Swoger v. Glynn County

• Decision Date: 17 November 1934
• Docket Number: 10394.
• Citation: 177 S.E. 723,179 Ga. 768
• Parties: SWOGER v. GLYNN COUNTY et al.
• Court: Georgia Supreme Court

177 S.E. 723

179 Ga. 768

SWOGER v. GLYNN COUNTY et al.

No. 10394.

Supreme Court of Georgia

November 17, 1934

Syllabus by the Court.

Section 13 of the act approved March 1, 1933 (Ga. Laws 1933, pp. 161 171), as amended by the act approved March 22, 1933 (Ga. Laws 1933, p. 158), authorizes issuance by the state highway board to the county of Glynn of certain refunding certificates which the county may sell and use the proceeds for the purpose of paying certain bonded indebtedness as referred to in the act, and to sell and use any surplus of such certificates "for any other proper and legal county purpose." Held:

1. The building of a "boat garage" on land of the county of Glynn on the Island of St. Simons where one of the public roads approaches the seashore, which "boat garage" consists of a pier for use of the public in landing boats and vessels and equipped with a "basin" wherein boats and vessels may be safely moored and stored, the main purpose of which is to facilitate travel and transportation over water and land for the public convenience and general welfare, is a "proper and legal county purpose" within the meaning of the clause "for any other proper and legal county purpose," as contained in section 13 of the act (supra) as amended and for which the county under express authority of that law may sell and use the surplus of such certificates referred to above.

2. The building of an airport on land of the county of Glynn on the Island of St. Simons, the main purpose of which is to facilitate travel and transportation through air and on land for the public convenience and general welfare, is a "proper and legal county purpose" within the meaning of the clause "for any other proper and legal county purpose," as contained in said section 13 of the act of 1933 as amended (supra), and for which the county under express authority of that law may sell and use the surplus of such certificates referred to above.

3. The uniform airport act approved March 23, 1933 (Ga. Laws 1933 p. 102), is not void as violative of article 7, § 6, par. 2 of the Constitution of this state (Civ. Code 1910, § 6562).

4. The judge did not err, under the pleadings and the evidence, in refusing an interlocutory injunction restraining the building of the "boat garage" and the airport involved in this case.

Error from Superior Court, Glynn County; J. H. Thomas, Judge.

Suit for injunction by Howard Swoger against Glynn County and others. To review a judgment refusing a temporary injunction plaintiff brings error.

Affirmed.

B. N. Nightingale, of Brunswick, for plaintiff in error.

Conyers & Gowen, of Brunswick, and E. Smythe Gambrell, of Atlanta, for parties at interest not parties to record.

ATKINSON Justice.

In pursuance of an amendment to the Constitution of this state, proposed by the General Assembly (Ga. Laws 1931, pp. 97-101) and duly ratified at the general election held on November 8, 1932, an act was approved March 1, 1933 (Ga. Laws 1933, p. 161), purporting to authorize the state highway board to issue to the several counties of the state and to the Coastal Highway District and to the counties of that district certain certificates of indebtedness for stated amounts, called "refunding certificates," which were expressly declared to be negotiable and nontaxable. In section 12 of the act (page 170) it was in part declared that "all funds received or realized (or so much thereof as may be necessary) from the certificates of indebtedness issued or to be issued by the State Highway Department to the several counties of this State, as well as to the Coastal Highway District and the counties of said districts, * * * shall be first applied by the fiscal or governing authorities of said political subdivision receiving said certificates to the payment of that part of the outstanding and unpaid bonded indebtedness of such political subdivision incurred and used for the construction and * * * paving of the public roads or highways (including bridges) of the State, as contemplated and defined by Article 6, Section 1, of the Act approved August 18th, 1919, as said section appears on page 252 of the Georgia Laws of 1919." In section 13 of said act (page 171) as amended by the act approved March 22, 1933 (Ga. Laws 1933, p. 158), it was in part declared: "That said political subdivisions be and they are hereby authorized to sell any of the said certificates of indebtedness of said Highway Department for the purpose of paying any of said bonded indebtedness hereinbefore referred to, or of acquiring or retiring any of said outstanding bonds hereinbefore referred to, or for the purpose of investing the proceeds of the same in securities now approved by law, for the purpose of placing the same in the sinking-fund of said counties or highway districts hereinbefore referred to, and to sell and * * * use any surplus thereof for any other proper and legal county purpose; provided that in the event of sale the same shall not be discounted at a rate exceeding five (5) per cent per annum." The amount of certificates issued to the county of Glynn was $420,745.28. This amount exceeded the bonded indebtedness of the county as referred to in the act, thus producing a surplus.

1. In McGinnis v. McKinnon, 165 Ga. 713, 141 S.E. 910 913, this court recognized as a proper and legal county purpose the construction by the county of "a pier upon the property of the county at the terminus of one of the public roads on the Island of St. Simons, as a part of such road, to be used by the public for the purpose of enabling boats and vessels to make landings, thereby affording means of transportation to and from the island by navigation, and, in connection with such pier and as a part of the same structure, to provide a pavilion to which the public may resort for observation and recreation, and also to provide restrooms and refreshment stands for public comfort and convenience, where the primary object of constructing such improvements, is for the promotion of public convenience, health, and general welfare." The purpose there to be accomplished was twofold: (1) Public convenience and welfare in the matters of public travel and transportation; (2) promotion of health and the general welfare. The first is generally illustrated by construction and maintenance of public roads and highways. The second has been illustrated by the building and operation of an ice plant by a city, as ruled in Holton v. Camilla, 134 Ga. 560, 68 S.E. 472, 31 L.R.A. (N. S.) 116, 20 Ann.Cas. 199. In McClatchey v. Atlanta, 149 Ga. 648 (2), 101 S.E. 682, it was held: "Under former rulings of this court, 'the building of a cyclorama, museum, and similar quarters in Grant Park for the housing of the cyclorama picture and such collections suitable for a museum as the city may have or which may be donated for such purposes,' is a public or governmental function. Cornelisen v. Atlanta, 146 Ga. 416, 91 S.E. 415, and cit.; City of Warrenton v. Smith, 149 Ga. 567, 101 S.E. 681; Board of Education of Fulton County v. Board of Education of College Park, 147 Ga. 776 (3), 779, 95...