Town of Leesburg v. Putnam

• Decision Date: 27 November 1897
• Citation: 29 S.E. 602,103 Ga. 110
• Parties: MAYOR, ETC., OF TOWN OF LEESBURG v. PUTNAM et al.
• Court: Georgia Supreme Court

29 S.E. 602

103 Ga. 110

MAYOR, ETC., OF TOWN OF LEESBURG v. PUTNAM et al.

Supreme Court of Georgia

November 27, 1897

Syllabus by the Court.

1. Neither the "general welfare clause," usually found in the charters of towns and cities, nor the special power "to license and regulate the management of barrooms saloons," etc., includes the power to run and operate barrooms and saloons, or to otherwise embark the municipal corporation having authority to exercise such powers only either in the business of selling liquor or in any other commercial enterprise. The exercise of such a power, being inconsistent with the purposes for which municipal corporations are ordinarily organized, must rest upon express legislative authority, and, in the absence of such authority such a power does not exist.

2. There was no error in granting the injunction.

Error from superior court, Lee county; Z. A. Littlejohn, Judge.

Suit by C. F. Putnam and another against the mayor, etc. of town of Leesburg, for an injunction. There was a decree for plaintiffs, and defendants bring error. Affirmed.

Long & Son and Allen Fort, for plaintiffs in error.

J. W. Walters and Thompson & Whipple, for defendants in error.

COBB J.

In 1874 the town of Leesburg was incorporated by an act of the general assembly (Acts 1874, p. 201). It was there declared that an act entitled "An act to prescribe the manner of incorporating towns and villages in this state," approved August 26, 1872, excepting the first five sections thereof, should be the charter of the town of Leesburg, with the proviso that no recorder should be elected for the town. That part of the general law for the incorporation of towns and villages which was thus declared to constitute the charter of the town is now embraced in section 689 et seq. of the Political Code. "In a town or village thus incorporated, the council has power to make and pass all needful orders, by-laws, ordinances, resolutions, rules and regulations not contrary to the constitution and laws of this state." Pol. Code, § 696. Such council also has "power to license and regulate the management of barrooms, saloons, hotels and private boarding houses, livery stables, and private and public transportation through the town or village." Pol. Code,§ 702. There being no law prohibiting the sale of liquor in the county in which Leesburg is situated, the council of the town fixed the license for the sale of liquors during the year 1897 at $1,000. There was no application for a license, and the council thereupon passed the following ordinance:

"Section 1. Be it ordained by the town council of Leesburg, Georgia, and it is hereby ordained by authority of the same, that the council of said town, as soon as practicable after the passage of this ordinance, establish what is known as a dispensary in said town for the sale of spirituous and malt liquors, under such regulations as they may by their authority enact.

"Sec. 2. Be it further enacted, that a committee of three be appointed by the mayor from the council of said town to manage and prescribe regulations for said dispensary, to purchase stock and put in operation said dispensary subject to the approval of the town council."

Section 3 repeals conflicting laws.

Passed and approved June 10, 1897.

The council were proceeding to establish a dispensary in accordance with such ordinance, when certain residents and taxpayers of the town filed an equitable petition, alleging that there was no authority in the charter of the town authorizing the passage of such an ordinance; that debts in the name of the town had been or were about to be contracted under the authority of the ordinance; and praying that the town council be enjoined "from further carrying out their illegal scheme for the establishment of the said dispensary, from selling or offering to sell any liquors in the town of Leesburg, from contracting any debts or paying out any money in connection with said dispensary, and doing any other act in connection with the same." Upon the hearing the judge granted the injunction prayed for, and to this ruling the defendant excepted.

A public corporation is one having for its object the administration of a portion of the powers of government delegated to it for that purpose. Civ. Code, § 1833. Its powers are fixed by its charter. Civ. Code, § 1831. It may exercise such powers as are expressly delegated to it, as well as those which would be reasonably implied from the terms of the charter. The implied powers of a municipal corporation must be such as are necessary and proper to carry into effect the objects and purposes for which the corporation was created. Did the town council of Leesburg have authority to establish "what is known as a dispensary" for the sale of spirituous and malt liquors? The purpose of the ordinance being to establish in the town of Leesburg that system of selling liquors which is known as the dispensary system, it becomes necessary to inquire what is such system. It must be presumed that the town council of Leesburg, when it passed the ordinance quoted above, had in...