Berrien County v. Paulk, 150 Ga. 829

150 Ga. 829 | Ga. | 1921

Fish, C. J.

(After stating the foregoing facts.) The constitution of this State, article 7, section 7, paragraph 1 (Civil Code of 1910, § 6563), limits the amount of bonded indebtedness to be' incurred by a county to not more than seven per centum of the assessed value of all of the taxable property therein. The statute providing the manner of incurring such indebtedness, embodied in the Civil Code (1910), § 440 et seqv declares, that, when any county shall desire to incur any bonded debt as prescribed in the constitution above noted, “ The officers charged with levying taxes, contracting debts, etc., for the county, municipality, or division, shall give notice for the space of thirty days next preceding the date of election, in the newspaper in which the sheriffs advertisements for the county are published, notifying the qualified voters that on the date named an election will be held to determine the question whether bonds shall be issued by the county, municipality, or division. In said notice he shall specify what amount of bonds are to be issued, for what purpose, what interest they are to bear, how much principal and interest to be paid annually, and when -to be fully paid off.”

“The policy of the law of this State is, and has been since the adoption of the present constitution, opposed to the incurring of debts by towns and cities; and it has therefore become the settled rule that all laws 'in reference to the course to be followed by the public authorities in obtaining consent to contract a debt in behalf of the taxpayers are to be strictly construed, and the consent of the taxpayers is never held to have been given in any case unless the requirements of the law providing the manner in which the debt shall be incurred have been strictly complied with in every material particular. City of Dawson v. Waterworks Co., 106 Ga. 732 [32 S. E. 907]; Smith v. Dublin, 113 Ga. 836 [39 S. E. 327].” City of Thomasville v. Thomasville Electric Light &c. Co., 122 Ga. 399 (50 S. E. 169). Substantially the same language above quoted was used in City of Dawson v. Waterworks Co., supra, where the following cases were cited: Walsh v. Augusta, 67 Ga. 293; Cabaniss v. Hill, 74 Ga. 845; Bowen v. Greensboro, 79 Ga. 709 (4 S. E. 159) ; Mayor &c. of Athens v. Hemerick, 89 Ga. 674 (16 S. E. 72); Ponder v. Forsyth, 96 Ga. 572 (23 S. E. 498); Mayor &c. of Perry v. Norwood, 99 Ga. 300 (25 S. E. 648). Another case in point is Wilkins v. Waynesboro, 116 Ga. 359 (2), 363 (42 S. E. 767), where, after reciting the statutory requirements of the notice for an election for the issuance of bonds, it is said: “ If the notice fails in any of these particulars, it is an illegal notice in the sense that it is entirely ineffective to cause a legal election.” Of course the same policy and rule apply to the incurring of debts by counties. The notice of election for the issuance of bonds in the case at bar, when considered as to the issuance of bonds for the sum of $350,000, failed to comply with the statute in two particulars. The notice specified the amount of bonds to be issued in the sum of $500,000. This was no notice that the amount of bonds to be finally issued was to be in the sum of $350,000; and the notice in stating how much principal and interest was to be paid annually was based on an issuance of bonds to the amount of $500,000, and could not apply to the principal and interest to be paid annually on an issuance of $350,000 of bonds. It is manifest, therefore, that the notice in not specifying the amount of bonds finally sought to be issued, and how much principal and interest in respect of such bonds should be paid annually, was fatally defective in view of the decisions of this court hereinbefore cited, and resultantly the election was void.

There was nothing decided in Heilbron v. Cuthbert, 96 Ga. 312 (23 S. E. 206), in conflict with the ruling we here make. It was expressly stated' in the opinion in that case that no attack was made on the published notice of the election for bonds on the ground that it specified a larger amount of bonds than the municipal authorities could constitutionally issue, and that if the point were meritorious it ought to have been made in the petition to prevent the issuing and selling of the bonds involved. We do not concur in the intimation made in that ease, by way of obiter dictum, contrary to what we now hold.

In addition to what we have said, it may be stated that the notice of election in the instant case informed the voters of the county that the question to be voted on by them was whether bonds in the sum of $500,000 should be issued, and that stated amounts of the principal and interest should be annually paid; and to decide that, at the instance of the board of commissioners of roads and revenues of the county, the judge of the superior court could order the issuance of bonds for $350,000, with stated amounts of principal and interest in respect thereof to be annually paid, would in effect be holding that the voters, who alone had the right to determine the question submitted at the election, had delegated the power to the board of commissioners of roads and revenues and to the judge of the superior court, in their discretion, to issue bonds for a different though lesser amount, with different and lesser amounts of principal and interest to be annually paid, when no such discretionary authority could be so conferred. In this connection see Schultze v. Manchester, 61 N. J. L. 513 (40 Atl. 589); Stern v. Fargo, 18 N. D. 289 (122 N. W. 403, 26 L. R. A. (N. S.) 665); Hillsboro County v. Henderson, 45 Fla. 356 (33 So. 997). Cases dealing with bonds which had been issued and sold to innocent purchasers are not applicable to the issue involved in the case at bar.

We are aware that decisions have been made in other jurisdictions, seemingly not in harmony with the ruling we here make. If they can not be differentiated from the case at bar by reason of the mandatory requirements of our statute in respect of notice of elections for bonds, then we can not concur in such decisions. It -follows, of course, from what we have said, that the judgment of the Court of Appeals is Affirmed.

All the Justices concur.