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JOHNSON v. CITY OF ALMA et al.; and vice versa.
23487.
23488.
Injunction. Bacon Superior Court. Before Judge Hodges.
MOBLEY, Justice.
1. As to petitioner, a resident and property owner in the City of Alma, the charter of the City of Alma of 1963 (Ga. L. 1963, pp. 3555-3602) is unconstitutional, null, and void, since a previous final judgment by the Superior Court of Bacon County holding said charter unconstitutional and void is binding upon all residents and property owners in the city; and the city is not required to comply with the 1963 charter in granting a franchise for the installation of natural gas lines to defendant, Atlanta Gas Light Company.
2. The petition fails to show any violation of the Constitution of Georgia or of the United States as a ground for the injunctive relief prayed for, since the pleading is not sufficient to raise such constitutional question; nor does the franchise exempt defendant, Atlanta Gas Light Company, from the payment of any taxes as alleged.
3. For the reasons set out in Divisions 1 and 2, the trial judge did not abuse his discretion in denying the temporary injunction.
4. The trial judge properly overruled the general demurrer to the petition as it states a cause of action to enjoin defendants from carrying out the franchise agreement.
After a hearing on the rule nisi order as to whether defendants should be temporarily enjoined, the trial judge, proceeding on the theory that the 1963 charter of the City of Alma (Ga. L. 1963, pp. 3555-3602), imposing the requirements allegedly violated by defendants, was null and void and of no effect, since it had been ruled unconstitutional in a previous suit in this court, and that the 1906 charter, as amended, was operative and in effect, denied the temporary injunction. Petitioner appeals from the above rulings and from the order sustaining the special demurrer to the petition.
Defendants filed a cross appeal assigning error on the order overruling their general demurrer to the petition.
Thus, the charter of the City of Alma of 1963, as amended, is, as to petitioner, unconstitutional and invalid, and the City of Alma in granting a franchise to the Atlanta Gas Light Company is not required to comply with the provisions of that charter.
2. Paragraphs 7 and 13 of the petition purport to allege a violation of the Constitutions of the United States and Georgia by defendants in consummating the franchise agreement as ground for the injunction. It is alleged that the franchise and ordinance implementing it would exempt the Atlanta Gas Light Company from payment of a business license and tax, by providing for the deduction by the gas company from the proceeds to be paid to the City of Alma for the franchise right all amounts required for licenses and all tax.
For several reasons the ground for injunctive relief set forth by these allegations is without merit. It is apparent that the allegations are not sufficient to raise the constitutional question because they do not specify the provisions of the Constitutions allegedly violated, nor do they show how the franchise ordinance violates such provisions. Lee v. City of Atlanta, 197 Ga. 518, 522 (29 SE2d 774); City of Moultrie v. Colquitt County Rural Elec. Co., 211 Ga. 842 (2) (89 SE2d 657). Furthermore, the ordinance, which is attached to the petition, does not exempt the Atlanta Gas Light Company from the payment of taxes. It merely allows the gas company to offset against the quarterly payments to the city, provided for by the ordinance, certain license, franchise, excise, and other taxes and charges. However, it specifies that ad valorem taxes may not be set off against such payments. It would appear from its terms that if the total amount of the taxes which may be set off exceeds the franchise payments, the gas company would be required to pay the excess amount. Thus, there could never be any exemption of such taxes. The concession to the gas company for the offsetting of such taxes is merely part of the consideration for the services to be rendered by the company and is not unlawful. Sec Macon R. & Light Co. v. Mayor of Macon, 136 Ga. 797 (72 SE 159); Cartersville Improvement, Gas & Water Co. v. Mayor &c. of Cartersville, 89 Ga. 683 (2) (16 SE 25). License or occupation taxes may be commuted by a city but not taxes on property. Columbia Ave. Savings Fund &c. Co. v. City of Dawson, 130 F 152, 174 (N. D. Ga., 1903).
3. For the reasons set out in Divisions 1 and 2, the trial judge did not abuse his discretion in denying the temporary injunction.
4. As to the cross appeal of the appellees, the petition alleges the violation of the charter of the City of Alma by the defendants in entering into and attempting to execute a franchise agreement. It alleges in detail various requirements of the charter, which had not been complied with, and that the franchise agreement and ordinance are therefore ultra vires, illegal, and null and void. Petitioner, being a citizen and taxpayer of the City of Alma, has proper standing to attack the franchise on these grounds. An action in equity to enjoin the alleged acts of defendants would lie, as petitioner's remedy at law would not be adequate. The petition states a cause of action for the relief sought and the trial judge did not err in overruling defendant's general demurrer thereto.
Judgment affirmed on the main appeal and on the cross appeal. All the Justices concur.
R. E. Lawson, Hansell, Post, Brandon & Dorsey, Albert G. Norman, Jr., for appellees.
Sumner & Boatright, J. Laddie Boatright, for appellant.
ARGUED MAY 10, 1966 -- DECIDED JUNE 9, 1966.
Friday May 22 20:16 EDT


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