Harper v. City Council of Augusta, 19474

• Decision Date: 08 October 1956
• Docket Number: No. 19474,19474
• Parties: G. C. HARPER et al. v. CITY COUNCIL OF AUGUSTA et al.
• Court: Georgia Supreme Court

Page 690

94 S.E.2d 690

212 Ga. 605

G. C. HARPER et al. v. CITY COUNCIL OF AUGUSTA et al.

No. 19474.

Supreme Court of Georgia.

Oct. 8, 1956.

Syllabus by the Court.

Where the General Assembly has conferred the legislative authority to do so, a municipal corporation, which owns the fee-simple title to property that has been dedicated to the public and used by the public as a park, may sell said property whether or not the use of the property as a park has been abandoned by the public.

After the decision of this court in City Council of Augusta v. Newsome, 211 Ga. 899, 89 S.E.2d 485, the defendants filed an amendment to their answer, in which they alleged that, subsequent to the grant of the temporary injunction on June 16, 1955, the General Assembly passed an act vesting in the City Council of Augusta power and authority to sell and convey the property in question to Sears-Roebuck & Company, Ga.L.1956, p. 2406; and that thereafter a referendum election was held in the City of Augusta on April 18, 1956, at which time a majority of the votes cast were in favor of adopting said act; that the General Assembly also passed an act approved February 8, 1956, Ga.L.1956, p. 22, authorizing the selling or disposing by any municipal corporation of recreational and park property dedicated to a public use on such terms and conditions as may be deemed desirable or necessary by the mayor and council, subject to certain conditions; that, pursuant to and in strict compliance with said statutes, the property was duly advertised, and the only bid submitted was by Sears-Roebuck & Company, and such bid was accepted by the City Council of Augusta.

To this amendment the plaintiffs filed general demurrers. Upon a stipulation between the parties, agreeing to the facts as stated in the amendment and that only questions of law were involved, a jury trial was waived and all questions were submitted to the trial court for decision. The trial court overruled the demurrers and dissolved the temporary injunction previously granted, and found that the defendants were authorized to sell said property and denied a permanent injunction. To the ruling on the demurrers and the order dissolving the temporary injunction and denying a permanent injunction, the plaintiffs except.

B. H. Barton, George Hains, Sol. Gen., Augusta, for plaintiffs in error.

E. D. Fulcher, Fulcher, Fulcher & Hagler, Augusta, for defendants in error.

MOBLEY, Justice.

1. The demurrer to the amendment, to the effect that there has been a final adjudication in this case and that the question thereby presented is res judicata, is without merit. In City Council of Augusta v. Newsome, 211 Ga. 899, 89 S.E.2d 485, this court held that it was not error to temporarily enjoin the city from disposing of property which admittedly had been dedicated to the public for use as a park, because there had not been an abandonment of the use by the public. The city at that time had no legislative authority to dispose of the property, and, consequently, the question presented by the defendants' amendment was not before the trial court or this court. While the previous judgment of the trial court, rendered on the interlocutory hearing and affirmed by this court, was a final adjudication as to the issues then existing, City of Atlanta v. First Methodist Church, 83 Ga. 448, 10 S.E. 231; Ingram v. Trustees of Mercer University, 102 Ga. 226, 29 S.E. 273; Murphey v. Harker, 115 Ga. 77, 91, 41 S.E. 585; Sumner v. Sumner, 121 Ga. 1, 10, 48 S.E. 727, it was not final as to the grant or refusal of a permanent injunction, or as to the continuance of a temporary injunction, where the issues governing such relief have materially changed, as shown by the defendants' amendment. Before the final judgment, exceptions to which we now consider, new issues were raised on which there has been no adjudication. Marietta Chair Co. v. Henderson, 121 Ga. 399, 49 S.E. 312, is very similar on its facts to the present case. There, a decree was entered enjoining the obstruction of a street in the city of Marietta, from which no appeal was taken. Thereafter the offending party was held in contempt for failure to remove the obstruction as previously ordered. This court affirmed that order. After this judgment was affirmed, a petition was presented showing that the General Assembly had, subsequently to the decree, passed an act ratifying the action of the city and authorizing the closing of the street. This court stated as follows: (headnote 6) 'Where a decree based on a consent verdict is entered, requiring the removal of an obstruction in a public street, and subsequently a state of facts arises which renders the maintenance of the obstruction lawful and proper, a petition praying for the granting of an order declaring that the decree is no longer binding should be granted.'

2. 'A constitutional attack upon an act or statute, which does not allege specifically how or wherein the act or statute violates the designated provision of the Constitution, is insufficient to present any question for review.' Persons v. Lea, 207 Ga. 384(2), 61 S.E.2d 832, 833, and cases cited. Applying the foregoing principle of law, which has been uniformly adhered to by this court, the demurrer, which attacks Ga.L.1956, p. 22, and Ga.L.1956, p. 2406, as...