Mayor of Washington v. Faver , 155 Ga. 680 ( 1923 )

Hines, J.

(After stating the foregoing facts.)

The Mayor and Council of Washington have full authority and power, in their discretion, to pave and otherwise improve the streets of that city, and to assess one half of the cost thereof against the property on each side of the street so paved or improved. They are expressly authorized to do this by contract. Acts 1907, p. 967. In the exercise of this power, and in order to obtain Federal aid to the extent of one half of the cost of these improvements, which the Federal government would not advance directly to the city, but would furnish through the State Highway Department, the mayor and council passed the resolution of March 14, 1919. In pursuance of this resolution, the County of Wilkes entered into a contract with a construction company for the laying of this pavement in accordance with specifications prepared and approved by the Highway Department. Under this contract the pavement was laid. The mayor and council then levied assessments against the lands abutting on these portions of the streets so paved, and were proceeding to enforce the collection of these assessments. Plaintiffs, who were owners of abutting lots, sought to enjoin the enforcement of these assessments, on the grounds, first, that under its charter the City of Washington can only levy assessments for paving its streets when it does the work itself, or when it has it done under legal contract, the terms of which are prescribed by the common council, and the city retains the right to supervise the work and accept or reject the same for non-compliance with the terms of the agreement, the mayor and council of the city being the agents of the property owners, who have no right to pass upon the work, but are bound by the action of the city council in the premises, when acting within its charter power; and second, because the contract for the pavement of these streets was void, because the city, at the time it was made, had no funds on hand with which to pay for these improvements, and did not have authority to levy a tax within the year to pay therefor.

The Mayor and Council of Washington, being expressly authorized by its charter, in their discretion to pave its streets, have, in this respect, the power to make all- contracts which natural persons could make. 6 McQuillin Mun. Corp. 2573, § 1167. A municipal corporation, unless restricted by its charter, has power to enter into any necessary contract for the accomplishment of a corporate purpose. Pullman v. City of New York, 54 Barb. 169; 28 Cyc. 635. Being empowered to pave and to contract for paving the streets of this city, such power necessarily implies the right to do all things which may be required for the proper execution of such power. Mayor &c. of Americus v. Eldridge, 64 Ga. 524 (37 Am. R. 89). We do not think that the city council would have to make a direct contract with some one for such paving. Being authorized to make all proper contracts for this purpose, the city council can make indirect contracts for the accomplishment of this purpose. They could make a contract to do the paving, and such a contract would be valid under their general powers to contract for the pavement of the streets of that city. We see no valid reason why the City of Washington could not make an arrangement with the State Highway Department and the commissioners of Wilkes County, whereby the county could contract for doing this paving, and be paid therefor with Federal funds advanced for that purpose and out of assessments to be levied by the city under its charter power to pave its streets and levy one half of the cost against the lots of abutting owners. We do not think that this resolution and the contract between the city and county, based thereon, were void because they rest upon the delegation by the city council of their legislative authority and of their official discretion in this matter to two of the city’s couneilmen, and to the County of Wilkes. The determination to pave these streets was legislative in character. This involved official discretion. The city council could not delegate this power and this discretion to two of its members or to the county; but when the city council had decided to pave these streets, then they could delegate the making and the execution of any necessary agreement for this paving to a committee composed of couneilmen.' The making of the contract for the paving was a ministerial act which a committee of council could be empowered to perform. 1 Page & Jones Taxation, 754, § 494; 1 McQuillin Mun. Corp. 852, § 387. Furthermore it is not expressly alleged that the city did not approve the character of pavement and all the terms and stipulations embraced in the contract between the city and the county for the 'paving of these streets, and that the city did not supervise the construction of these pavements.

Again, it is urgently pressed that the contract between the county and the contractor to do this pavement is ultra vires so far as the county is concerned; and in consequence of this fact, it is illegal and can not be the basis of assessments against lots abutting on these streets. This court has held, that, if a contract for the construction of a public improvement is let, and an assessment is levied to pay the contract price, the validity of such contract is essential to the validity of the assessment (Sanders v. Gainesville, 141 Ga. 441, 81 S. E. 215); but we do not think that the contract between the county and the contractor for the laying of this paving was ultra vires, and for this reason void. Under the. broad powers conferred‘upon the State Highway Department and the county commissioners, under the act (Acts 1919, p. 242) creating that department, that department, the county commissioners and the city were authorized to enter into the arrangement by which the county was to pave these streets, which were links in interconnecting county-seat roads, and by which the city was to pay the county with money furnished by the Federal government, and raised by assessments upon lots abutting on these streets. Under this act the State Highway -Department, in co-operation with the county commissioners, can build these State-aid roads through the City of Washington. Lee County v. Smithville, 154 Ga. 550 (115 S. E. 107). It follows that these authorities can join with the city in improving and paving its streets, which form links in these roads, to secure the same end, when by so doing the city procures the paving of its streets, secures half of the cost of such improvements from the general government, thus lifts half of the burden of such paving from the shoulders of the municipal taxpayers, and at the same time the county is at no expense. Such tripartite arrangement between the State Highway Department, the county, and the city is not illegal and void because the county acts ultra vires in making the contract with another to do such paving.

It is urged that the contract between the city and the county is illegal and void, because at the time the mayor and council undertook to create the debt -for the construction of this paving the city did not have in its treasury any funds with which to pay for this work, and did not have any authority to levy within the year a tax with which to discharge this obligation. When the city had made arrangements to get from the general government, through the county commissioners and the State Highway Department, one half of the cost of this paving, and had passed a resolution, pledging the funds to be raised from assessments against the property abutting on the streets to be paved, to the payment of the other half of the costs of such improvement, and therein agreeing to pay any difference between half of such costs and the total of such funds realized from such assessments, this arrangement did not amount to the creation of a debt in violation of art. 7, sec. 7, par. 1, of the constitution of this State. Civil Code (1910), § 6563; Monk v. Moultrie, 145 Ga. 843 (90 S. E. 71); City of Waycross v. Tomberlin, 146 Ga. 504 (91 S. E. 560); Almand v. Pate, 143 Ga. 711 (85 S. E. 909). An obligation for paving streets, payable when the work is done, is a current expense, and a liability therefor is not the creation of a debt within the meaning of the above provision of the constitution; provided, at the time of incurring such liability, the city had in its treasury a sufficient sum which could be lawfully applied to the payment of such liability, or if a sufficient sum to discharge the liability could be raised by taxation during the current year. City of Dawson v. Waterworks Co., 106 Ga. 696 (32 S. E. 907); Tate v. Elberton, 136 Ga. 301 (71 S. E. 420); City of Waycross v. Tomberlin, supra, The same principle is likewise applicable when the money to pay such liability has been provided for by the lawful assessment of property by the city to pay the costs of paving streets before the liability was incurred. Almand v. Pate, Monk v. Moultrie, Waycross v. Tomberlin, supra. There is an allegation in the petition that the city did not have authority to levy a tax during the year for this purpose, but ho facts are stated and no reasons given to support this allegation; and the same is a mere conclusion of the pleader.

Applying the above rulings, the petition did not set forth a cause of action, and the court erred in not sustaining the demurrer and dismissing the action. This renders it unnecessary to consider any subsequent errors alleged to have been committed on the trial of the case. Judgment reversed.

All the Justices concur.