Johnson v. City of Alma
| Decision Date | 09 June 1966 |
| Docket Number | 23488,Nos. 23487,s. 23487 |
| Citation | 222 Ga. 272,149 S.E.2d 661 |
| Parties | Philip JOHNSON v. CITY OF ALMA et al. CITY OF ALMA v. Philip JOHNSON. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. As to petitioner, a resident and property owner in the City of Alma, Georgia, the charter of the City of Alma of 1963 (Ga.L.1963, pp. 3555-3602) is unconstitutional, null, and void, since a previous final judgment by the Superior Court of Bacon County holding said charter unconstitutional and void is binding upon all residents and property owners in the city; and the city is not required to comply with the 1963 charter in granting a franchise for the installation of natural gas lines to defendant, Atlanta Gas Light Company.
2. The petition fails to show any violation of the Constitutions of Georgia or of the United States as a ground for the injunctive relief prayed for, since the pleading is not sufficient to raise such constitutional question; nor does the franchise exempt defendant, Atlanta Gas Light Company, from the payment of any taxes as alleged.
3. For the reasons set out in Divisions 1 and 2, the trial judge did not abuse his discretion in denying the temporary injunction.
4. The trial judge properly overruled the general demurrer to the petition as it states a cause of action to enjoin defendants from carrying out the franchise agreement.
Sumner & Boatright, J. Laddie Boatright, Douglas, for appellant.
R. E. Lawson, Alma, Hansell, Post, Brandon & Dorsey, Albert G. Norman, Jr., Atlanta, for appellees.
Appellant, Philip Johnson, alleging himself to be a citizen, resident, taxpayer, and qualified elector of the City of Alma, Georgia, filed a petition seeking to enjoin the City of Alma, its mayor and councilmen, and the Atlanta Gas Light Company from executing a franchise agreement between the Atlanta Gas Light Company and the City of Alma for the construction of natural gas lines within the City of Alma. Petitioner alleges that the franchise agreement is ultra vires, illegal and void because it was not adopted in accordance with the charter of the City of Alma in that notice of the proposed franchise agreement was not advertized in the official organ or posted on the official bulletin board as required by the charter; that the grantee, the Atlanta Gas Light Company, had not given the required performance bond and other security, and that the franchise agreement purports to exempt the Atlanta Gas Light Company from the payment of business licenses and taxes. Defendants filed general and special demurrers to the petition. The trial judge overruled all the demurrers, except one special demurrer based upon the ground that the alleged charter of the City of Alma was not attached to the petition.
After a hearing on the rule nisi order as to whether defendants should be temporarily enjoined, the trial judge proceeding on the theory that the 1963 charter of the City of Alma (Ga.L.1963, pp. 3555-3602), imposing the requirements allegedly violated by defendants, was null and void and of no effect, since it had been ruled unconstitutional in a previous suit in that court, and that the 1906 charter, as amended, was operative and in effect, denied the temporary injunction. Petitioner appeals from the above rulings and from the order sustaining the special demurrer to the petition.
Defendants filed a cross appeal assigning error on the order overruling their general demurrer to the petition.
1. The contention of defendants, appellees in the main appeal, that petitioner, as a resident and property owner in the City of Alma, is bound by a final judgment entered on October 9, 1964, in the case of The State of Georgia v. The City of Alma in the Superior Court of Bacon County, which was introduced in evidence and which held that the 1963 charter is unconstitutional and invalid, is well taken. The applicable rule is as follows: 'Where a taxpayer or property owner brings an action against a county or its officers upon a matter of public and general interest to all other taxpayers of such political subdivision, and the action either expressly or by necessary implication is on their behalf, they are equally bound by the adjudication, and a judgment is a bar to any subsequent proceeding by them or any of them seeking similar relief upon the same facts.' Holman v. Bridges, 165 Ga. 296(2), 140 S.E. 886. See also Walker v. Hamilton, 210 Ga. 155, 78 S.E.2d 511; Housing Authority of The City of Atlanta v. Heart of Atlanta Motel, Inc., 220 Ga., 192, 195, 137 S.E.2d 647; Anno. 64 A.L.R. 1262 1263. A somewhat broader version of this rule is recognized in 50 C.J.S. Judgments § 796, p. 337: 'In the absence of fraud or...
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