Wells v. Mayor of Atlanta , 43 Ga. 67 ( 1871 )

McCay, Judge.

1. That the municipal corporation known as the city of Atlanta had authority, under its charter, even before the Act of 1870 was passed, to provide for the introduction of water in the city, and therefore to make contracts for the purpose, seems very clear. This Court has, in effect, so held in the case of Mayor and Council of Rome vs. Cabut, 28 Georgia Reports, 50. The real point in dispute is, which of the city’s agents, the Mayor and Council or the Water Board, was, by law, clothed with the right to exercise this chartered power of the corporation in December, 1870? Before the passage of the Act of September, 1870, whatever power over the subject existed was undoubtedly in the Mayor and Council, since that body was the general executor of the powers of the corporation. The Act of September, 1870, giving additional powers to the city over the subject of water-works, expressly says that until the regular election for the Water Board, the powers granted by the Act may be exercised by the Mayor and Council. See section 22 of the Act. The state of the case at last is this: The right, the franchise, the power to erect water-works, is in the city until the regular election for the Water Board. Every act connected with the exercise of the franchise, was to be done by the Mayor and Council, or by their authority. After that election, after the Water Board came into existence, many of the powers and duties of the May- or and Council went over to the Water Board. That board became the successors in office of the Mayor and Council in these respects — the new agents, by and through whom the corporation exercised the chartered rights granted to it by the charter. The right is now and has ever been in the city. The Mayor and Council and the Water Board are the mere agents by which the city exercises its powers.

At what point of time, then, does the power of the new agents begin? On the day of the election? On the day after? Or when, according to the charter, they are sworn into office, and enter upon the discharge of their official duties? It seems to us very clear 'that their powers do not begin until they are “qualified.” Such is the usual practice of the State as to other offices. It is very common to hold the election several months before the time provided by law for the person elect to enter upon his duties. In this State, it is the settled rule that the old officer continues to perform the duties of the office until the successor is qualified. This is the provision of the Constitution as to the office of Governor, and as to all other offices. The Code, section 123, makes the same provision. It cannot be known until the new officer is “ qualified ” that he will ever enter upon his duties, and until then all the duties of the office, of every kind devolve upon the incumbent.

The duties of this Water Board are duties coming to them as the successors of the Mayor and Council, and the Mayor and Council may and must perform all the duties cast upon them by law, until their successors are, not only elected, but qualified. As we have said, the right, the franchise, is in the city, in the corporation. The Mayor and Council or the Water Board are but city agents. The Act expressly directs that the Mayor and Council shall exercise all the powers granted by the Act until the election of the board. We do not think it was intended there should be an hiatus in the powers granted in the charter, that from the day of the election until the time when, under the charter, the board was to qualify, the power- of the city over the question of waterworks was to be in abeyance.

It seems to us clear, that nothing was intended by the Act of 1870 but to confer new powers upon the eity, and to clothe the Mayor and Council with authority to exercise it until the Water Board entered upon the discharge of its duties. Until that time the whole power over the matter was in the Mayor and Council; they might contract for, erect and manage the water-works just as the Water Board might do after-wards. Indeed, as to the contract, the initiatory step, there would seem to have been no other motive in clothing the Mayor and Council with all the powers of the Water Board until the election, than to authorize it to make the contract.

The Mayor and Council is the general representative of the people. Ordinarily the whole powers of the corporation are exercised by it, and there was propriety in putting this, the first step, in their hands. The Water Board is, as the whole Act of 1870 shows, a mere subordinate agency intended rather to relieve the Mayor and Council than to rival it; and even after the board is elected and qualified, it will be far more in harmony with the scope of the charter, and not at all in violation of the Act of 1870, for the board to act in harmony with and in deference to the Mayor and Council. Upon the whole, we think the Mayor and Council had power to make this contract.

2. We see nothing in the loose charges made of fraud and corruption. They are entirely too vague to justify any serious consideration by a Court. Whether the contract be a wise one or not, whether the city needs water-works, and what plan is most in harmony with the city wants and with economy, are matters exclusively within the cognizance of the body clothed by the charter with the exercise of the powers of the city. It would be an improper interference by the Courts with the rights of the city, for them to undertake to judge of the expediency of this contract. If its provisions were so shockingly outrageous as to furnish a strong presumption of fraud, that might be an element for consideration, but it would only be proper as a proof of fraud, in connection with other proofs for the Courts to inquire at all into the propriety of the contract.

Judgment affirmed.