Kirkland v. Johnson
| Citation | 76 S.E.2d 396,209 Ga. 824 |
| Decision Date | 10 June 1953 |
| Docket Number | No. 18222,18222 |
| Parties | KIRKLAND et al. v. JOHNSON et al. |
| Court | Supreme Court of Georgia |
George C. Kennedy, Manchester, for plaintiffs in error.
Robert H. Jordan, Talbotton, for defendants in error.
Syllabus Opinion by the Court.
W. P. Kirkland and others, as citizens, residents, and taxpayers of the City of Manchester, filed an equitable petition against that city, and certain named individuals constituting its acting Board of Commissioners, which in substance alleged: On March 9, 1953, the defendant commissioners adopted a resolution to sell certain described real estate owned by the city 'and formerly used for school purposes.' Pursuant to this resolution, the defendants were advertising the property for sale, in which advertisement sealed bids were asked to be received by a stated time, the city reserving the right to accept or reject any and all bids. Under the charter power of the City of Manchester, it has no corporate authority to sell, alien, or convey the property acquired by it, and the resolution offering the property for sale is ultra vires and void. The prayers were that the defendants be restrained and enjoined from selling, conveying, or alienating this property. The general demurrer of the defendants was sustained, and by bill of exceptions the plaintiffs assign error on the order sustaining the general demurrer and dismissing the petition. Held:
1. As a general rule, property held by a municipality for governmental or public uses can not be sold without express legislative authority, but must be devoted to the use and purpose for which it was intended. The rule is otherwise as to property held by a municipality in its proprietary or private capacity, where not devoted to any specific public use. 10 McQuillin Municipal Corporations (3d ed.), § 28.37, and citations therein. Though land be bought for a public use, if not actually used for such purpose it can not be said to be held by the municipality affected by a public trust, and may be sold. Kings County Fire Insurance Co. v. Stevens, 101 N.Y. 411, 5 N.E. 353; City of Williamsburg v. Lyell, 132 Va. 455, 112 S.E. 666.
2. Though all property owned by a municipality is presumptively held for the public use, Code, § 69-305, the only allegation in the instant petition as to the property proposed to be sold by the municipality is that the defendants were preparing to sell certain real property owned by the city 'and formerly used for school purposes.' Applying the rule that, upon consideration of the petition as against a general demurrer, it must be construed most strongly against the plaintiffs, the petition in the instant case is construed as meaning that the property is no longer being used for governmental or public purposes, there being no specific allegation that it is not being held by the defendant municipality in its proprietary or private capacity.
3. The act of the General Assembly incorporating the City of Manchester, Ga.L.1909, p. 1071, as amended, does not contain any general or specific authority for the city to sell, convey, or alienate any property owned by it. Section 1 expressly authorizes the city to contract and be contracted with, and to make and enact all ordinances, rules, and regulations for the transaction of its business and the welfare and proper government of the city as to the proper authorities may seem best, and said city 'shall be able in law to purchase, hold, receive, enjoy, possess and retain in perpetuity, or for any term of years, any estate or estates real or personal, lands, tenements, and hereditaments, of what kind or nature soever, within the limits of said city, for corporate purposes.' Powers of a municipal corporation are fixed by its charter and by general statutory authority relating to such corporations, and it may exercise such powers as are expressly delegated to it, as well as those which would be reasonably implied from the express terms of the charter. Lofton v. Collins, 117 Ga. 434(2), 438, 43 S.E. 708, 61 L.R.A. 150. 'The council or other governing body of a municipality has a discretion in the management and disposition of its property, and where it is exercised in good faith, equity will not interfere therewith.' Code, § 69-203. The powers granted to municipal corporations are to...
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Department of Transp. v. City of Atlanta
...sealed bid procedure. See generally Beazley v. DeKalb County, et al., 210 Ga. 41(1), 77 S.E.2d 740 (1953); Kirkland et al. v. Johnson et al., 209 Ga. 824, 76 S.E.2d 396, 399 (1953). d. The DOT contends that the trial court erred in finding the land transfer here an ultra vires act by the Ci......
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...doubt concerning the existence of a power is resolved by the courts against the municipal corporation. Kirkland v. Johnson, 209 Ga. 824, 825-826(3), 76 S.E.2d 396 (1953). "[A]ll municipal charters are strictly construed, and... powers which are not expressly, or by necessary implication, co......
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