King v. City of McCaysville
| Decision Date | 07 February 1945 |
| Docket Number | 15087. |
| Citation | 33 S.E.2d 99,198 Ga. 829 |
| Parties | KING v. CITY OF McCAYSVILLE. |
| Court | Georgia Supreme Court |
The City of McCaysville, the defendant in error, gave notice to Mrs. M. C. King, the plaintiff in error, of its intention to condemn certain property, and the principal thing sought to be condemned was a certain spring. Following the service of the notice, the plaintiff filed a petition in the superior court of Fannin County, Georgia, seeking to enjoin the city from condemning any of the property referred to in the notice, upon the following grounds:
(1) That because of the alleged illegality and unconstitutionality of the act of the General Assembly of 1941, p. 1596, reincorporating the City of McCaysville materially changing the form of government without complying with the law as embodied in the Code, § 69-101, requiring a referendum, there is no municipal power to condemn; it being insisted that the city is proceeding by mere de facto officers without authority to institute and maintain condemnation proceedings.
(2) That the property sought to be condemned is exempt from condemnation because it is already devoted to a public use. (3) There is no necessity for condemnation proceedings because there are numerous other springs located in the vicinity of the city, which could be condemned or purchased for the purpose of supplying water for the municipality.
The defendant insisted by demurrer: (1) That the act of 1941 reincorporating the City of McCaysville, was not such an act as required a referendum under the provisions of the general law as embraced in the Code,§ 69-101; but that said act while repealing former inconsistent provisions and charter powers of the municipality, merely re-enacted the same charter provisions, without any substantial change; and that in a legal sense the act neither 'repealed a charter,' 'materially changed the form of government,' nor 'substituted officers for municipal control other than those in office.' (2) That, irrespective of the validity of the act of 1941, there already existed a municipality known as the City of McCaysville, which had a continuous existence since the year 1904; that the last previous charter, Ga.L.1920, p. 1236 sec. 41, gave the city authority to condemn water rights outside the city limits, and an amendment, Ga.L.1922, p. 909, provided for the election of the same city officers at the same time as the act of 1941; also, an amendment, Ga.L.1935, p. 1121, sec. 4, provided for the election of the same officers at the same time and for the same term as the act of 1941; and that, under either of the above laws or amendments, the present officers were, at the time of the filing of the suit the legally elected officers of a legally established municipality.
(3) That the allegations of fact in the petition are insufficient to show that the plaintiff's property is exempt from condemnation because already devoted to a public use. And (4) the allegations of the petition are insufficient to show the lack of necessity for condemnation of the property in question. The court sustained the demurrer upon each and every ground, but did provide in his order that the defendant could not proceed with the condemnation of the property until certain persons, referred to in the petition as holding certain easements, were made ...
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