Wells v. The Mayor And Council Of Atlanta
| Citation | 43 Ga. 68 |
| Parties | L. C. WELLS et al., plaintiffs in error. v. THE MAYOR AND COUNCIL OF ATLANTA et al., defendants in error. |
| Decision Date | 31 January 1871 |
| Court | Supreme Court of Georgia |
*Corporations. Ultra Vires. Construction of Acts. Practice of Supreme Court. Before Judge Hopkins. Fulton county. Chambers. December, 1870.
Wells and others averred in their bill that on the 23d of September, 1870, the General Assembly passed "an Act to authorize the Mayor and Council of the city of Atlanta to provide for the introduction of water-works in said city and for other purposes" and set out parts of said Act, by which it appeared that a debt could be created andthat taxation was permitted to raise funds for its payment, etc.; that it provided for the election of a board of Water Commissioners, with power to make such contract, providing for their election at the next election for Mayor and councilmen for Atlanta, and that the Mayor and council then in being should exercise such powers only until such election. Further they averred that certain persons therein named, were, on the 7th of December, 1870, (which was the regular day for the election of Mayor and Councilmen for Atlanta,) duly elected Water Commissioners; that at the next meeting of the Mayor and Council thereafter they accepted the bid of Woodruff & Company and Stidman & Company, of Pennsylvania, to erect water-works for Atlanta, at the price of $436,000 00, and exhibited a copy of the resolution by which said bid was accepted.
As citizens of Atlanta and tax-payers on property therein, they said the Mayor and Council had no right to act in said matter after said election of Water Commissioners, though the Water Commissioners had not been (nor yet were) organized and qualified as provided by law, and have not considered the question of water-works in their official capacity. Further, they said that said acceptance was made at two o'clock at night, because of haste to complete the contract; that the spirit of the Act was not to precipitate such a burden of taxation upon them, but that the Water Commissioners, as trustees for the citizens, should patiently investigate *and then act in the premises. They charged that the contract had been let at too high a price, they being informed by persons skilled in the business, and believing, that less than half of that sum is as much as said work is worth. Besides, they averred that the benefits of said water-works could not be fully realized until a system of sewerage is constructed, and that that will cost half as much as the entire work, and the city, in their opinion, is unable to pay so much; that by the Act no more than $500,000 00 in city bonds can be expended, which at seventy cents in the dollar makes $350,000 00; that this sum will have to be paid for the mere erection of the works, and defeat the chief purpose of the work. Besides, at such rate, to pay $436,000 00 will force the issue of more bonds than can be issued under said Act. They denominated said acceptance by the Mayor and Council "remarkable action, " done in "haste, " and an "egregious error" "whether made through fraud, accident, or mistake, " they did not know, but said "it is certainly one of these;" and they charged that said bidders, whose bid was accepted, "are actuated by fraudulent designs in seeking said contract, and by this wily scheme, by the aid of many confederates and coadjutors have overreached the said Mayor and Council." They understood, they said, that the contract had not yet been signed by the Mayor, and waiving discovery, they prayed an injunction restraining the Mayor and Council from exercising the power to erect water-works, from issuing any bonds or obligations to said bidders, or any one for them, or taking any further steps in the premises, and restraining said bidders from further proceeding to complete said contract or to operate thereunder, and from claiming any rights under the same, and for general relief. The Chancellor simply ordered the defendants to shew cause why the injunction prayed for should not be granted. The defendants answered the bill. The bidders simply submitted to the Chancellorquestion of power in the Mayor and Council of Atlanta to act in the premises, denied all *fraud and combination, and referring to the bid and specifications exhibited, said the price was not unreasonable, but only a moderate compensation for the work.
The Mayor and Council of Atlanta admitted the passage of said Act, and the right of complainants to sue in the capacity of citizens and tax-payers. It admitted that it was reported that persons (two of them being two of these complainants) ran for, and that the persons named in the bill as such were elected to the office of Water Commissioners, at the said regular election of Mayor and Council for 1871, to-wit: on the 7th of December, 1871, but said they had no official information of the fact; that these commissioners had not, (nor did it appear that they would,) qualify and act, and submitted that under said Act they could not act till the inauguration of the Mayor and Council of 1871. They contended that under the charter of Atlanta, independent of said Act, they had the right to make such contract, that the Act did not take away that power, or if it did, it left them to exercise the powers by said Act given to Water Commissioners till Water Commissioners were duly organized. They gave then a history of their connection with this business, substantially as follows:
On the.... day of......, 1870, they appointed three members of the board as a committee to investigate and report as to waterworks. One of this committee was Mr. Murphy, a skilled mechanic. By actual survey of various localities, by correspondence and by Murphy visiting various Northern and Western cities and studying their water-works, the committee became prepared to report and on the 30th of September, 1870, did report. A copy of that report is made part of the answer by exhibit. It stated substantially as follows: The committee considered Peachtree Creek, South river and the Chattahoochee river the only points from which a supply of water could be had. The two former would supply three million of gallonsof water in every twenty-four hours, and the latter would sup-ply an unlimited quantity. *The elevation at those points, the approximate cost of supplying three millions of gallons per day from either of the two former, and five millions of gallons from the Chattahoochee, with the distance of each from the center of city was as follows, for sixty thousand population:
-----------------------------------------
|Elevation. | |Distance.|Cost. |
|-------------|---|---------|-----------|
|Peachtree |336|5 miles. |$490,000 00|
|-------------|---|---------|-----------|
|Chattahoochee|387|7 miles. |750, 000 00|
|-------------|---|---------|-----------|
|South River |275|5 miles. |380, 000 00|
-----------------------------------------
This expense might be decreased by taking less pipe for distribution, using smaller machinery, etc. The water of Peachtree Creek is too impure for drinking. The Cornish system had long been tried, and was certainly good, the Holly system, etc., presented many advantages, but was not so certain as to results. Throughout it fur-nished the data upon which they came to these conclusions, and concluded with an exhibit of the great advantages from water-works, the probability of the consumption paying the tax on costs, etc. The answer averred that five hundred copies of this report were published in pamplet form for distribution, and that it was also published in one or more of the city papers, that the citizens and the press discussed the whole subject, and there was an universal wish for water, and no difficulty but its cost. Further, the Mayor and the Council on the 4th of November, 1870, ordered proposals for sealed bids to be made and put in by the 25th of that month, with specifications and guarantee of plan and performance of the works, and for "machinery in duplicate capable of raising three millions of gallons of water two hundred and seventy-five feet, or five million gallons three hundred and eighty-seven feet, in twenty-four hours, thirteen or seventeen miles of pipe from four to twenty-four, with one hundred and thirty or more fire hydrants, " and the Mayor and Council had the right to accept any or reject all bids.
This proposal included only South river and Chattahoochee *river, for the reasons aforesaid. This publication was made on the 5th of November, 1870. On the 25th the only bids presented (except some separate bids for parts of the work) were Woodruff\'s, Stidham & Company\'s for $843,850 00, Ware & Yard-ley\'s, for $704,221 88 for said supply from the Chattahoochee, and the bids for South river, shewn in the Mayor\'s call for an election hereinafter stated. Such were the facts at the meeting of the board on Friday night before the election for Mayor and Council, for 1871, and the bidders were here upon expenses, waiting for the result. On that night the Mayor and Council determined to submit the matter to the voters of the city. So, on the 4th of December, 1870, the Mayor published a request that the voters at the municipal election should vote for or against water-works, and stated in his publication that the bids for bringing water from South river were $481,500 00, $435,440 00, $345,837 00 and $338,000 00, and that the bids for the Chattahoochee river were "a great deal more."
Indeed, the Mayor and Council had determined that it cost too much to bring the water from the Chattahoochee. At said election over nineteen hundred votes were polled for water-works, and but four hundred and thirty-eight against them.
When this vote was officially...
To continue reading
Request your trial