McGinnis v. McKinnon , 165 Ga. 713 ( 1928 )

Atkinson, J.

1. A taxpayer may bring a suit directly against county officials, to enjoin them from doing an unauthorized or illegal act, without making the county a party. Mitchell v. Lasseter, 114 Ga. 275 (40 S. E. 287); Henry v. Means, 137 Ga. 153 (2) (72 S. E. 1021) ; Dancer v. Shingler, 147 Ga. 82 (2) (92 S. E. 935).

(а) A suit of the character above mentioned differs from suits to obtain legal or equitable relief for or against counties. In suits of that character the county is the proper party. Civil Code (1910), §§ 6594, 385; Arnett v. Board of Commissioners of Decatur County, 75 Ga. 782; Jackson v. Dougherty County, 99 Ga. 185 (25 S. E. 625) ; Henry v. Means, supra.

(б) In so. far as the taxpayers in this case sought injunctive relief to prevent alleged unauthorized and illegal acts of the commissioners, the action was properly brought against the governing county officials.

(c) The petition also seeks equitable relief in behalf of the county. As to that character of relief the county alone could sue.

2. The constitution of this State, article 7, section 6, paragraph 2 (Civil Code of 1910, § 6562), limiting the purposes for which county taxes may be levied, authorizes delegation of power to counties to levy taxes “to build and repair the public buildings and bridges; . . and for . . roads, . ; and to provide for necessary sanitation.” The act of 1870 (Acts 1870, p. 441), creating a board of commissioners of roads and revenues in Glynn County, confers upon said board exclusive jurisdiction: “1. In supervising and controlling all property of the county, as they may deem expedient, according to law. 2. In establishing, altering, and abolishing all roads, bridges, and ferries, in conformity to law. . . 6. In making such rules and regulations . . for the promotion of health, as granted by law or not inconsistent therewith.” The amendatory act of 1898 (Acts 1898, p. 366) confers upon said board the entire control and management of convicts sentenced to work on the public works of the county, and declares that the board of commissioners shall employ the convicts “on the public roads and works of said county, . . and to improve the sanitation of said county.” The Civil Code (1910) authorizes counties to levy a tax for “county purposes” (§ 508). It includes, among the purposes for which taxes may levied, “to build or repair . . bridges or ferries, or other public improvements” (§ 513 (2)). It specifically authorizes counties to levy a tax “for working, improving, and repairing the public roads, as herein set forth” (§ 696). It provides that counties may work, improve, and repair the public roads by employment of chain-gang or free labor, or by contract with private parties or corporations, adopting such methods separately or conjunctively (§ 697). Reid:

No. 6086. February 25, 1928.

(а) Under a proper construction of the foregoing excerpts from the acts of 1870 and 1898 and of the code sections cited, considered in the light of the constitution, the board of commissioners of roads and revenues has authority, in the exercise of a sound discretion, to construct a pier upon the property of the county at the terminus of one of the public roads on the Island of St. Simons, as a part of such road, to be used by the public for the purpose of enabling boats and vessels to make landings, thereby affording means of transportation to and from the island by navigation, and, in connection with such pier and as a part pf the same structure, to provide a pavilion to which the public may resort for observation and recreation; and also to provide rest-rooms and refreshment-stands for public comfort and convenience, where the primary object of constructing such improvements is for the promotion of public convenience, health, and general welfare.

(б) The board of commissioners of roads and revenues may incidentally make charges for the use of the property and for concessions to help bear the expense of maintaining the enterprise. Holton v. Camilla, 134 Ga. 560 (68 S. E. 472, 31 L. R. A. (N. S.) 116, 20 Ann. Cas. 199); Cornelisen v. Atlanta, 146 Ga. 416 (91 S. E. 415) ; Wood v. Floyd County, 161 Ga. 743 (131 S. E. 882).

(c) The board of commissioners of roads and revenues may pay for the construction of such improvements with any funds of the county that are not restricted to any other particular purpose. Tale v. Elberton, 136 Ga. 301 (6) (71 S. E. 420).

(d) If necessary, a county tax could be levied to pay for such improvements under the powers conferred by statute as authorized by the constitution, to build and repair the public buildings and bridges, and for roads, and to provide for necessary sanitation.

(e) No question is involved in this case as to the power of the county to create a debt.

if) Under the pleadings and the evidence at the interlocutory hearing the judge was authorized to find that the board of commissioners of roads and revenues were not employing money to pay the costs of the improvements, the use of which was restricted to some other particular purpose; also that the improvements were made primarily for (lie public convenience, health, and general welfare.

3. Under the pleadings' and evidence the judge did not err in refusing an injunction. ' Judgment affirmed.

All Hie Justices concur. Henry O. Farr, for plaintiff. E. C. Butts, F. M. Scarlett, and Conyers & Gowen, for defendants.