Lee v. City of Atlanta
| Decision Date | 06 April 1944 |
| Docket Number | 14784,14785. |
| Citation | 29 S.E.2d 774,197 Ga. 518 |
| Parties | LEE v. CITY OF ATLANTA. CITY OF ATLANTA v. LEE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Where a city is engaged in installing, servicing, and maintaining a burglar alarm system through the wires of a telephone company, so that when the electric circuit has been broken a signal will flash at the police station and be relayed by radio to police officers, such operation is in virtue of the police powers of the municipality and is a governmental function. Where the work is essentially for public welfare and for the general good of all the inhabitants of the city, its operation as a governmental function is not changed by the fact that the city makes a charge for the cost of installation and a monthly service charge for its maintenance and operation, if it is not undertaken for gain or for private objects.
2. The constitutional questions raised are not properly presented for decision.
Bob Lee, as a citizen and taxpayer, filed a petition in Fulton superior court against the City of Atlanta, which contained substantially the following allegations: Petitioner is engaged in installing, servicing, and maintaining burglar-alarm systems, and the city, through its agents and employees, is engaged in a similar business. After a place of business is wired by the city, it is connected with a telephone so that when the electric circuit has been broken a signal will flash at the police station and be relayed by radio to police officers. The city receives $1.50 per month from each subscriber, and the latter also pays the telephone bill which is based upon zones, varying in price according to the distance from the police station. The telephone bills are mailed directly to the subscribers, but the city has guaranteed the telephone company $625 a month for its service. The city is not conducting this business as a governmental function, but renders the service only to persons who subscribe therefor. On numerous occasions petitioner has received requests to install his burglar alarm system, after which the city would make an estimate for less than the actual cost of the material and labor and insist upon the customer entering into a contract with it. In this manner the city is engaged in a private enterprise for pecuniary gain without charter authority in competition with petitioner and other citizens, and such acts are ultra vires and contrary to law. On a stated occasion the police threatened to make a case against one of petitioner's customers for making unnecessary noise after an alarm had sounded, and in this way the city discourages customers from purchasing petitioner's service, and tends to create a monopoly. The city has designated two of its officers to devote their time to the operation of its burglar alarm system. The city has no charter authority to enter into private business or to render service to one class of persons which it does not render to all of its citizens. By ordinance it has placed a license of $100 a year on the business of operating a burglar alarm system, and it is operating a competitive system free from license, which gives it an unfair advantage over others engaged in similar business, and is in violation of article 7, section 2, paragraph 1, of the Constitution of Georgia, Code § 2-5001, which provides that 'all taxation shall be uniform upon the same class of subjects.' The acts of the city are also in violation of article 1, section 1, paragraph 2, of the State Constitution Code, § 2-102, which provides that 'protection to person and property is the paramount duty of government, and shall be impartial and complete.'
The prayers were to enjoin the city from operating a burglar alarm system and from conducting such private business in competition with petitioner, to enjoin the city from collecting licenses from petitioner, for process, and general relief.
The city interposed a demurrer to the petition on general and special grounds. The demurrer was overruled, and the city filed exceptions pendente lite. On the trial, after hearing evidence, the judge directed a verdict in favor of the city. The plaintiff excepted to an order overruling his motion for new trial as amended.
The city filed a cross-bill of exceptions, assigning error on its exceptions pendente lite.
Fines & Hendrix and Noah J. Stone, all of Atlanta, for plaintiff in error.
J. C Savage, E. L. Sterne, J. C. Murphy, and Bond Almand, all of Atlanta, for defendant in error.
ATKINSON Justice (after stating the foregoing facts).
1. The Allegations of a pleading attacked by demurrer are to be construed most strongly against the pleader, when Attacked by demurrer. The demurrer admits only the facts, and...
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