Opinion
18404.
ARGUED NOVEMBER 9, 10, 1953.
DECIDED JANUARY 11, 1954. REHEARING DENIED FEBRUARY 11, 1954.
Petition for injunction. Before Judge Anderson. Richmond Superior Court. September 8, 1953.
Randall Evans, Jr., for plaintiffs in error.
Harris, Chance McCracken, Edwin D. Fulcher, Fulcher, Fulcher Hagler, contra.
The allegations of the amended petition brought by citizens and taxpayers — to the effect that the municipal authorities were unlawfully and wrongfully employing extra policemen, and expending large sums of public money to protect the property of a motor common carrier during a strike by its drivers and mechanics — were insufficient to set forth a cause of action for equitable relief, and accordingly the trial judge did not err in sustaining the general demurrers to the amended petition, and in dismissing the action.
ARGUED NOVEMBER 9, 10, 1953 — DECIDED JANUARY 11, 1954 — REHEARING DENIED FEBRUARY 11, 1954.
Lionel W. Gulledge and six other persons as citizens and taxpayers filed in Richmond Superior Court, against Augusta Coach Company, the City Council of Augusta, and the individual members of the Civil Service Commission, a petition, which as twice amended alleged substantially the following: Augusta Coach Company, being a motor common carrier for hire, operates a bus system inside and outside of the city limits of Augusta. Since June 1, 1953, a strike against the coach company has been in progress by its drivers and mechanics, during which strike the coach company has repeatedly made public charges that the city council has violated an alleged franchise granted by that body, to the extent that its members have openly advocated violence against the coach company, for all of which the city council is liable, and the coach company intends to sue the city council for $25,000. The franchise of the coach company was enacted as an ordinance on October 26, 1949, and was accepted by the coach company in writing on November 22, 1949. Thereafter, in order to comply with the franchise, the city council adopted ordinance No. 2155, making it "unlawful for the driver of any vehicle other than a bus to stand or park in any officially designated bus stop, . . . except the driver of any passenger vehicle may temporarily stop" in any such stand for the purpose of loading and unloading passengers. Augusta City Code of 1952, Chapter 20, § 77. Because of the foregoing threats, the city council feared there might be liability on its part to the coach company for any damages sustained, and in consequence thereof it has authorized an expenditure of $11,500 per week from public funds to pay for over-time duties of policemen and firemen, and has directed the civil service commission to furnish protection as demanded by the coach company, so as to comply with the terms of the franchise, and to enforce ordinances pertaining thereto. The civil service commission, in compliance with directions from the city council, has ordered large numbers of policemen and firemen to work overtime and to ride the vehicles of the coach company, and to follow the vehicles on motorcycles and in patrol cars, and generally to act as bodyguards and special agents in protecting the business, property, and interest of the coach company. The entire cost of the project amounts to approximately $1,642 per day. Designated vehicles of the coach company are being operated without any license tags attached thereto. The action by the city council and the civil service commission is ultra vires. The franchise and ordinance No. 2155 are void, because they are violative of designated provisions of the Federal and State Constitutions, and the coach company does not have a legal franchise for which it can demand protection, or sue for damages. The joint and several acts of the defendants have caused the unlawful expenditures of large sums of public funds raised by taxation, to which the petitioners contributed and for the replacement of which they will be required to contribute. They have no adequate remedy at law, and the expenditures of tax money will continue unless enjoined. Besides for process and rule nisi, the petitioners prayed: that the franchise granted to the coach company and ordinance No. 2155 be declared void; that the city council be enjoined from compliance with the franchise, from enforcement of ordinance No. 2155, from authorizing the expenditure of any public funds for such purposes, and from requiring the civil service commission to do any of said acts; that the civil service commission be enjoined from requiring policemen or firemen to escort vehicles of the coach company, and from requiring firemen to work as policemen; that the coach company be enjoined from operating its bus system inside the corporate limits of the city, from threatening or intimidating the city council as to compliance with the franchise, including ordinance No. 2155, and from filing any suit against the city council for damages alleged to result from failure to comply with the franchise; and that the petitioners be granted such other relief as may be necessary and proper.
To the amended petition the defendants filed separate general demurrers. The trial judge sustained the general demurrers and dismissed the amended petition as to each of the defendants. The petitioners excepted.
The petitioners are suing as citizens and taxpayers. Ordinarily, only parties having an interest in the subject matter of the franchise are entitled to complain of the grant of a franchise to a public-service corporation by a city council. See, in this connection, Palmer v. Atlantic Ice Coal Corp., 178 Ga. 405, 414 ( 173 S.E. 424); 44 C. J. 1381, § 4560, note 79; 64 C. J. S. 948, § 2135, note 54; Clark v. Interstate Independent Telephone Company., 72 Neb. 883 ( 101 N.W. 977); Warden v. City of Elroy, 162 Wis. 495 ( 156 N.W. 466). Even if some of the acts complained of were unauthorized, the petitioners as citizens and taxpayers show no such interest as would entitle them to enjoin their performance. Blanton v. Merry, 116 Ga. 288 ( 42 S.E. 211); Miller v. Head, 186 Ga. 694, 715 ( 198 S.E. 680); McCloy v. Christian, 206 Ga. 590, 593 ( 58 S.E.2d 171).
Thus the question arises as to whether the alleged use of public funds in the present case would entitle the petitioners, suing as citizens and taxpayers, to the relief prayed. The paramount duty of government, as stated in our State Constitution, is the protection of persons and property. Code (Ann.) § 2-102. In Code § 69-203 it is declared that "The council or other governing body of a municipality has a discretion in the management and disposition of its property, and where it is exercised in good faith, equity will not interfere therewith."
Applying the above principles, the allegations of the amended petition — to the effect that the city was employing extra policemen and expending large sums of money to protect the property of the coach company during an emergency brought about by a strike — were insufficient to show such abuse of discretion as would entitle the petitioners, suing as taxpayers, to the injunctive relief prayed for.
However, counsel for the petitioners insist that, irrespective of whether abuse of discretion was alleged, they had a right to bring the present action under Code § 68-632, which provides that a motor common carrier operating without having registered his vehicles may be enjoined "at the suit of the [Georgia Public Service] Commission, or at the suit of a motor carrier or rail carrier which competes with it, or any individual." Under a proper construction, the words "or any individual" mean any other person having an interest in the subject matter, such as any individual who competes with the common carrier, and would not authorize the grant of an injunction at the instance of individuals whose only interest is as citizens and taxpayers.
Accordingly, the trial judge did not err in sustaining the general demurrers to the amended petition, and in dismissing the action. In this view it becomes unnecessary to pass upon the constitutionality of the franchise and the ordinances connected therewith.
Judgment affirmed. All the Justices concur, except Duckworth, C. J., not participating.