Opinion
19148.
ARGUED NOVEMBER 14, 1955.
DECIDED JANUARY 10, 1956.
Petition for injunction. Before Judge Boykin. Meriwether Superior Court. August 29, 1955.
Geo. C. Kennedy, for plaintiff in error.
W. S. Allen, contra.
1. "The fixing of water rates, from time to time, by a municipality, is a legislative or governmental power, and one council may not, by contract or ordinance, deprive succeeding councils of this legislative or governmental power. Code § 69-202; Horkan v. Moultrie, 136 Ga. 561, 563 ( 71 S.E. 785); Screws v. Atlanta, 189 Ga. 839, 843 ( 8 S.E.2d 16); Barr v. City Council of Augusta [ 206 Ga. 750 (2), 58 S.E.2d 208]." Barr v. City Council of Augusta, 206 Ga. 753 ( 58 S.E.2d 823).
2. "Where one enters with a municipal corporation into a contract which is void because opposed to the constitution and laws of this State and contrary to its settled public policy, complete performance of such contract on the part of such person will not prevent the municipal corporation from pleading its want of power or the illegality of the contract." City Council of Dawson v. Dawson Water Works Co., 106 Ga. 696, 697 ( 32 S.E. 907). See also Covington Macon R. Co. v. Mayor c. of Athens, 85 Ga. 367 ( 11 S.E. 663); City of Hogansville v. Farrell Heating c. Co., 161 Ga. 780, 792 ( 132 S.E. 436); Anchor Duck Mills v. Maddox, 171 Ga. 495, 496 ( 156 S.E. 192); Barwick v. Roberts, 188 Ga. 655, 659 ( 4 S.E.2d 664).
3. In Hall v. Mayor c. of Calhoun, 140 Ga. 611 ( 79 S.E. 533), relied upon by the defendant in error, it was said that the Hall case was not in point on its facts with Horkan v. City of Moultrie, 136 Ga. 561 ( 71 S.E. 785), and similar cases. The Hall case is clearly distinguishable on its facts from the present case; but if in point, it would have to yield to older, full-bench decisions of this court.
4. The court erred in overruling the general demurrers to the petition.
Judgment reversed. All the Justices concur.
ARGUED NOVEMBER 14, 1955 — DECIDED JANUARY 10, 1956.
Fulton G. Bulloch filed a petition for equitable relief against the City of Warm Springs. It was alleged: On November 5, 1935, the City of Warm Springs entered into a 99-year lease with the petitioner, a copy of the lease being attached and marked Exhibit "A." Pursuant to the lease, the city went into possession of the petitioner's spring and has since remained in possession; has taken water therefrom and is now taking water; and for the past twenty years the city has furnished the petitioner water in accordance with the terms of the lease. The city has repudiated the contract and is threatening to cut off the petitioner's supply of water at his home. The petitioner has no adequate remedy at law.
The prayers were that the city be enjoined and restrained from cutting off the petitioner's supply of water, and from repudiating the contract, and for other relief.
The lease agreement attached as an exhibit, which appears to have been executed by the petitioner in the State of Illinois, provides "that the said party of the first part for and in consideration of free water for personal use to be furnished by the Warm Springs Municipal Water Works System . . . has granted, bargained, demised and leased . . . to the Mayor and Council of the City of Warm Springs, their successors and assigns, for a period of 99 years," the petitioner's interest "in and to the flow of what is known as Cold Springs in the Second District of Meriwether County."
The city's general demurrers to the petition were overruled, and the exception is to that judgment.