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Petty v. City of Atlanta

Petty v. City of Atlanta, 148 S.E. 747 (Ga. Ct. App. 1929)
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Court
Court of Appeals of Georgia · State Appellate Courts
Decided
June 17, 1929
Docket
No. 19468
Judges
Bell
Citations
148 S.E. 74740 Ga. App. 631929 Ga. App. LEXIS 17
Cited by 15

Opinion of the Court — Bell

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Bell, J.

1. Under tlie rulings of the Supreme Court in Cornelisen v. City of Atlanta, 146 Ga. 416 ( 91 S. E. 415 ), where a city, in the maintenance of a park intended primarily for the promotion of the pleasure and health of the public at large, provides therein a swimming pool to be used for the same purpose, it is not responsible in damages for the negligent condition of an adjunct of the swimming pool, although a purely incidental profit might result from the operation thereof, and the city would have no authority to 'operate the swimming pool mainly as a source of revenue, in the absence of charter power to do so.

2. Neither under section 6 of the act approved August 23, 1927, amending the charter of the city of Atlanta (which section is quoted in the petition), nor under any other provision of its charter, has such municipality any authority to maintain a park or swimming pool primarily as a commercial enterprise for the purpose of adding revenue to the city treasury. See Ga. L. 1927, p. 779; Cooper v. Athens, 53 Ga. 638 ; Mayor &c. of Leesburg v. Putnam, 103. Ga. 110 ( 29 S. E. 602 ) ; Keen v. Waycross, 101 Ga. 588 ( 29 S. E. 42 ) ; Frank v. Atlanta, 72 Ga. 428 (1 b); Lofton v. Collins, 117 Ga. 434 (2) ( 43 S. E. 708 , 61 L. R. A. 150) ; 44 C. J. 1101.

*64 Decided June 17, 1929.

3. “All laws and resolutions of the General Assembly, as published by authority, shall be held, deemed, and considered public laws,'and recognized judicially without proof.” Civil Code (1910), § 5797. “A demurrer only admits such facts as are well pleaded, and where the bill alleges facts as true which are contradicted by legislative acts and records of which the court is bound to take judicial notice, it can not hold such facts to be true, and they will not prevent the sustaining of the demurrer.” Griffin v. Augusta & Knoxville R., 72 Ga. 423 (2 d).

4. If, as alleged in the petition, the municipal officers undertook to maintain the park and the swimming pool as a private commercial enterprise for the purpose of financial gain to the city, the endeavor was ultra vires and no liability would attach to the municipality from acts or omissions of the city’s officers or employees in connection therewith. Cooper v. Athens, 53 Ga. 638 (2) ; Wood v. Floyd County, 161 Ga. 743 (2) ( 131 S. E. 882 ) ; and see also, in this connection, Autrey v. Augusta, 33 Ga. App. 757 ( 127 S. E. 796 ); Jones v. Atlanta, 35 Ga. App. 376 ( 133 S. E. 521 ); Reid v. Atlanta, 39 Ga. App. 519 ( 147 S. E. 789 ); Newton v. Moultrie, 39 Ga. App. 702 ( 148 S. E. 299 ).

5. The petition failed to set forth a cause of action, and the general demurrer thereto was properly sustained.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.

Walter A. Sims, for plaintiff. J. L. Mayson, O. S. Winn, J. C. Savage, for defendant.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 15 cases

View all citing references →
1935: 11936: 31937: 11938: 11944: 11946: 11949: 11951: 11952: 11953: 11974: 11980: 11987: 119352026peak 1936 · 3

Relies on it most ⓘ

  1. Pollock v. City of Albany77 S.E.2d 579 (Ga. Ct. App. 1953)
  2. Lee v. City of Atlanta29 S.E.2d 774 (Ga. 1944)
  3. Sheley v. Board of Public Education208 S.E.2d 126 (Ga. Ct. App. 1974)
  4. Lankford v. Holton51 S.E.2d 687 (Ga. Ct. App. 1949)
  5. Watkins v. City of Toccoa189 S.E. 270 (Ga. Ct. App. 1936)
  6. Felton v. City of Great Falls169 P.2d 229 (Mont. 1946)

Most recent

  1. Cleghorn v. City of Albany362 S.E.2d 386 (Ga. Ct. App. 1987)
  2. Scott v. City of Millen265 S.E.2d 30 (Ga. Ct. App. 1980)
  3. Sheley v. Board of Public Education208 S.E.2d 126 (Ga. Ct. App. 1974)
  4. Pollock v. City of Albany77 S.E.2d 579 (Ga. Ct. App. 1953)
  5. Washburn v. Foster73 S.E.2d 240 (Ga. Ct. App. 1952)
  6. Ivory v. City of Montgomery51 So. 2d 559 (Ala. Ct. App. 1951)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 12

DepthCaseCited by
Cornelisen v. City of Atlanta, 91 S.E. 415 (Ga. 1917) 68
Keen v. Mayor of Waycross, 29 S.E. 42 (Ga. 1897) 47
Lofton v. Collins, 43 S.E. 708 (Ga. 1903) 42
Wood v. Floyd Cnty., 131 S.E. 882 (Ga. 1926) 15
Jones v. City of Atlanta, 133 S.E. 521 (Ga. Ct. App. 1926) 7
Reid v. City of Atlanta, 147 S.E. 789 (Ga. Ct. App. 1929) 7
Autrey v. City Council, 127 S.E. 796 (Ga. Ct. App. 1925) 5
Cooper v. Mayor of Athens, 53 Ga. 638 (1875) 4
Newton v. City of Moultrie, 148 S.E. 299 (Ga. Ct. App. 1929) 4
Frank v. City of Atlanta, 72 Ga. 428 (1884) 22
Griffin v. Augusta & Knoxville R.R., 72 Ga. 423 (1884) 18
Mayor of Leesburg v. Putnam, 29 S.E. 602 (Ga. 1897) 18

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