Keen v. City of Waycross

• Decision Date: 07 July 1897
• Citation: 29 S.E. 42,101 Ga. 588
• Parties: KEEN v. MAYOR, ETC., OF CITY OF WAYCROSS.
• Court: Georgia Supreme Court

29 S.E. 42

101 Ga. 588

KEEN v. MAYOR, ETC., OF CITY OF WAYCROSS.

Supreme Court of Georgia

July, 7, 1897

Syllabus by the Court.

1. While a municipal corporation may lawfully do such things as are necessarily incident to the proper discharge of its public functions, it is not, as a general rule, within the power of such a corporation to engage in an occupation or business such as is usually pursued by private persons.

2. Accordingly, the authorities of a city whose charter provides in general terms for the erection and maintenance of a system of waterworks may have all such work done as may be necessary to connect the city's mains with the pipes of water consumers, and may do all such acts as may be essential to protect its property from injury or destruction, or secure proper sanitation, and, generally, it may do everything necessary to render the system efficient and beneficial to the public; but such authorities cannot lawfully engage in a general plumbing business, and, in the course thereof, sell supplies and materials to private citizens, and do contract work in placing the same upon their premises.

3. Engaging in such a business, and having such work done, are manifestly acts which are ultra vires; and while a person carrying on a similar business cannot, on the ground that the same has been injured or destroyed by competition on the part of the city, maintain a petition for equitable relief, any citizen and taxpayer may, as such, obtain an injunction restraining the municipal authorities from doing such acts.

4. The charter of the city of Waycross contains nothing authorizing its mayor and council to do the acts complained of in the plaintiff's petition, and the court erred in refusing to grant an injunction.

Error from superior court, Ware county; J. L. Sweat, Judge.

Equitable proceeding by R. R. Keen, as a citizen and taxpayer of the city of Waycross, to restrain the mayor and council of that city in the performance of acts alleged to be ultra vires. From an order denying the injunction, plaintiff brings error. Reversed.

Hitch & Myers, for plaintiff in error.

John C McDonald, for defendants in error.

LUMPKIN P.J.

As "a citizen and taxpayer of the city of Waycross," Keen instituted an equitable proceeding against the mayor and council of that city, the purpose of which was to enjoin its municipal officers from doing certain acts alleged to be ultra vires. The case made by his petition was, in brief, as follows: Under a license issued by the municipal authorities he had "for some years past conducted in said city a plumbing and gas-fitting business." Early in the year 1896, the waterworks commission, a co-ordinate branch of the city government, had "entered into active competition with [him] in the plumbing business, and the keeping for sale and selling plumbers' supplies and furnishings," making contracts with, and doing "work for, the citizens of Waycross, in direct competition with [his] lawful and licensed business, and without the payment of tax or license." The "said business carried on by the mayor and council, as aforesaid, [was] illegal, and without warrant in law or by charter, and, in consequence thereof, he had sustained great loss, and was being daily injured and damaged. At the hearing, it appeared that the city was in fact engaged in a more or less general plumbing business having purchased supplies, some of which were then on hand, and having furnished materials to, and done work for, such of its citizens as had applied to its superintendent to have pipes and fixtures placed in and upon their premises. On the supplies thus furnishes and the work so done, the city realized "a reasonable profit," which the waterworks commissioner reported had "materially assisted [them] in keeping [their] accounts on the right side." It was contended by counsel for the defense that, as the plaintiff was an unskillful and incompetent plumber, and did not do work to the satisfaction of the city's patrons, it has become necessary for the waterworks commissioners to engage, to the extent indicated, in the plumbing business, in order to render the city's waterworks system efficient and self-sustaining; and the act of September 19, 1889, authorizing the city to establish and maintain a system of waterworks, and creating a board of commissioners to exercise supervision and control over the same, was relied on as conferring upon the municipal authorities full power in the premises to do everything necessary or expedient to bring about this result. The injunction prayed for was denied, and the plaintiff brings the case to this court for review.

1. The primary design of the creation of a municipal corporation is that it may perform certain public functions as a subordinate branch of government; and, while it is invested with full power to do everything incident to a proper discharge thereof, no right to do more can ever be implied. Accordingly, in the absence of express legislative sanction such a corporation has no authority to engage in any independent business enterprise or occupation such as is usually pursued by private individuals. In other words, its legitimate duty is to deal with public...