Property of a municipal corporation in use for the public or held for future use for the public is not subject to levy and sale under executions. All property held by a municipal corporation is presumptively for public use.
(Civil Code 1895, § 750; Civil Code 1910, § 899; Code 1933, § 69-305.)
Law reviews.- For article, "Cities and Towns in Georgia: A Distinction with a Difference?," see 14 Mercer L. Rev. 385 (1963).
JUDICIAL DECISIONS
All property of every kind held by municipality is presumptively for public use, and while perhaps the presumption may be overcome on proof of a holding for other purposes, as a mere investment to reap profits and save taxes, and with no ulterior purpose to apply the investment to the use or enjoyment of the public thereafter, yet the onus would be upon the plaintiff in execution to make that proof. Curry v. Mayor of Savannah, 64 Ga. 290, 37 Am. R. 74 (1879).
Municipal property held in proprietary capacity subject to sale.
- As a general rule, property held by a municipality for governmental or public uses cannot be sold without express legislative authority, but must be devoted to the use and purpose for which the property was intended; the rule is otherwise as to property held by a municipality in the municipality's proprietary or private capacity if not devoted to any specific public use. Kirkland v. Johnson, 209 Ga. 824, 76 S.E.2d 396 (1953).
Land not used for public use subject to sale.
- Though land be bought for a public use, if not actually used for such purpose it cannot be said to be held by the municipality as a public trust, and may be sold. Kirkland v. Johnson, 209 Ga. 824, 76 S.E.2d 396 (1953).
When property held by municipality for governmental or public use is abandoned as to such use, the municipality may sell the property without express legislative approval. Kirkland v. Johnson, 209 Ga. 824, 76 S.E.2d 396 (1953).
Town schoolhouse is not subject to levy and sale by virtue of judgment and execution against the town, regardless of whether it is run as a free school, or rented to private teachers, who charge tuition; and consequently, if the house be destroyed by fire, the insurance therefor cannot be reached by garnishment by the judgment creditor. Fleishel & Kimsey v. Hightower, 62 Ga. 324 (1879); Walden v. Town of Whigham, 120 Ga. 646, 48 S.E. 159 (1904).
Cited in Pembroke State Bank v. Balboa Ins. Co., 144 Ga. App. 609, 241 S.E.2d 483 (1978).
OPINIONS OF THE ATTORNEY GENERAL
Lease to private entity prohibited absent express authority.
- Property held by a municipality for the public use and the benefit of the municipality's citizens cannot be leased to a private entity without express legislative authority in the absence of other applicable exceptions. 1992 Op. Att'y Gen. No. U92-9.
RESEARCH REFERENCES
C.J.S.
- 63 C.J.S., Municipal Corporations, §§ 1153, 1154, 1162.
CHAPTER 34 POWERS OF MUNICIPAL CORPORATIONS GENERALLYSec.
- Constitutional provision authorizing General Assembly to provide for self-government of municipalities, Ga. Const. 1983, Art. IX, Sec. II, Para. II.
Authority of governing body, planning agency, of municipality to approve plans for clearance, development, of blighted areas, § 8-4-5.
Resolution of conflicts between this chapter and T. 36, C. 35, § 36-35-8.
JUDICIAL DECISIONS
Editor's notes.
- In light of the similarity of the statutory provisions, decisions prior to enactment of this chapter are included in the annotations for this chapter.
In light of the similarity of the statutory provisions, opinions decided under former law are included in the opinions for this chapter.
Municipality is a political division of the state, having for the municipality's object the administration of a portion of the power of government delegated to the municipality for that purpose. Cruise v. City of Rome, 94 Ga. App. 373, 94 S.E.2d 617 (1956); Spence v. Rowell, 213 Ga. 145, 97 S.E.2d 350 (1957) (decided under former Code 1933, § 22-103).
Nature of powers possessed by municipal corporation.
- Municipal corporation possesses, and can exercise, the following powers, and no others: first, those granted in express words; second, those necessarily or fairly implied; third, those essential to the declared objects and purposes of the corporation - not simply convenient, but indispensable. Jewel Tea Co. v. City Council, 59 Ga. App. 260, 200 S.E. 503 (1938) (decided under former law).
Powers granted to municipal corporations are to be strictly construed, and if there is any reasonable doubt of the existence of the power, it will be resolved against the municipality. Kirkland v. Johnson, 209 Ga. 824, 76 S.E.2d 396 (1953) (decided under former Code 1933, § 69-203).
Any fair, reasonable doubt concerning the existence of power is resolved by the courts against the municipal corporation. Jewel Tea Co. v. City Council, 59 Ga. App. 260, 200 S.E. 503 (1938) (decided under former law).
Powers of municipal corporation are fixed by the municipality's charter and by general statutory authority relating to such corporations, and the municipal corporation may exercise such powers as are expressly delegated to the municipality, as well as those which would be reasonably implied from the express terms of the charter. Kirkland v. Johnson, 209 Ga. 824, 76 S.E.2d 396 (1953) (decided under former Code 1933, § 69-203).
Duty to protect citizen.
- Municipality, like the state as a whole, owes as the municipality's paramount duty to the citizen the protection of the citizen's person and property. Cruise v. City of Rome, 94 Ga. App. 373, 94 S.E.2d 617 (1956) (decided under former law).
Municipal corporation is without authority, not only to contract or incur liability, but to donate the municipality's money or property, unless authorized by the municipality's charter or some general law of the state. Such a power is not conferred by a general welfare provision in the charter. Miller v. City of Cornelia, 188 Ga. 674, 4 S.E.2d 568 (1939) (decided under former law).
Municipalities have right to control burials in public cemeteries.
- Municipalities, under authority to protect the health of a municipality's citizens, have the right to control, by reasonable regulations, the interment and disinterment of bodies in public or municipal cemeteries. Mayor of Savannah v. Colding, 181 Ga. 260, 181 S.E. 821 (1935) (decided under former law).
Cited in City of Athens v. McGahee, 178 Ga. App. 76, 341 S.E.2d 855 (1986).
OPINIONS OF THE ATTORNEY GENERALMunicipality cannot, even with approval by referendum election, construct building for rental to private industry as municipalities have no authority to enter into business. 1954-56 Op. Att'y Gen. p. 489 (decided under former law).
RESEARCH REFERENCES
ALR.
- Power of municipality to exact license tax or fee from interurban carrier, 31 A.L.R. 594.
Power of municipal corporation to submit to arbitration, 40 A.L.R. 1370.
Power of municipal corporation or authorities to employ detective, 45 A.L.R. 737.
Delegation by municipality of its powers as to building regulations, 46 A.L.R. 88.
Power of municipality to acquire and operate ice plant, 46 A.L.R. 836; 68 A.L.R. 872.
Power of municipal corporation to fix rates of motor vehicles for hire, 65 A.L.R. 1364.
Power of municipality as to billboards and outdoor advertising, 72 A.L.R. 465.
Power of municipal corporation to employ attorney, 83 A.L.R. 135.
Power of municipality to classify for purposes of taxation as affected by classification made by state or its failure to classify, 110 A.L.R. 1203.
Power of municipality to impose chain store license tax, 111 A.L.R. 596.
Delegation to board or officer of police power to require vacation, destruction, or repair of individual building deemed by such officer or board unsafe or insanitary, apart from noncompliance with specific regulations, 114 A.L.R. 446.
Right of municipality to invoke constitutional provisions against acts of state legislature, 116 A.L.R. 1037.
Power of municipalities or other political subdivisions to engage in a joint project or enterprise, 123 A.L.R. 997.
Municipal ordinance relating to persons engaged in specified occupations or professions as applicable to officials or employees of state or political subdivision other than the municipality, 123 A.L.R. 1383.
Municipal license as affecting municipality's exercise of police power adversely to licensee, 124 A.L.R. 523.
Power of municipal corporation to contribute financially to municipal league or other organizations of a similar character, 169 A.L.R. 1230.
Power of municipality to sell, lease, or mortgage public utility plant or interest therein, 61 A.L.R.2d 595.
Power of municipal corporation to submit to arbitration, 20 A.L.R.3d 569.
Power of municipal corporation to lease or sublet property owned or leased by it, 47 A.L.R.3d 19.
Power of municipality to charge nonresidents higher fees than residents for use of municipal facilities, 57 A.L.R.3d 998.