The Marietta journal and courier., 1918-01-18

sought Taking the facts alleged in
the petition to be true, as we must
on demurrer, the plaintiff has such
an interest in the subject-mater of
the suit ass ehtles him to bring it.
He is ia xpay : the city, and as
such has an int e. ia the funds aris-
ing from the mus pal taxation. If
such funds: are be9g used, or about
to be used, for the purpose of paying
an illegal debt Grated by the corpor-
alton, or an illegal contract has been
executed Ri the corporation which
would eventuate in payments under
the illegal contract by the corpora
ton then the plaintiff would have
such interest in the subject-matter of
the suit for its purpose the canceling
of the contract and the enjoining of
payment of money pursuant thereto
as to authorize him to bring and
maintain the action. Renfroe V. City
of Atlanta, 40 Ga 81 az.
2. Was the contract illegal? The
corporation has no authority except
such as is conferred on it by law. The
statute creating it must be strictly
construed. municipal corporations
shall not incur any debt until provi-
sion therefor shall have been made
by the municipal government" Art.
7, section 10, par. 1, of the Consti-
tuition (Civil Code, section 6567).
| The board of Lights and Waterworks
was created by an act of the General
Assembly approved August 20, 1906
(Acts 1906, p. 846, section s.. By
this act (p. S4S), it is provided that
the board "shall make all contracts
for the light and water supply for
the city of Marietta, shall have power
to regulate the water and light rates
in the city, and shall supply the peo-
pie of said city with water at a fair
and equitable rate They shall have
power to make any and all contracts
with any other company supplying
water to the city, and to any and
all things necessary to, the carrying
out of the objects of this bill. Said
board of lights and waterworks shall
take the proceeds of of any bonds
| sold for the purpose of erecting a
system of waterworks and build and
erect such waterwork to the best adj
vantage of the city, and to this end,
if they think best and proper, can
purchase and acquire any property
now owned and operated by any 9TH
er company" This act also provides
for an election by the qualified voters
of Marietta to determine whether
bonds shall be issued and sold for the
purpose of purchasing, establish
inc. maintaining, building and ac
curing a system of waterworks for
. the city of Marietta, etc. By the act
| of 1906 (supra) the authority Of the
board was limited to the purpose set
out above, and when they contracted
to pay the Kennesaw Paper Company
ct al. ''ouit operating its electric light
plant in the city" Of Marietta as a
competing company--not for the pur-
pose of operating it as waterworks
or electric plant, but merely to re-
move a competitor in business, them
selves receiving nothing in the. way
of plant, poles, wire, or other proper
ty of any kind, from the Kennesaw
PAPER Company, the board exceeded
their powers and their act was ultra
wires. This Kennesaw Paper Com
pany was a competitor of the system
created by the city Of Marietta, and
while the bord was authorized by the
act of 1906 to make contracts for the
| light and water supply for the city OF
Marietta, they had no authority Of
law to pay a competing electric plant
to cease business, and to create
debt therefor simply for the purpose
of getting rid of competitor. This
being true, the contract was an ille-
gal one, and the court erred IN sus-
tanning the demurrer and dismissing
the petition.
3. Another ground of the demur-
rer is the 1.-The petition is multifa-
rious in that it contains misjoinder
of actions and of parties" ;" It IS ar
gued that it is not proper to join in
one action suit to enjoin the pay
meat of the notes made to Miller,
and a suit to enjoin the payment Of
the note made to DoObs. We do not
think this contention is sound. The
whole transaction here was part 81
a common purpose of the defendants
to pay the Kennesaw Paper Company
- t,,ziy,aer nm tho one hand and