161 Ga. 780 | Ga. | 1926
The City of Hogansville insists that it is not a proper party defendant. This contention is based upon the theory that the municipality was not a party to the contract entered into with Farrell Heating & Plumbing Co.; that the school board is a separate, distinct, and independent board of school commissioners in whom is vested the control, management, pos
We are of the opinion that the second count in the petition was subject to the general demurrer. The plaintiff, under the allegations in the petition, either had a contract with the municipality, made through its board of education, or it did not have such a contract. It has been ruled in the first division of this opinion that the petition set out a cause of action in the first count, which is based upon an alleged valid contract. The second count seeks a recovery on quantum meruit, or the recovery of a portion of the specific property installed in the school building by the plaintiff, on the theory that such is legally permissible if the contract alleged in the first count was held invalid. If the contract is invalid, it is only so because the board of education sought to create a debt in violation of the constitutional limitation contained in the Civil Code, § 6563. If the agreement was in conflict with the constitution, the alleged contract was void; in which latter event the plaintiff could not recover. “Powers of all public officers are defined by law, and all persons must take •notice thereof.” Civil Code (1910), § 303. It is true that the board of education, in so far as their acts did not conflict with the constitution, were, under the allegations, in the exercise of a power expressly conferred by law; and it has been held that where public .officers are acting ;within, the .powers expressly; conferred
There were a number of special demurrers to the second count; but since the effect of the above ruling is to dismiss the second count, it is unnecessary either to state or rule on these special demurrers. Accordingly, the judgment is affirmed in so far as it overruled the general demurrer to the first count of the petition, and reversed in so far as it overruled the demurrer to the second count.
Judgment affirmed in part and reversed in part.