Barge v. Camp
Barge v. Camp
Opinion of the Court
(After stating the foregoing facts.) The contention of the defendants in error that the plaintiffs have no right to maintain the present action is without merit. While no person will be heard to question the constitutionality of a statute except as it may infringe upon his personal or property rights, and an injunction will not be granted on mere apprehension, and a party suing as a taxpayer, in order to obtain such relief, must show that he is in danger of injury through loss of public funds or property (Wallace v. City of Atlanta, 200 Ga. 749, 38 S. E. 2d, 596)—a citizen and taxpayer of a county or municipality has a pecuniary interest in the sum made up from taxes, and this interest will authorize him to seek to prevent an illegal diversion of tax money or property. This court has many times held that citizens and taxpayers of both counties and municipalities have such interest as will -authorize them to maintain actions to enjoin the unlawful disposition of public funds or property. Morris v. City Council of Augusta, 201 Ga. 666, 669 (40 S. E. 2d, 710).
“While, under the Constitution, the judiciary has the power and duty to declare void legislative acts in violation of the Constitution of this State or of the United States, the conflict between the act and the fundamental laws must be clear and palpable before the act of the coordinate department of the government will be declared unconstitutional. It is the duty of courts to put such construction upon statutes, if possible,- as to uphold them and carry them into effect.” Lamons v. Yarbrough, 206 Ga. 50 (2) (55 S. E. 2d, 551, 11 A. L. R. 2d, 717). See also Stegall v. Southwest Georgia Regional Housing Authority, 197 Ga. 571 (30 S. E. 2d, 196). Keeping this in mind, is the act here involved subject to the various constitutional attacks made upon it? It is first insisted that the entire act is so hedged about and restricted that the possibility of other counties and municipalities ever being able to come within the classes defined therein is so remote and improbable that it excludes every municipality but Atlanta and could only apply to Fulton County, and is,
Nor is the act violative of or repugnant to article 11, section 1,
It seems to us that a complete answer to all of the attacks made upon this act is to be found in article 7, section 6, paragraph 1 of the Constitution of 1945 (Code, Ann., § 2-5901), which provides: “(a) . . any . . municipality or county of this State may contract for any period not exceeding fifty years, with each other . . for the use by such subdivisions or the residents thereof of any facilities or services of the . . municipality [or] county . . provided such contracts shall deal with such activities and transactions as such subdivisions are by law authorized to undertake.” Subparagraph (b) is as follows: “Any city, town, municipality or county of this State is empowered, in connection with any contracts authorized, by the preceding paragraph, to convey to any public agency, public corporation or authority now or hereafter created, existing facilities operated by such city, town, municipality or county for the benefit of residents of such subdivisions, provided the land, buildings and equipment so conveyed shall not be mortgaged or pledged to secure obligations of any such public agency, public corporation or authority and provided such facilities are to be maintained and operated by such public agency, public corporation or authority for the same purposes for which such facilities were operated by such city, town, municipality or county. Nothing in this section shall restrict the pledging of revenues of such facilities by any public agency, public corporation or authority.” Certainly both the county and the City of Atlanta
The proposed contract between the county and the city, copy of which is attached to the petition, provides that all equipment transferred by the county to the city shall be accepted and used by the city “in the performance of the terms and conditions and in furnishing the services contemplated herein,” which is the policing of the unincorporated areas of Fulton County, the same purposes for which such equipment or facilities had previously been used. This answers the contention of the plaintiffs that 40,000 residents of the City of Atlanta who reside in DeKalb County will receive the benefit of this equipment. Under the terms of the contract and the provisions of the Constitution above referred to, these facilities and this equipment are not to be used for the benefit of the City of Atlanta or its residents, but for the benefit of the unincorporated areas of Fulton County, in which the plaintiffs reside. The act here attacked and the contract which it authorizes between the county and the city are specifically authorized under the constitutional provisions above quoted, and are both in strict compliance therewith. Therefore, the plaintiffs are not being deprived of equal protection of the law or of their rights and property without due process of law in violation of the State and Federal Constitutions.
Counsel for the plaintiffs argue most strenuously that to permit such a contract between counties and municipalities has a tendency to destroy local self-government by the county and to centralize governmental powers in the city; that the law is contrary to public policy, is unwise, and contrary to the inherent and inalienable rights of the plaintiffs to have a voice in the selection of the officers who will pass upon the qualifications and employ the police officers to furnish police protection in the unincorporated areas of Fulton County in which they reside. This court in Plumb v. Christie, 103 Ga. 686, 692 (30 S. E. 759, 42 L. R. A. 181), has said: “It is idle, in a court of law created for the pur
The people of this State, the sovereign power, have spoken in the adoption of the Constitution of 1945, article 7, section 6, paragraph 1 (Code, Ann., § 2-5901), which specifically authorizes both the act here attacked and the contract which is proposed to be entered into between the County of Fulton and the City of Atlanta under the terms thereof. By that supreme law both the plaintiffs and this court are bound. Wheeler v. Board of Trustees of Fargo Consolidated School District, 200 Ga. 323 (37 S. E. 2d, 322).
What we have here held is not in conflict with the rulings of this court in Levine v. Perry, 204 Ga. 323 (49 S. E. 2d, 820). While it was there held that the County Commissioners of Glynn County could not delegate to the police commission there referred to the powers conferred upon the county commissioners to select, maintain, and operate a county police force, the police commission there involved, and to whom the powers referred to¡ were to be delegated, was not such a governmental subdivision, municipality, or public authority as is referred to in article 7, section 6, paragraph 1 (Code, Ann., § 2-5901) of the Constitution, but was a creature or agent of the county commission, and therein lies the distinction between that case and this.
The petition failed to state a cause of action, and the trial court did not err in sustaining the general demurrers thereto.
Judgment affirmed.
Concurring Opinion
concurring specially. I concur in the judgment for the reason that I am bound by former full-bench decisions of this court. It is my opinion that the classification based on population in this case, as well as the former decisions of this court on that question, are all wrong and should be overruled; but the court as now constituted is not filling to overrule the cases on this question.
Reference
- Full Case Name
- BARGE Et Al. v. CAMP Et Al.
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- 27 cases
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- Published