Barr v. City Council of Augusta

206 Ga. 750 (1950) 58 S.E.2d 820

BARR et al.
v.
CITY COUNCIL OF AUGUSTA.

17013.

Supreme Court of Georgia.

April 10, 1950.

Cumming, Nixon & Eve, for plaintiffs.

William P. Congdon, Congdon, Harper & Leonard, and Fulcher & Fulcher, for defendant.

HEAD, Justice.

1. The preservation of the public health is a governmental function. Love v. Atlanta, 95 Ga. 129, 133 (22 S.E. 29). The establishment and maintenance of a sewerage system by a municipality is for the protection of the public health, and is a governmental function. 38 Am. Jur., 334, § 633; City Council of Augusta v. Cleveland, 148 Ga. 734 (98 S.E. 345); Foster v. Savannah, 77 Ga. App. 346, 349 (48 S.E. 2d, 686).

2. A municipal corporation has no power to make contracts restricting or limiting its legislative or governmental powers. Macon Consolidated Street R. Co. v. Macon, 112 Ga. 782 (38 S.E. 60); Horkan v. Moultrie, 136 Ga. 561, 563 (71 S.E. 785); Aven v. Steiner Cancer Hospital, 189 Ga. 126, 142 (5 S.E. 2d, 356).

3. The alleged contract between the City Council of Augusta and the Commissioners of Richmond County was ultra vires and void, in that it restricted legislative and governmental powers of future councils of the city. The plaintiffs did not acquire any rights to sewerage service under the ultra vires and void contract, and the city would not be estopped from asserting the invalidity of the contract at any time. Neal v. Decatur, 142 Ga. 205 (82 S.E. 546).

4. The contention, that the ordinance, assessing a charge for the use of city sewers by non-residents of the city, was enacted through malice or spite, affords the plaintiffs no right to equitable relief. The courts will not inquire into the motives of a municipal council in the enactment of an ordinance. 37 Am. Jur., 819, § 182; Clein v. Atlanta, 164 Ga. 529, 541 (139 S.E. 46, 53 A. L. R. 933); South Georgia Power Co. v. Baumann, 169 Ga. 649, 653 (151 S.E. 513).

5. The trial court did not err in sustaining the general demurrers of the defendant.

Judgment affirmed. All the Justices concur.