City of Warm Springs v. Bulloch

212 Ga. 149 (1956)

91 S.E.2d 13

CITY OF WARM SPRINGS v. BULLOCH.

19148.

Supreme Court of Georgia.

Argued November 14, 1955.

Decided January 10, 1956.

Geo. C. Kennedy, for plaintiff in error.

W. S. Allen, contra.

*151 HEAD, Justice.

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. Moultric, 136 *150 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.