McPherson v. City of Dawson, 23374
| Decision Date | 10 March 1966 |
| Docket Number | No. 23374,23374 |
| Citation | 221 Ga. 861,148 S.E.2d 298 |
| Parties | J. B. McPHERSON et al. v. CITY OF DAWSON. |
| Court | Georgia Supreme Court |
W. L. Ferguson, Dawson, for appellants.
R. R. Jones, Dawson, for appellee.
Perry, Walters, Langstaff & Lippitt, Thad W. Gibson, Albany, for party at interest, not party to record.
Syllabus Opinion by the Court
The City of Dawson purchased certain described property within its boundaries for the purposes of establishing a public recreation park and swimming pool. The property was dedicated to these purposes for many years, has been continually used to accomplish these purposes, had not been abandoned or declared no longer useful for the purposes. The city has recently advertised the property for sale at public auction. Two citizens and taxpayers instituted a suit for injunction and a temporary restraining order was granted. At a hearing of the case the restraining order was dissolved and the case on injunction denied. The citizens and taxpayers appealed to this court. Held:
The charter of the City of Dawson was amended by an Act of the General Assembly, Ga.L.1965, p. 2995. The Act reads: 'The city counsel of Dawson shall have the power and authority, to be exercised according to their best judgment and discretion, to sell and dispose of any real property or interest therein owned by the City of Dawson and any fixtures or personal property attached thereto or used in connection therewith.' In the cases of Kirkland v. Johnson, 209 Ga. 824(1), 76 S.E.2d 396, and Harper v. City Council of Augusta, 212 Ga. 605, 607, 94 S.E.2d 690, 693, this court held: '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.' It is correctly stated in brief of counsel that 'the sole question of law in this case is whether the charter amendment gives the City of Dawson the legal right to sell the subject property that has been opened and dedicated to the public since 1953 and operated continuously since that time and not abandoned as such public recreation park and public swimming pool for the use by the public when such a sale would be a revocation and a breach of the purposes and conditions for which the subject property was acquired and dedicated. * * *'
The Act of 1965 does not specifically designate the recreation park and swimming pool as property the city is empowered to sell. However, Code § 69-203 authorized the city to sell any property owned in its purely proprietary capacity. Code § 69-203 provides: '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.' In construing the act of 1965 the statutory rule of construction must be observed: 'In all interpretations, the courts shall look diligently for the intention of the General Assembly, keeping in view, at all times, the old law, the evil, and the remedy.' Code § 102-102(9). The principle is also pronounced in Botts v. Southeastern Pipe-Line Co., 190 Ga. 689, 700, 10 S.E.2d 375, 382, that
The legislature when enacting the charter amendment of 1965 was presumably aware of the statute, Code § 69-203, which authorized the City of Dawson to sell property held by the municipality in a...
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