City of Bainbridge v. Jester

157 Ga. 505 | Ga. | 1924

Lead Opinion

Russell, C. J.

(After stating the foregoing facts.) In the brief of counsel for defendants in error a motion is made to dismiss the main bill of exceptions, upon the ground that there is no sufficient assignment of error. It is insisted that the judgment should be affirmed, because no error is sufficiently assigned, specified, or submitted to the Supreme Court, and for that reason there is nothing for this court to pass upon or consider, and the court is without jurisdiction to- consider the present writ of error. Section 6224 of the Civil Code of 1910 declares that “bills of exceptions must distinctly specify the points on which error is assigned.” In the bill of exceptions now before us the decree of the court is set forth verbatim, and the assignment of error immediately following is as follows: “To which order and judgment of the court the defendant, now plaintiff in error, to wit, the City of Bainbridge, its mayor and aldermen, and chief of police, then and there excepted and now except and assign the same as error on tlie ground that the same is contrary to law.” Numerous authorities are cited by counsel to support the proposition that' this assignment fails to “distinctly specify,” as required by the eighth rule of this court (§ 6224 Civil Code), in what particular, wherein, how, why, or to what law the decree is contrary. Some of the rulings cited were expressly overruled in Lyndon v. Ga. Ry & El. Co., 129 Ga. 353 (58 S. E. 1047), and the other citations in the brief refer to bills of exceptions to judgments rendered in actions at law. The case now before us is an equitable petition with an application for injunction, and therefore presents an exception to the rule referred to in the authorities cited by the defendant in error. A different rule is provided as to the definiteness or amount of specification required in assignments of error upon the grant of an injunction, and this court has uniformly ruled that in such cases an assignment of error that the judgment or decree rendered was contrary to the law and the evidence or contrary to law or contrary to the evidence is in such a ease sufficient. See Anderson v. Newton, 123 Ga. 512 (51 S. E. 508); Kirkland v. A. & B. Ry. Co., 126 Ga. 246 (55 S. E. 23). The reason for this distinction, and why less definite specification of reasons set forth why the judgment complained of is error, is found in the wide discretion allowed the chancellor in the grant of extraordinary relief. I am very loath to avoid the decision of any issue by the summary dismissal, upon mere technical grounds, of bills of exceptions by which alleged errors are sought to be reviewed and by means of which alone they can be corrected. The rulings of this court as to the assignment of errors in equitable cases are in accordance with the provisions of the code, which requires the courts of last resort in this State to decide any question presented for adjudication if there is enough in the record to enable the court clearly to understand the point upon which the adjudication is sought. The motion to dismiss is therefore overruled.

Upon the petition substantially stated in the statement of facts the judge of the superior court granted a temporary restraining order enjoining and restraining the City of Bainbridge, its mayor and aldermen, and chief of police from issuing or levying any fi. fas., advertising or selling any property of any person, based upon the assessment made for the pavement of the sidewalks of that city, or from attempting to collect any assessment for paying for the paving of the sidewalks of the City of Bainbridge, based on the act of the legislature approved August 20, 1920, or the city ordinance passed in pursuance thereof on August 1, 1921; and required the defendants to show cause, etc. This order, on March 15, 1923, was so modified- that any person who desired to pay his assessment might do so, and the officials were authorized to receive any and all such voluntary payments. After the allowance of various amendments both to the answer and the petition and after a full hearing, the judge of the superior court entered an order on April 24, 1923, holding that the bonds issued to provide for the assessments against landowners of city lots abutting upon streets for the paying for the pavement were not a debt of the City of Bainbridge, and that the municipality had assumed no liability other than its agreement to become the agent of the bondholders to collect and pay the sums lawfully assessed for said paving, and that the property owners had estopped themselves to dispute the necessity for, the cost of, or the validity of the undertaking, provided that there was a legal subsisting contract as a basis for the assessment. However, the judge held that the contract was illegal, and that for that reason the assessment was illegal; and he continued of force the temporary restraining order previously granted, forbidding any levy or sale of the property of the petitioners. The City of Bainbridge, its mayor and aldermen, and chief of police except to this judgment.

We think that the court properly ruled that the bonds were not a debt' of the City of Bainbridge, and that the only obligation of the city under the terms of the act of 1920 (Acts 1920, p. 741) was to act as agent for the bondholders in collecting and paying over to the bondholders any sums that might be due. them by levy and sale. The judge did not err in holding that if the contract for paving was valid, the property owners who were assessed each his pro rata share of this total cost represented by the bonds would be estopped to dispute the necessity for the public improvement or the amount of the assessment or the validity of the ordinance. But we think the learned trial judge erred in holding that the contract under which it was agreed that the bonds were issued, the contract by the terms of which the contractor who laid the pavement agreed to accept his pay in bonds, is invalid.

We shall first consider the question as to whether the contract was invalid for the reason that it violated the legislative requirement which prohibited any sale of the bonds below par. It appears from the record that there were three bidders for the contract to pave the sidewalks at Bainbridge. Each bidder submitted a bid to lay the pavement at so much per square yard, and to take the bonds to be issued in payment in full for the sidewalks when completed. Each contractor also bid to construct the sidewalks for a lesser sum per square yard, payable in cash at the completion of the contract. The bid of Davis and Company both in respect to payment in cash or in bonds was the lowest, and the mayor and aldermen accepted the bid in which Davis offered to accept his pay in bonds at $1.65 per square yard. We do not think that this circumstance alone is sufficient to show a sale of the bonds below par. All of the bidders, merely recognized the difference between cash and time price. It may be true that none of the bidders wished to buy bonds for an investment, perhaps for the very potent reason that each of them required all of their assets in order to remain in the business of public contracting; and if all of the property owners affected by the assessment had paid, as they had the right to do, within thirty days the assessment for the sidewalk paving, no bonds would have been issued. It appears from the record that the property owners were each notified of the assessment, and the notice in each instance stated that the cost of paving was $1.65 per square yard, but the city clerk appended to each notice a statement that by an arrangement with the contractor the assessment could be discharged by the payment of a lesser sum which appears to have been based upon a calculation made at the rate of $1.29 per square yard instead of $1.65. This left it within the power of each property owner, even after the assessment against him for the contract price, to have the advantage of the cash bid although the city had not accepted that bid. From this it appears that there was no partiality in the preference of one property owner as against another; and so the real question presented is whether or not it can be presumed from the fact that bonds delivered to a contractor presumably at par can be held to have been sold below par. In other words, is there anything in the contract itself which shows it to be invalid because the bonds were accepted in payment for the construction of the sidewalks, instead of money, even though the price charged for the construction, if payable in bonds, exceeds the offer to construct for cash.

The order of the judge of the superior court in this case adjudged that the injunction should be continued upon the ground that the contract was invalid, and that the resulting assessments and the fi. fas. issuing thereon were void, because it was plain that the contract is an evasion and violation of the provisions in § 6 of the act of 1920 (Acts 1920, p. 741, 743), because the bonds were sold below par, and the contract under which the assessments were made shows that the assessments were not in fact made in accordance with law, as shown by the fact that those who paid cash were assessed only $1.29 per square yard, while the property of those who were unable to pay cash was assessed at $1.65 per square yard. This can be plainly seen from the order of the judge as set forth in the statement of facts. To this ruling the plaintiffs in error, the City of Bainbridge and others, excepted. In rendering his decision the judge did not pass upon any of the questions raised in the petition in regard to the constitutionality 'of the act of 1920, supra; and although the decision of the court was favorable to the defendants in error, they filed a cross-bill of exceptions, asking the judgment of this court on the alleged unconstitutionality of the foregoing act as stated and presented in their petition. We shall first deal with the cross-bill. The exception raising the point that the provision of the act of 1920, supra, providing for the levy and assessment and the issuance of bonds by the City of Bainbridge, is the creation of a new debt, is without merit, for the reasons stated in the recent case of City of Valdosta v. Harris, 156 Ga. 490 (119 S. E. 625), and cases therein cited. The exception that the act is unconstitutional because in violation of art. 1, sec. 4, par. 1, of the constitution, which provides that no' special law shall be enacted in any case for which provision has been made by an existing general law, is also without merit, because this court has held contrary to this contention in Walthour v. Atlanta, 157 Ga. 24 (120 S. E. 613).

There is no merit in any of the exceptions based upon constitutional grounds. The judgment of the lower court upon the cross-bill is therefore affirmed.

Conceding but not deciding that the bonds were sold below par, still it is unnecessary to pass upon that question at this time, because a majority of tbe court are agreed that tbe defendants in error are estopped, after the contractor has fully complied with his contract, and has expended large sums of money, and after the paving has been accepted by the city, to assert the invalidity of the assessments and the fi. fas. issued thereupon. The lower court held that there was no laches. We are of the opinion that the defendants in error cannot assert this, because they were bound to know what was going on; they could see the pavement in front of their respective property as it was constructed. They were notified by publication of all of the proceedings leading up to the contract upon which the assessments are based, and were afforded an opportunity to object before the contract was awarded. After having received all the .benefits that can accrue from the pavement, they will not be heard to contend for the first time that the contract, which, if it is illegal, they could have prevented, is invalid. Iverson v. Saulsbury, 65 Ga. 725; Southern Marble Co. v. Darnell, 94 Ga. 232 (21 S. E. 531); Vandiver v. Byrd-Matthews Lumber Co., 146 Ga. 117 (90 S. E. 960); Warner v. Hill, 153 Ga. 510 (112 S. E. 478); Arnold v. Board of Commissioners, 156 Ga. 733 (120 S. E. 310).

So we hold that the judge erred in granting the injunction.

Judgment reversed on the main bill of exceptions, and affirmed on the cross-bill.

All the Justices concur, except

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Dissenting Opinion

Gilbert, J.,

dissenting. I am unable to concur in the ruling made in the third headnote, and am therefore forced to dissent from the judgment of reversal. The trial judge, under the pleadings and the evidence at the hearing for temporary injunction, found that, contrary to the statute under which the city was acting, it sold the bonds at less than par. The statute in question is mandatory, as follows: “Said bonds shall be sold at not less than par, . . or such bonds in the amount that shall be necessary for that purpose may be turned over and delivered to the contractor at par value in payment of the amount due him on his contract,” etc. It appears to me that the evidence demanded the finding that the bonds were sold at less than par. The paving contract entered into between the City of Bainbridge and the paving contractor, whereby the bonds were turned over and delivered to the contractor at less than par, was therefore an illegal and invalid contract. “In a case of the character just indicated, no estoppel will arise against an abutting-property owner, on account of the fact that the pavement was completed before the filing of the petition, to deny the validity of the assessment, especially where such property owner entered his protest against the construction of the improvements.” Sanders v. Gainesville, 141 Ga. 441 (1 a, b) (81 S. E. 215). Moreover estoppel is not pleaded as a defense, and therefore the judgment of the trial judge should not be reversed on the ground that the petitioners were estopped. The opinion of the trial judge, with authorities cited, is set out above, and it is sound and convincing. The principles ruled in the first and second headnotes are in accord with previous decisions of this court. While this is true, manifestly they sanction a new encroachment upon the property rights of private citizens. It is indirect taxation hy the municipality under a method not foreseen by the framers of the Georgia constitution. The power of cities to incur debts is strictly limited, under the constitution of Georgia. Clearly this, even though legal, is an ingenious method of avoiding the constitutional limitations by doing indirectly what the city could not do directly. In such a case the statute should be strictly construed, certainly as much so as if the city were incurring a liability against the municipality itself in the usual way. In City of Thomasville v. Light Co., 122 Ga. 399 (50 S. E. 169), this court said: “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.” Mays v. City of Jackson, 147 Ga. 556 (94 S. E. 1006). In this case assessments were made by the municipality on the private property of citizens for public uses, and the principles of estoppel should not be applied to them as in the cases cited in the majority opinion, where improvements were made on the property of the owner for the personal benefit of the owners of the property. Here the contract on which the assessment is made was illegal, because contrary to the express mandatory provisions of the statute under which the paving was authorized. The paving contractors were bound to know that the contract was illegal. They had. already perfected an arrangement with the local bank to receive the bonds far below par; and there was evidence for the petitioners that the paving improvements were made over their protest and objection. While courts are and should be slow to interfere with public improvements, at the same time the solemn duty rests upon them to protect private property of the citizen1; for the constitution, article 1, section 1, paragraph 2 (Civil Code (1910), § 6358), provides: “Protection to person and property is the paramount duty of government, and shall be impartial and complete.”