Opinion
34424.
DECIDED FEBRUARY 28, 1953.
Declaratory judgment; from Muscogee Superior Court — Judge Fort. October 22, 1952.
W. Stanford Willis, for plaintiff in error.
Wm. DeL. Worsley, Albert W. Stubbs, contra.
1. A municipal corporation is without authority to waive its immunity from liability for damages arising out of the exercise of governmental functions. The judgment so holding is affirmed.
2. The court was without authority to render an advisory opinion on a municipality's right to procure liability insurance to protect the public in case of damages inflicted in the exercise of governmental functions.
DECIDED FEBRUARY 28, 1953.
City of Columbus instituted in Muscogee Superior Court an action for a declaratory judgment against E. V. Boone. The petition alleges: that an employee of the city damaged the defendant's automobile by the negligent operation of a truck while engaged in collecting trash and garbage; that the defendant has served the city with statutory notice of his claim for damages, and that the members of the commission of the City of Columbus believe that the city should pay the damages by reason of the fact that the negligence of the city's employee was the sole proximate cause of the defendant's damages; that the members of the commission of the city desire to waive the city's immunity from liability and pay the defendant's claim, which the defendant contends can and should be done; that, in addition to the aforesaid existing controversy, there also exist numerous other actual controversies between the City of Columbus and various individuals who contend that the city should pay them for similar damages; that, because of such claims, the members of the commission propose to secure policies of liability insurance to afford protection from future injuries caused by the performance of governmental functions. The prayer was for declaration of the city's rights, authorities, powers, liabilities and responsibilities in the premises. The court found on stipulated facts, as to which there is no dispute, that the employee of the city was engaged in a governmental function, that the City of Columbus was not legally liable for the acts of the employee, whether he was negligent or not, and that the immunity of the city could not be waived. The court further found that the city had no legal right or authority to procure or pay for policies of liability insurance to cover the city's activities in the discharge of governmental functions. The defendant excepted to this judgment.
1. In Georgia a municipal corporation is not liable in damages for injuries arising from the exercise of a governmental function. Code, § 69-301. The collection and transportation of garbage by a city employee is a governmental function. Love v. City of Atlanta, 95 Ga. 129 ( 22 S.E. 29); City of Brunswick v. Volpian, 67 Ga. App. 654 ( 21 S.E.2d 442); Mayor c. of Savannah v. Jordan, 149 Ga. 139 (2) ( 99 S.E. 294); Mayor c. of Savannah v. Jordan, 142 Ga. 409 ( 83 S.E. 109). This proposition is so well settled, regardless of some rather strong opposition to such a rule of law, that citation of authority is in fact superfluous. No nuisance is involved. This rule is not disputed in this case, but it is insisted that the city commissioners can and should waive the immunity and pay the claim. We think this question also has been settled by the cases which hold that a municipality cannot ratify the unlawful acts of its subordinate officials done in pursuance of its governmental functions so as to make itself liable for such acts. Davis v. City of Rome, 23 Ga. App. 188 (3) ( 98 S.E. 231); Brown v. City of Union Point, 52 Ga. App. 212 (1) ( 183 S.E. 78). See also 63 C.J.S., Municipal Corporations, 56, § 763. Ratification is the same in principle with respect to the question under discussion as waiver of immunity. The fundamental reason (in addition to the constitutional prohibition, Code, Ann., § 2-5402) prohibiting either is that there is no provision of law for raising the funds with which to pay a claim not authorized or recognized by law. It stands to reason that a municipal corporation cannot make an illegal act legal by a simple act of waiver. In so doing it would be encroaching on the powers of the State, of which it is only a creature. Foreign authorities are to the same effect. 38 Am. Jur., Mun. Corp., 89, § 398; Tompkins v. Williams, (Tex.) 62 S.W.2d 70; Caudill v. Pinsion, 233 Ky. 12 ( 24 S.W.2d 938); Mollnow v. Rafter, 89 Misc. 495 ( 152 N. Y. Supp. 110, 89 A.L.R. 398).
2. There is no justiciable controversy alleged or passed upon insofar as the city's right to procure liability insurance is concerned. There are no issues and no parties. The prayers in this respect are no more than prayers for an advisory opinion, which the trial court was without authority to render.
The judgment of the trial court is affirmed as to its opinion regarding the city's waiver of immunity; it is reversed as to the ruling on the right of the city to procure liability insurance, for the sole reason that, under the pleadings and evidence, it was without jurisdiction to render a judgment on that question.
Judgment reversed in part and affirmed in part, as shown in the opinion. Sutton, C. J., and Worrill, J., concur.