Town of Decatur v. DeKalb County , 130 Ga. 483 ( 1908 )

Atkinson, J.

We do not think there was any error in granting this order. Under the Political Code, §340, a county is a body corporate and may sue and be sued, but its functions are governmental, and it has no power except as conferred by statute. Dent v. Cook, 45 Ga. 326 ; Millwood v. DeKalb County, 106 Ga. 745 (32 S. E. 577). Its affairs are administered by public officers, and they have no powers except such as are conferred by statute. Political Code, §268; City Council of Augusta v. Sweeney, 44 Ga. 463 (9 Am. R. 172) ; Penitentiary Co. v. Gordon, 85 Ga. 159, 171 (11 S. E. 584). The affairs of the County of DeKalb were administered by commissioners, with powers as prescribed in the act of 1902 (Acts 1902, pp. 207-210), until January 1, 1907, when they were committed to one commissioner, as prescribed in the act of 1906 (Acts 1906, p. 405), which latter act repealed the act of 1902, supra. Eeferring to the powers of the commissioners selected under the provisions of the act of 1902 (Acts 1902, pp. 207-2Í0), section 5 of that act-provides, that “said commissioners shall have exclusive jurisdiction and control over the following matters, to wit: In directing and controlling all the property of the county as they may deem expedient, according to law; . . . and to have and to exercise all the powers heretofore vested' in the ordinary of said county when sitting for county purposes, and to exercise such other powers as are granted' by law or as are indispensable to their jurisdiction over county matters and county finances.” There was nothing else in the act, or in any amendment thereto, tending to confer upon such commissioners power to dispose of or lease county property. Under the provisions of the act, the commissioners were vested with “all the powers heretofore vested in the ordinary of said county when sitting for county purposes.” This would authorize the disposition of county property to the same extent and in the same manner as the ordinary might formerly have disposed of the same; but aside from this, the commissioners were not given any power of disposition. Section 348 of the Political Code provides: “The ordinary has control of all property belonging to the county, and may by order to be entered on their minutes direct the disposal of any real property which can lawfully be disposed of, and appoint a commission to make the titles thereto, and the conveyance of such commission in accordance with such order vests the grantee or vendee with the title of the county.” The ordinary, under this law, was not at liberty to sell any and all county property; he could sell only such as could “lawfully be disposed of.” The only provision of law which authorizes the ordinary to sell property of the county is found in section 278 of the Political Code, where it is provided: “When any public property shall become unserviceable, it may be sold or otherwise disposed of, by order of the proper authorities, and an entry of the same shall be made in said book, and the money received therefrom shall be paid into the treasury.” Under this section of the code, the only property which the ordinary could lawfully sell was property which had become unserviceable. The act creating the board of commissioners of roads and revenues for the County of DeKalb must be construed in connection with the Political Code, §§348, 278. It follows that the commissioners, having no greater power than the ordinary, could not sell county property, unless it should have become unserviceable to the county. In the case under consideration, it did not appear that the property was unserviceable. On the contrary, it appeared, from the evidence, that it was in use by the county as part of the public' grounds upon which the court-house was located. The point is made, in the'brief of counsel for plaintiff in error, that the contract referred to amounted to a mere lease, and not a conveyance of title. It did not purport to convey the fee-simple title, but it was an attempt to make such a “disposition” of county property as to become inconsistent with’ the county’s exclusive use thereof for a period of 99 j^ears, a term much longer than the tenure of office of the officials charged with the administration of the- affairs' of the county. There was no statute authorizing such a long lease, and no authority to lease for a long term can be implied. The property continues to be public property, and the attempt is to engage the county in a commercial transaction and deprive succeeding county officials of the exclusive use of the property for county purposes for the period of 99 years. It is not within the scope of legislative intent that county officials may so involve the public propertjn See, in this connection, Hunnicutt v. Atlanta, 104 Ga. 1 (30 S. E. 500) ; State ex rel. Scott v. Hart, 144 Ind. 107 (43 N. E. 7, 33 L. R. A. 118, and note).

Judgment affirmed.

All the Justices concur.