188 Ga. 655 | Ga. | 1939
J. W. Barwick brought a petition for mandamus against Columbus Roberts as Commissioner of Agriculture and George B. Hamilton as State Treasurer, praying that Roberts be required to draw a warrant or other appropriate order on the treasurer, payable to petitioner, for $2500, to be increased $100 for each month after January 1, 1939; and that Roberts be required to request the Governor to draw his warrant directed to the treasurer for the payment to petitioner of said sums; that Hamilton as treasurer be required to pay said sums to petitioner; and that Hamilton be required to honor and pay such warrant or other order when presented to him. The petition alleged that by virtue of a statute (Ga. L. 1935, pp. 369, 372) the Commissioner of Agriculture, then Tom Linder, in consideration of the transfer and assignment by petitioner of a number of leases embracing lands where the State farmers market is located in Atlanta to the commissioner, which assignment' recited a consideration of one dollar and other valuable consideration, agreed and promised to pay petitioner $100 per month until February 1, 1941, or so long as the department continues in possession of said property; and that none of such monthly payments have been made to petitioner by Roberts, who succeeded Linder as Commissioner of Agriculture on January 1, 1937. The defendants filed general demurrers on the ground that the petition alleged no cause of action. The demurrers were sustained, and the action dismissed. The plaintiff excepted. This is the second appearance of this case in this court. On its former appearance a judgment dismissing on demurrer a suit against Commissioner Roberts, seeking a judgment for the amounts claimed to be due, was excepted to; and this court held that the action was one against the State, and was properly dismissed. Roberts v. Barwick, 187 Ga. 691 (1 S. E. 2d, 713). A full and complete detail of the facts involved in the present case is given in that case as reported.' The facts are substantially the same on both' appearances, save the nature of the proceedings.
In so far as Hamilton as State Treasurer is concerned, the
Whether the petition alleged a cause of action against Eoberts depends on a number of factors involved in the case. First, the petition alleged that plaintiff was entitled to be paid $100 per month, as a consideration for assignment of a number of leases. The question immediately arises as to whether this alleged agreement offended the-constitution. The debts against the State that can be created are-named in the constitution, and all others are expressly prohibited. - No'debt shall be-contracted by or on behalf of-the State, except (a)'to supply-temporary deficits caused by delay in collecting-taxes for the year, (b)! to repel invasion, (c) to
But it is strongly urged by the plaintiff that- he has fully performed his part of the alleged contract by making the outright assignment of the leases to the State, and that such performance on his part accepted by the Commissioner of Agriculture entitles him to enforce the terms of the contract and require performance by the defendant! It is argued that this contention is supported by the ruling in City Council of Dawson v. Dawson Waterworks Company, 106 Ga. 696 (8), 735 (32 S. E. 907), where it was said: “While either party to the contract in question can terminate it at the end of any year, as long as it stands and is complied with by one party the other must comply also.” As authority for this ruling-the court cited Ford v. Cartersville, 84 Ga. 213 (10 S. E. 732); Lott v. Waycross, 84 Ga. 681 (11 S. E. 558); Cartersville Improvement Co. v. Cartersville, 89 Ga. 683 (16 S. E. 25); Dawson Waterworks Co. v. Carver, 95 Ga. 565 (20 S. E. 502). We have examined each of these decisions, and find that neither of the decisions in 84 Ga.'supports the language used by Mr. Justice Cobb in 106 Ga. The Ford decision, after ruling that the contract there involved was void because for more than one year, in violation of the constitution, held that the city should pay for the water and gas actually received and used. This ruling is sound; for our law provides that, one shall not be unjustly enriched at the expense of another; and- the'! remedy of an action for money had and received in"sii'cli-cases is authorized. See Butts County v. Jackson
In the Dawson Waterworks case it was ruled that it was not error to refuse to enjoin the payment for water already consumed, whether the contract involved was legal or illegal. This ruling simply means that the contract had nothing to do with the ruling; and that if the contract was found to be void, the city would still be authorized to pay for the' actual value of water it received and consumed. The only decision relied upon for the ruling that actually supports it is Cartersville Improvement Co. v. Cartersville, supra. The last sentence of the first headnote in that case is in the exact language used in the above ruling. But in division 6 of the opinion in City Council of Dawson v. Dawson Waterworks Co., supra, it was held that part or even full performance of a void contract would not render the contract enforceable, or estop the other party from pleading the invalidity of the contract. This ruling was in the following language (106 Ga. 734) : "Even if a benefit has been received by one of the contracting parties from a contract which is void because prohibited by the constitution, or
Accordingly, in passing upon this contention, we follow the rule so clearly defined in division 6 of the opinion in City Council of Dawson v. Dawson Waterworks Co., supra, and hold that no performance of his part of the unconstitutional contract here involved by the plaintiff will serve the purpose of breathing into it the breath of life and causing it to become valid and enforceable at law in defiance of the plain mandate of the constitution. In
Finally, it is contended that since the act under which the State markets are established provides that fees shall be charged by the markets and used to pay the expenses of establishing and operating them, and since the debt here declared on is for an alleged sale of leases of the land on which the market is situated,
Judgment affirmed.