Singer v. City of Cordele, 25189

• Decision Date: 22 May 1969
• Docket Number: No. 25189,25189
• Citation: 168 S.E.2d 138,225 Ga. 323
• Parties: Jerry A. SINGER v. CITY OF CORDELE et al.
• Court: Georgia Supreme Court

Page 138

168 S.E.2d 138

225 Ga. 323

Jerry A. SINGER v. CITY OF CORDELE et al.

No. 25189.

Supreme Court of Georgia.

May 22, 1969.

Syllabus by the Court

1. The charter of the City of Cordele (Ga.L.1922, pp. 680, 682), grants the governing authority the power to sell cityowned property in its discretion without a referendum of the voters.

2. Where a governing authority has discretion to act in a given matter an injunction prohibiting such action will lie only when the action about to be taken is fraudulent or corrupt, and allegations to support such conclusion must be set forth with particularity.

3. Alleged error in permitting a third party to intervene will not be considered where a final judgment dismissing the plaintiff's petition for failure to state a claim is properly rendered.

Jerry L. Singer filed a petition seeking an injunction prohibiting the City of Cordele from disposing of its electrical distribution system to the Crisp County Power Commission and to prohibit the granting of a franchise to said power commission to distribute electricity in the defendant municipality. Crisp County and the Crisp County Power Commission were allowed, over the plaintiff's objections, to intervene and thereafter motions were sustained which dismissed the plaintiff's petition for failure to state a claim.

Guy V. Roberts, Jr., Cordele, for appellant.

Joseph Andrews, Cordele, for appellee.

Wright, Reddick & Faircloth, Graydon D. Reddick, Cordele, Perry, Walters, Langstaff, Lippitt & Campbell, Robert B. Langstaff, Albany, for Crisp County Power Commission and Crisp County.

NICHOLS, Justice.

1. The charter of the City of Cordele gives the governing authority of said city the right to 'purchase, hold, enjoy, receive, possess, and retain in perpetuity, lands, tenements or hereditaments of any kind whatsoever within and without the corporate limits of said city for corporate purposes, and to sell alien and convey, exchange or lease the same.' Ga.L.1922, pp. 680, 682.

In Adams v. Mayor, etc., City of Rome, 59 Ga. 765, 769, it was held that the language 'sell, alien, exchange, lease, convey in any manner whatsoever' could not be limited without at the same time limiting like provisions in the charter to acquire property. In Byrd v. City of Alma, 166 Ga. 510, 143 S.E. 767, a like power in the charter of that city was held not affected by the Act of 1925 (Ga.L.1925, p. 177), codified as Code Chapter 91-9, which requires advertisement and possible vote by the voters of the city before a city council may sell city-owned real property. Thus, the power of the City of Cordele to sell its electrical distribution system was a discretionary matter for the consideration of the governing authority of the city, and not an ultra vires act as alleged in the plaintiff's petition.

(a) Nor is the proposed granting of a franchise an ultra vires act. See Ga.L.1962, p. 140 (Code Ann. § 69-310(e)); Ga.L.1922, pp. 680, 711.

2. The next question for consideration is whether the plaintiff's petition was sufficient to withstand the defendant's motions to dismiss as failing to state a claim for the relief sought (an injunction prohibiting the sale of the electrical system based upon allegations attempting to show a gross abuse of discretion on the part of the city council).

In Lewis Motor Company, Inc. v. Mayor, etc., of City of Savannah, 210 Ga. 591, 82 S.E.2d 132, it was held: '3. 'When a municipal corporation is, by its proper officers, acting within the scope of its powers, a court of equity will not, at the instance of the tax-payers of the corporation, interfere to restrain or control its action, on the ground that the same is unwise or extravagant. To sustain such interference, it must appear, either that the act is ultra vires of fraudulent and corrupt.' Wells v. Mayor, etc., of City of Atlanta, 43 Ga. 67(2). 4. 'The business affairs of a municipality are committed to the corporate authorities, and the courts will not interfere except in...