Knowles v. Housing Authority of City of Columbus , 94 Ga. App. 182 ( 1956 )

94 Ga. App. 182 (1956) 94 S.E.2d 55

KNOWLES
v.
HOUSING AUTHORITY OF CITY OF COLUMBUS.

36220.

Court of Appeals of Georgia.

Decided June 20, 1956. Rehearing Denied July 12, 1956.

Charles A. Hughey, Vincent P. McCauley, for plaintiff in error.

W. M. Page, Swift, Pease, Davidson & Chapman, contra.

NICHOLS, J.

In Hall v. Hospital Authority of Floyd County, 93 Ga. App. 319 (91 S.E.2d 530), it was held that a tort action could not be maintained against a hospital authority even though the act creating the public body corporate and politic provided that it could sue and be sued. The basis of the decision was that the functions of the authority were governmental in nature. The decision was not based on the wording of the act which stated that the functions were governmental in nature, but rather on the fact that the function, to wit: furnishing medical care and hospitalization for the indigent sick and poor, was a governmental function. Therefore, if the functions of the housing authority in the present case are governmental in nature then no action sounding in tort can be maintained against it although the act of 1937 (Ga. L. 1937, pp. 210 et seq.; Code, Ann., § 99-1115), provides that housing authorities may sue and be sued.

"The preservation of the public health is a governmental function." Barr v. City Council of Augusta, 206 Ga. 750 (1) (58 S.E.2d 820), citing Love v. City of Atlanta, 95 Ga. 129, 133 (22 S.E. 29, 51 Am. St. Rep. 64). The Act of 1937, supra, (Ga. L. 1937, pp. 210, 211; Code, Ann., § 99-1102), declared the need for housing authorities, stating that there existed in the State, "insanitary or unsafe dwelling accommodations and that persons of low income are forced to reside in such insanitary or unsafe accommodations; that within the State there is a shortage of safe or sanitary dwelling accommodations available at rents which persons of low income can afford and that such persons are forced to occupy overcrowded and congested dwelling accommodations; that the aforesaid conditions cause an increase in and spread of disease and crime and constitute a menace to the health, safety, morals and welfare of the residents of the State and impair economic values; that these conditions necessitate excessive and disproportionate expenditures of public funds for crime prevention and punishment, public health and safety, fire and accident protection, and other public services and facilities." The Act then went on and authorized the establishment of housing authorities in certain areas of the State in an effort to combat these conditions. As in Hall v. Hospital Authority of Floyd County, 93 Ga. App. 319 (91 S.E.2d 530), where the hospital authority was carrying on a governmental function in furnishing medical care to the indigent sick and poor, the housing authority in the present case was carrying on a governmental function concerning the preservation of the public health, because, in removing the insanitary and unsafe areas from the State it is removing at least some of the breeding areas of diseases which of course when once bred, do not confine themselves within the bounds of the insanitary and unsafe areas of the State but continue, or are at least capable of continuing, in epidemic fashion throughout the State. Just as the maintenance of a sewerage-drainage system is a governmental function with reference to the preservation of health (City Council of Augusta v. Cleveland, 148 Ga. 734, 98 S.E. 345), so must be the functions of the defendant housing authority in the present case. Accordingly, the trial court did not err in sustaining the general demurrer to the petition.

Judgment affirmed. Quillian, J., concurs. Felton, C. J., concurs specially.

FELTON, C. J., concurring specially. The long line of precedents bearing on the questions involved in this case leaves me no recourse but to concur in the opinion and the judgment.