. The City Council of Augusta, defendant.
• Court: Georgia Supreme Court

5 Ga. 561

Martin Frederick and others plaintiffs in error. vs. The City Council of Augusta, defendant.

No. 66.

Supreme Court of the State of Georgia

NOVEMBER TERM, 1848.

In Equity, decided by Judge Holt, in Richmond Superior Court, September Term, 1848.

On the 15th of March, 1845, the "City Council of Augusta, " passed an ordinance "to provide for the construction of a canal for manufacturing purposes, and for the better securing an abundant supply of water for the city." The second section of this ordinance provided, that "there be assessed and collected, for the current year, and there is hereby assessed for said year, on all the real estate in the city of Augusta, subject to taxation, a tax of one fourth of one per cent. on the present valuation thereof, and that the clerk of council forthwith make out and deliver to the collector and treasurer of said city, a digest of all the taxable real estate in the city of Augusta, and that the said collector and treasurer, immediately thereafter, proceed to collect the said tax. and upon the receipt thereof, deliver to each tax payer a transferable scrip or certificate of such payment, securing to such tax payer, and his or her assigns, an interest in the said canal, proportionable to the amount of tax so by him or her paid, " &c.

The 3d section provided for the appointment of nine canal commissioners, among other things, "to locate the line of said canal along the high ground between Jackson and Washington Streets, south of the Beaver Dam, and provide for the discharge of the same into the river at or near the northern extremity of East Boundary Street."

The ordinance further provided, among other things, for the issuing of bonds by the City Council, for the construction of the canal.

By an amendatory ordinance, passed 7th July, 1845, the provision "for the discharge of the water of said canal into the river, at or near the northern extremity of East Boundary Street, was repealed, and the commissioners, with the advice of the engineer, were authorized to provide for its discharge, "at or near Hawk's Gully, or at such other point within the corporate limits of the city, as the commissioners aforesaid, or a majority of them, with the advice of the engineer aforesaid, may deem best adapted for an outlet for the water of said canal."

On the 27th December, 1845, was approved an Act of the Legislature of Georgia, "to incorporate the proprietors of the Augusta canal, and to confirm certain ordinances of the City Council of Augusta, therein mentioned, and to punish those who may injure their property, " by which it is declared that all persons, then holding or who might hereafter hold scrip issued under the said ordinance, should be a body corporate, by the name and style of the Augusta Canal Company.

On the 3d of October, 1846, the City Council of Augusta passed an ordinance, levying "a tax of one half of one per cent. on the value of all real estate In the city of Augusta, " for the year 1846, and for each succeeding year, until all the bonds issued under the ordinance of 15th March, 1845, with the interest thereon, shall be paid.

It was further provided, "if any portion of such tax remain unpaid at the time hereby appointed for the collection of the same, the collector and treasurer shall forthwith cause the issue of executions against the persons in default, and have the same collected by levy, in the same way, &c."

On 17th April. 1848, Martin Frederick, John W. Houghton, Thomas J. Walton, Philip McGran, Benjamin F. Chew, David L. Curtis and John Phinizy, filed their Bill in Equity, in Richmond Superior Court, charging the foregoing facts, and farther, that they were owners of real estate in the city of Augusta, upon which taxes had been assessed, agreeably to the provisions of the last ordinance, and executions issued against them.

The bill charged, that it was not competent for the Legislature, constitutionally, to make them members of a corporation without their consent, and subject them to liability as such, and that they never consented to become members of said corporation—farther, that the City Council had no authority by law, to levy taxes on real estate, to be expended without the corporate limits, whereas the canal was constructed from a point called "Bull's Sluice, " some seven or eight miles from said city.

The bill charged that said canal had not been constructed in accordance with the provisions of said ordinance, because it prescribed that it should be constructed along the high ground between Jackson and Washington streets, south of the Beaver Dam; whereas the commissioners have stopped said canal at the street above the Upper Market, so that the owners of real estatein the middle and lower part of said city, have been deprived of whatever advantage might have resulted from the construction of said canal.

The bill farther charges, that the City Council have no authority to levy a tax upon one species of property, and not to include all upon which taxes are levied for the support and government of said city.

The bill prayed an injunction, which was granted.

The defendants answered, admitting the allegations in the bill as to the facts charged, except as to the location of the canal. They insist that the canal has been constructed as described in the ordinance, so far as it is completed, and has not been completed the whole distance, simply from the want of funds.

Upon coming in of the answer, a motion was made to dissolve the injunction.

1st. Because there is no equity in the bill.

2d. If there is any equity, it has been fully sworn off in the answer.

The Court below sustained the motion and dissolved the injunction, to which decision exceptions were filed, and error has been assigned thereon.

Cone, for the plaintiffs in error, submitted the following points and authorities:

1st. Corporations can exercise no power other than that specially granted to them by their charter of incorporation, or what are incidental to its very existence. 4 Wheat. 518. 4 Condensed R. 526. 2 Crunch, 127. 4 Peters, 152.

2d. The power to raise money to construct this canal, is not granted by their charter of incorporation. Ordinances of City Council, 76, 78, 87. 3 Wend. 525.

3d. If the ordinances of the City Council, authorizing the borrowing of money for the construction of the canal, and the levying of taxes for that purpose, were illegal, a subsequent Act of the Legislature cannot make them valid. 3 Kelly, 215.

If the Legislature, by the Act of 1845. have granted the power in question, such grant is unconstitutional and void. 3 Dallas, 386. 12 Wheat. 266. 2 Peters, 380. 8 Peters, 110. 3 Kelly.209.

The Legislature possess no power to incorporate individuals against their will. 2 Mass. 269. 10 Peters, 167. 7 Do. 184. 1 Green. 81.

The City Council possess no power to levy the tax on one species of property to the exclusion of all others.

A. J. Miller, for the defendants in error.

1st. The defendants had full authority to pass the ordinance complained of. Act of 31st January. 1798. 1 Nott d McCord, 528.

2d. If such of said ordinances as were passed prior to the Act of 27th December, 1845, were invalid, the said Act made them and the subsequent ordinance, of force and valid. 1 Nott d McCord, 227.

3d. The defendants had authority to assess, collect, borrow, and appropriate money for the purpose specified in said ordinance. Act of 31st January, 1798. Act of 30th Dec. 1830. 19 Pickeriny R. 485. 23 Pick. R. 71. 3 Metcalf's R. 103. 3 Teates's Rep. 491.

By the Court—Warner, J. delivering the opinion.

The complainants filed their bill in the Court below, to enjoin the collection of a tax assessed upon their real estate, in the city of Augusta, by virtue of an ordinance passed by the City Council for that purpose.

On the coming in of the defendant's answer, a motion was made in the Court below, to dissolve the injunction, on two grounds—

1st. Because there was no equity in the bill.

2d. If there was any equity in the bill filed by the complainants, it had been fully denied by the answer. The Court below dissolved the injunction, whereupon the complainants excepted, and now assign the same for error in this Court.

The counsel for the plaintiffs in error insists in his argument, that the City Council have no power or authority, under the charter and the laws of the land, to assess and collect the tax in question.

By the 22d section of the 1st article of the Constitution of this State, it is declared. "The General Assembly shall have power to make all laws and ordinances which they shall deem necessa-ry and proper, for the good of the State, which shall not be repugnant to this Constitution." Prince, 905. The same provision was contained in the Constitution of 1789. Marbury and Crawford\'s Dig. 15. On the 31st January, 1798, the city of Augusta was incorporated. The power intended to be delegated to the corporate authorities of the city, by the Legislature, and the reasons therefor, may be gathered from the preamble to the Act, which recites, "Whereas, from the extent and population of the town of Augusta, its growing importance, both with respect to increase of inhabitants and diffusive commerce, it is indispensably necessary that many regulations should be made, for the preservation of peace and good order within the same; And whereas, from the many weighty and important matters that occupy the attention of the Legislature at their general meeting, it has hitherto been found inconvenient, and may hereafter become more so, for them to devise, consider, deliberate on, and determine all such laws, and regulations, as emergencies, or the local circumstances of the said town may from time to time require, be it enacted, &c." Marbury and Crawford\'s Dig. 136. It was manifestly the intention of the Legislature, to delegate to the corporate authorities of the city of Augusta, the power and authority to make such laws and regulations for the inhabitants of the city, as "contingencies, or the lo...