McClatchey v. City of Atlanta

101 S.E. 682, 149 Ga. 648, 1919 Ga. LEXIS 355

Opinions

Per Curiam.

Section 27 of the act of 1915, amending the charter of the City of Atlanta (Acts 1915, pp. 480, 496), provides: “The mayor and general council of the City of Atlanta, beginning with the year 1916, shall set apart from the revenues of each year the sum of ten thousand ($10,000.00) dollars, and furthermore shall set apart the net receipts from the eyclorama building in Grant Park, beginning with the same year 1916, and the total amount for said two apportionments shall be put in a fund known as the ‘eyclorama building fund,’ and this; fund shall be increased from year to year, from like apportionments, until the total amount • in said eyclorama building fund shall reach the sum of one hundred thousand dollars ($100,000.00) ; whereupon same shall be expended by the authority of the mayor and general council for the building of a eyclorama, museum, and similar quarters in Grant Park for the housing' of the eyclorama picture and such collections suitable for a museum as the city may have or which may be donated for such purposes. That the mayor and general council are prohibited from using any part of said accumulation for any purpose whatever, and same shall be kept intact in said fund and shall be placed in the hands of the sinking-fund commission and loaned out at interest by said commission until the total amount of one hundred thousand ($100,000.00) dollars is reached; whereupon same shall be expended as above provided.” Beld:

No. 1552. December 20, 1919.

Petition for mandamus. ' Before Judge Pendleton. Pulton superior court. June 17, 1919.

Chambers & Dickey and Alvin L. Richards, for plaintiffs. J. L. Mayson and J. M. Wood, for defendants.

1. The above-quoted act became a part of the charter of the City of Atlanta upon the passage of the act, and on its face was charter authority to the city and mandatory upon the municipality to do the several things therein specified.

2. Under former rulings of this court, “the building of a eyclorama, museum, and similar quarters in Grant Park for the housing of the eyclorama picture and such collections suitable for a museum as the city may have or which may be donated for such purposes,” is a public or governmental function. Cornelisen v. Atlanta, 146 Ga. 416 (91 S. E. 415), and cit.; City of Warrenton v. Smith, 149 Ga. 567 (101 S. E. 681); Board of Fulton v. Board of College Park, 147 Ga. 776 (3), 779 (95 S. E. 684). There is no pro-vision in the constitution of the State or of the United States prohibiting the legislature from requiring the municipality to expend its revenues for the building and maintenance of such museum; and the requirement expressed in the statute mentioned above, having reference to the performance of a governmental function, is valid and binding upon the city. 28 Cyc. 301; Cooley’s Const. Lim. (7th ed.) 335; Cooley’s Mun. Cor. 67; 19 R. C. L. 763, § 68, and numerous cases cited.

3. Citizens and taxpayers of the 'City of Atlanta have such interest as would authorize them, as such, to institute an action for mandamus to compel the city to comply with the provisions of the act.

4. Applying the principles ruled in the preceding headnotes, it was erroneous to dismiss the petition upon general demurrer.

Judgment reversed.

All the Justices concur, except Fish, C. J., absent.