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Injunction. Carroll Superior Court. Before Judge Boykin. June 12, 1959.
HEAD, Justice.
James Walker, J. E. McWhorter, Mrs. Ruth B. Kramer, R. T. Rowe, Frank Rose, E. R. McGee, and Horace Stewart, Sr., filed their petition for equitable relief against the State Highway Department of Georgia, the City of Carrollton, and its Mayor and Councilmen, seeking to enjoin the condemnation for highway purposes of described property of the petitioners, J. E. McWhorter and Mrs. Ruth B. Kramer. A temporary restraining order was granted. After notice and a hearing, the general demurrers of the defendants were overruled, and the exception is to that judgment. The bill of exceptions recites that, on the same date when the general demurrers were overruled, the petitioners, R. T. Rowe, Frank Rose, E. R. McGee, and Horace Stewart, Sr., were stricken as parties plaintiff.
As related to the State Highway Department of Georgia, the petition as amended alleged: On May 12, and May 14, 1959, the State Highway Department of Georgia filed its petitions in Carroll Superior Court, seeking to condemn described property of J. E. McWhorter and Mrs. Ruth B. Kramer, which petitions are now pending, and reference is made thereto, with the usual leave of reference prayed as often gas may be necessary. There has been no ascertainment of necessity for condemnation by the highway department or effort to obtain "the right of way necessary." The highway department should be enjoined from making further contracts until "the factual fact of physical necessity has been determined" according to law. The proposed taking of property "is not of public necessity and a court of equity is the only court in which the question of public necessity can be raised under condemnation proceedings." The defendants have not entered into possession of the property and have not undertaken any construction thereon but, upon information and belief, the petitioners allege that the defendants will begin grading the property within the next few days unless enjoined. The property sought to be condemned "is not necessary for State or for municipal purposes." There are no homes or business property along the proposed route in the vicinity of the lands sought to be condemned that are not now adequately provided with public streets and highways in the City of Carrollton. There "is no need nor public necessity at any time existing for said condemnation of homes and property of citizens of Carrollton, there being ample and sufficient streets and highways now existing in the City of Carrollton." The "proposed route along U. S. Highway 27 through the City of Carrollton would be a tremendous expense, wholly unnecessary and not of a public necessity." The petitioners are informed that another route heretofore laid out along U. S. Highway 27 would by-pass Carrollton, and would be a sufficient route and less expensive than the one route proposed through the city. "For all of the aforesaid reasons, said condemnation is proceeding illegally, unlawfully, and contrary to the laws and Constitution of the State of Georgia," and "the said awards of the Special Master would be illegal, unlawful, invalid, totally null and void, in that there has been no bona fide effort made to buy said property or to set a true valuation" thereon. To acquire the proposed rights of way along U. S. Highway 27 through the city, "would be at a great expense, injury, and damage to property of petitioners herein and cost of taxpayers whereas the State Highway Department of Georgia is now expending thousands of dollars to take highways out of cities in the State of Georgia, by-passing cities, in the interest of through traffic . . .; that it would be a useless expenditure of funds to undertake to go through the City of Carrollton when the purpose desired is easily obtainable through another route, with much less expense, and without injury to property owners in the City of Carrollton, and admittedly would be obsolete in three years."
As related to the City of Carrollton, the petition alleged: "There has been no finding, determination, nor ascertainment by the City of Carrollton, nor by its Mayor and Council, that the said described lands is necessary for street purposes, or other municipal purposes, and without such finding, determination, or ascertainment said condemnation proceedings are unauthorized and premature." The city is violating the Constitution by taking money from the municipal treasury and buying rights of way. Under arrangements with the State Highway Department of Georgia, the city is paying for rights of way, having heretofore paid $87,838.25 to purchase rights of way, by borrowing money illegally and contrary to the direct provisions of the Constitution and State laws. Municipal officers have no right to contract debts except as provided under the Constitution, which provides that no debt shall exceed 7% of the assessed value of taxable property, except for temporary loans to supply casual deficiencies in revenue. On information and belief the petitioners aver that the City of Carrollton is paying 5% of the total acquisition cost of rights of way along U. S. Highway 27 through the city, which is wholly unnecessary and not of public necessity. The money is paid out of general tax funds collected for general purposes. A levy of 17 mills made on September 16, 1958, was for the following purposes: 2 1/2 mills for bonds and interest; 6 1/2 mills far general operation funds; and 8 mills for school purposes. The diverting of these funds for the purpose of paying for rights of way is contrary to law, without the assent of the qualified voters of the city. The mayor and councilmen of the city are individually liable for funds diverted and paid out, in the sum of $4,391.91, for which the petitioners pray an individual judgment against the mayor and councilmen, and that they be required to repay these funds into the general funds of the city The city has levied taxes up to the legal limit of its charter for general purposes, the limitation having been exceeded without the consent of the registered voters by levying a sanitation and sewage tax at 75 per month, which tax is illegal and contrary to law. The city is now indebted for borrowed money of about $80,000, which is being used to acquire rights of way, thereby creating a debt against the city without the assent of the citizens in the manner provided by law. The property sought to be condemned is not necessary for State or municipal purposes. The proposed route "will be of great and unnecessary expense," and the city "is unable to pay said expense as required under the contract." There is no authority in law for the mayor and council to use general tax funds for such purpose. It is not for the best interest of the city that the property sought. to be condemned be taken. The city,
through its mayor and councilmen is "illegally, and in bad faith, contrary to the laws of the State of Georgia, exceeding its power" by diversion of funds for payment of rights of way, ". . . under the pretext of necessity, solely for the private benefit and use of a few property owners." The awards of the special master would be illegal, unlawful, invalid, and totally null and void. The taxpayers of the city have no adequate remedy at law. Under the condemnation statutes and rules of practice, condemnees can not by any other proceedings raise questions as to lack of public necessity, absence of negotiations, and other irregularities of the condemnation proceedings. The city will continue to expend tax money legally levied for other purposes, unless enjoined from so doing, and will continue to borrow money and increase its indebtedness contrary to the Constitution, without the consent of the qualified voters. The payments for rights of way are being made under an invalid ordinance of the city, and this ordinance should be decreed to be null and void, and of no force and effect; and the mayor and councilmen should be enjoined from paying funds of taxpayers for the purpose of acquiring rights of way, without the assent of the qualified voters, as required by law. The continuous diversion of tax money will increase the tax burden of taxpayers. The city has already increased its taxes beyond the limits prescribed by the Constitution.
1. "The allegations of a pleading are to be construed most strongly against the pleader, when attacked by demurrer." Lee v. City of Atlanta, 197 Ga. 518, 520 (29 S. E. 2d 774); East Ga. Motor Club v. A.A.A. Finance Co., 212 Ga. 408, 410 (93 S. E. 2d 337). Allegations of the petition to the effect that "the proposed taking of said property is not of public necessity," and "is not necessary for State or for municipal purposes"; "there is no need nor public necessity at any time" for the condemnation of homes and property of citizens of Carrollton; and that the proposed route through the city is "wholly unnecessary and not of a public necessity;" amount to nothing more than mere conclusions of the pleader, wholly unsupported by any fact or facts to show an arbitrary abuse of the discretion vested by law in the State Highway Department. "General and loose allegations, consisting merely of the statement of conclusions, without averring the facts upon which the conclusions are based, are too indefinite to raise an issue." Jones v. Ezell, 134 Ga. 553 (5) (68 S. E. 303); Harper v. Lindsey, 162 Ga. 44, 47 (132 S. E. 639); Butler v. City of Dublin, 191 Ga. 551, 555 (13 S. E. 2d 362); Marlin v. Hill, 192 Ga. 434 (15 S. E. 2d 473); Fowler v. Southern Airlines, 192 Ga. 845, 850 (16 S. E. 2d 897).
Counsel for the defendants in error cite, quote from, and strongly rely upon Williams v. City of LaGrange, 213 Ga. 241 (98 S. E. 2d 617). Counsel quote the first sentence of headnote 2 in the Williams case, which is a quotation from the dissenting opinion of Mr. Justice Hawkins in Georgia Power Co. v. Fountain, 207 Ga. 361 (61 S. E. 2d 454), at page 372. Counsel then state: "That is the Rock of Gibraltar upon which we stand and upon which this case is built. If the plan of salvation as outlined stated by this court in the Williams case is not correct, then the citizens of Georgia are helpless to argue the question of public necessity at any point." Counsel for the defendants in error apparently fail to note the inapplicability of the ruling in the Williams case to the facts of the present case, that ruling being limited by its terms to those instances where the condemnation proceeding is brought under Chapter 36-3 of the Code. The sole power of the assessors provided by Chapter 36-3 relates to the value of the property taken and to no other question.
No copy of the petitions for condemnation alleged to have been filed by the State Highway Department is attached to the pleadings in the present case. From the allegations of the petition, however, and the briefs of counsel, it appears that the condemnation proceedings were instituted under the act of 1957 (Ga. L. 1957, pp. 387-397; Code, Ann., Chapter 36-6A). This act provides that, "by reason of the necessities of the public needs, of which the condemning body shall be the exclusive judge," a petition may be filed setting forth the facts showing the right to condemn and other facts, as therein provided; and, thereupon, that the judge shall make an order requiring all persons concerned to appear and make known their rights or interest, and claims as to the value of the property, "and any other matters material to their respective rights." From the 1957 act it is clear that the General Assembly intended to vest a very broad discretion in the condemning authority as to the necessity for the taking, and that "other matters material" to the rights of condemnees generally might be determined under proper pleadings in the pending case. Compare Martin v. Fulton County, 213 Ga. 761 (101 S. E. 2d 716).
Independently of any Federal law or requirement, the conclusions of the present petition are insufficient to show any abuse of the discretion vested by law in the State Highway Department of Georgia. "A court of equity will not interfere with the discretionary action of the State Highway Department in locating, grading, and improving a proposed State-aid highway, within the sphere of their legally designated powers, unless such action is arbitrary and amounts to an abuse of discretion." Crump v. State Highway Dept., 191 Ga. 130 (12 S. E. 2d 310), and cases cited. See also Miller v. State Highway Dept., 200 Ga. 485 (37 S. E. 2d 365); Elberton Southern Ry. Co. v. State Highway Dept., 211 Ga. 838 (89 S. E. 2d 645).
2. In their brief filed on behalf of the defendants in error, counsel urge that the City of Carrollton is not authorized by law to condemn property for public streets or highways. The petition 'alleges that the condemnation proceedings were brought by the State HighWay Board of Georgia, and there is no allegation that the city is in any way a party plaintiff or defendant in any condemnation proceedings. Thus, whether or not the city has the right to condemn private property for public uses is not germane to the condemnation proceedings filed by the State Highway Department.
It is alleged that the city has paid out $87,838.25 "contrary to the direct provisions of the Constitution and State laws to pay for said rights of way." The petition further alleges that the city is paying 5% of the total acquisition costs, and seeks. to recover for the benefit of the city $4,391.91. While it is alleged that the city can levy only 61/2 mills for general funds, there are no facts alleged to show that the amount of $4,391.91 would not be derived from general funds within the year in which the money was being expended; and, under the authority of the city to borrow money to meet temporary deficiencies in revenue, loans not in excess of the amount of anticipated revenue within the year are not unlawful. No facts are alleged to show the inability of the city to repay all funds borrowed by it within the taxable year.
The authority of the City of Carrollton under its charter (Ga. L. 1891, p. 474) to build and repair streets within its incorporate limits does not require actual supervision by the mayor and council, but this may be done by contract with the State Highway Department of Georgia, under the provisions of the Constitution of 1945, Art. VII, Sec. VI, Par. I (Code, Ann., 2-5901). The State Highway Department may construct a public highway through a municipality or city of this State without its consent. Lee County v. Mayor &c. of Smithville, 154 Ga. 550 (115 S. E. 107); Patterson v. State Highway Dept., 201 Ga. 860 (41 S. E. 2d 260). Whether or not it is the better business and governmental policy for a city to participate in the selection of the route for a highway through the city, the procuring of rights of way, and the cost thereof, by contract with the State Highway Department, is a question for determination by the mayor and council of the city in the first instance, and is not such a question wherein a court of equity is authorized to substitute its judgment and discretion for that of the duly elected officials of the city.
Stripped of its conclusions, no facts are alleged in the petition to show any unlawful acts on the part of the mayor and council of the city, any unlawful diversion of funds, or unauthorized participation in a contract resulting in a new street or thoroughfare through the city, whereby the petitioners are entitled to any relief in a court of equity.
Judgment reversed. All the Justices concur.
Henry C. Head, Shirley C. Boykin, Wm. P. Johnson, W. H. Stanford, Jr., Gilbert & Head, contra.
Robt. D. Tisinger, Lamar Knight, Eugene Cook, Attorney-General, Paul Miller, E. J. Summerour, Assistant Attorneys-General, for plaintiff in error.
Saturday May 23 00:35 EDT

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