Heilbron v. Mayor of Cuthbert , 96 Ga. 312 ( 1895 )

Lumpkin, Justice.

1. Hnder the 9th section of the charter of the city of Cutlibert (Acts of 1859, p. 149), the mayor and council of that city have authority to “contract and be contracted with; sue and be sued; . . and . .do all things for the benefit of the city, and all things not in violation of the constitution and laws of this State.” It is apparent, therefore, that the “general welfare clause” in this charter is very broad and liberal in its terms. That the, erection and maintenance of water-works and of an electric light plant would result in benefit to the city, is obvious. It was insisted, however, that in order to authorize a municipal corporation to contract a debt for improvements of this kind, the power to do so must be expressly conferred by the charter. We do not concur in this view. In Tiedeman on Municipal Corp.; §119, it is said “that, on the ground that plenty of water is necessary to the preservation of the public health, it was held that a city, under its power to pass police ordinances and ordinances to preserve health, could contract for an ai’tesian well to be bored on its own land”; and numex-ous cases are cited in support of the text, amoxig them, Mayor & Council of Rome v. Cabot, 28 Ga. 50. The same author, in sectioix 130, says: “So, also, although, it is the subject of an expx-ess grant of power, a municipal corporation may, miderthe gexxeral welfare clause alone, coupled with the implied power inherent in all corporations to make fit axxd appropriate by-laws, and without any express legislative grant of power, establish limits within which the erection of wooden buildings shall be absolutely prohibited, and make other regulations which are deemed necessary to prevent fixes.” If the power to establish fire limits and prescribe the ehai-acter of buildings which shall be erected within the same is derivable from a “general welfare clause” in a city charter, it would seem, on principle, that the power to provide for an adequate water supply, axid for lighting the streets, squares and public buildings of a city, would in like manner result from such a clause. See the authorities cited in a note to the section from which the above quotation is made. Nut independently of what may be regarded as the rule upon this subject prevailing elsewhex-e, we think the question in hand has been definitely settled in this State by decisioxxs of this court. The case of Mayor & Council of Rome v. Cabot, supra, is directly in point as to contracts for the construction of waterworks; and the principle upon which the case rests is certainly broad enough to embrace contracts for the erection of light plants. This case is cited approvingly in Wells et al. v. Mayor & Council of Atlanta et al., 43 Ga. 76, and in Adams et al. v. Mayor & Council of Rome, 59 Ga. 768. See, also, Ford v. Thralkill et al., 84 Ga. 169, which was a “lire limit” case.

2. Section 508(i) of the code does not require the publication of the ordinance or resolution adopted by a municipal corporation, authorizing the mayor to order an election upon the question of issuing bonds for the purpose of making public improvements within the city; but does provide that notice of such election shall be given by publication. If the notice required by this section is duly given, no other or further publication is requisite. In the present ease, the notice published was, so far as relates to any objection to it with which we are called upon to deal, sufficient.

3. It was insisted in the argument for the plaintiffs in error, that the published notice of the election to he held in Cuthbert for the purpose stated, specified a larger amount of bonds than the municipal authorities could constitutionally issue in any event. Be this as it may, the petition for injunction presented no such objection as this to the legality of the notice; and therefore, even if the proposed issue of bonds as stated in the notice would have been greater than the constitution authorizes, the trial judge was not, for this reason, necessarily constrained to grant an injunction restraining the issue of bonds to a lesser amount and undoubtedly within the constitutional limit. If the point insisted upon here was meritorious, it ought to have been made in the petition presented to the trial judge.

4. No reason now occurs to us, nor was any stated, why it would be unlawful to make the proposed bonds “payable in gold, or lawful money of the United States, at the option of the holder.”

5. The act of August 24th, 1872 (Acts of 1872, p. 186), by its title professes to be an act to require the registration of the voters of the-city of Cuthbert “sixty days before the annual municipal election.” In the first section of the act, it is declared that “the voters who may desire to 'vote at the annual municipal election, and at any other election ordered by the council of the city of Cuthbert, . . shall, before they shall be entitled to vote at said election, have registered their names with the city clerk at least sixty days before the day on which the said municipal election is held.” In the third section, the act provides that “after the registration pro-' vided for in the -first section of this act, the person so registering shall be entitled to vote at any election that may be ordered during the current year by the mayor and council of said city.” In so far as the body of the act deals with any election other than the annual municipal election, it seems to cover matter not embraced within its title; but it is perfectly immaterial whether the provisions of the act with reference to elections other than the annual municipal election are valid or not. If they are valid, one who registered for the annual election would, by the express terms of the act, be entitled without further registration to vote at an election upon the question of issuing bonds. If the provisions referred to are invalid, then there is nothing in the act requiring a special registration to be had for an election relating to bonds.

No valid reason is stated in the petition for injunction, or appears in the agreed statement of facts, for enjoining the mayor and council from issuing the proposed bonds to the amount specified in the judge’s order.

Judgment affirmed.