Turner v. City of Atlanta

127 S.E. 652, 160 Ga. 216, 1925 Ga. LEXIS 123

• Court: Supreme Court of Georgia
• Decided: April 15, 1925
• Docket: No. 4463
• Status: Published

Opinion

Russell, O. J.

1. It is provided in the act of 1910 (Acts 1910, p. 130) that “In all counties in this State having a population of one hundred and twenty-five thousand, or more, the board of county commissioners, or, if there be no such board, the ordinary of said county shall have the power to grant or refuse permission to establish, outside of the limits of incorporated towns, cemeteries, hospitals, sanatoriums, or similar institutions.” This act is applicable to the County of Fulton, and purports to confer authority upon the board of county commissioners of Fulton' County to grant or refuse the use of land outside of the limits of incorporated towns in the County of Fulton for burial purposes.

2. Having the power to grant or refuse permits for the location of a cemetery under the provisions of the above act, it is contrary to public policy for the board of county commissioners to grant a permit for the location of a cemetery to one of its members, or to a company or association in which one of its members is financially interested. Hardy v. Gainesville, 121 Ga. 327 (48 S. E. 921); Tarver v. Dalton, 134 Ga. 462 (67 S. E. 929, 29 L. R. A. (N. S.) 183, 20 Ann. Cas. 281).

No. 4463. April 15, 1925. Henry McCalla and Key, McClelland & McClelland, for plaintiffs in error. Branch '& Howard, Underwood, Pomeroy & Haas, Arnold & Arnold, Colquitt & Conyers, and Charles B. Shelton, contra.

3. The judgment at the interlocutory hearing was in effect a final decree which the court could not render in advance of a trial; but the judge was authorized, under the pleadings and the evidence, to grant a temporary injunction until the further order of the court. The judgment rendered will be so modified that it will apply only until the further order of the court.

Judgment affirmed, with direction.

All the Justices concur.