*1 theory, I law which will not undertake analyze choice of these facts, might very bring well about different result from that reached majority opinion. May 2,
Decided Assoc., Keenan, Bills, Keenan & Don C. David S. A. Robert Falanga, appellants. for Gold,
Gray, & Gilliland, Barksdale, Gilliland T. Cullen M. Scott appellees. 42126. DEPARTMENT OF et TRANSPORTATION al.
v. al. BROOKS et COMPANY, 42127. SHEPHERD CONSTRUCTION INC. et al. al. BROOKS et 42191. BROOKS et al. v. CITY OF ATLANTA al. et Per curiam.1 plaintiffs, residents, citizens, as taxpayers Georgia, Atlanta brought State this suit enjoin performance under a contract entered into between Construction Com- pany Department Transportation and the grading for the pav- ing of a Parkway. addition, road known as the In Presidential plaintiffs seek null to have declared and void vote Atlanta enacting an transferring properties ordinance to the De- (referred DOT) partment Transportation to hereinafter as the be used as rights-of-way parkway. granted trial court plaintiffs’ motion for a temporary restraining order. The court subse- quently granting entered order the plaintiffs’ request to set aside (referred grading pаving Shep- hereinafter as contract) denying request but their to overturn ordi- herd/DOT (referred ordinance). nance to hereinafter as the In land-transfer Case No. the DOT appeals ruling Shep- the trial court’s as to In contract. Case No. Construction Com- herd/DOT (referred pany Shepherd) appeals ruling. to hereinafter the same No. plaintiffs appeal Case ruling trial court’s as to the land-transfer ordinance. ex- granted We DOT’s motion for an 1 Marshall, J., prepared opinion Court, exception P. behalf 42191,” portion styled Holdings prepared “Our No. Case which was on behalf of the Court by Weltner, J.
pedited appeal.
Facts (a) contract: Shepherd/DOT un- Georgia and other states investigations enforcement
Law on high- the bids conspiracies by rig contractors massive covered *2 result, a contractors approximately As way projects. construction conspiracy bid-rigging on in states were convicted Georgia and other charges. 1982, plea guilty charges to 31, Shepherd entered a of
On March i.e., competition, rig- bid open conspiracy restraint of free and of OCGA Superior Court. See in in the Fulton ging, proceedings criminal (a).2 year’s probation placed on one criminal Shepherd 16-10-22 was § to and, sentence, restitution pay ordered to part of its was prin- of $2,225,000, equal in installments in four DOT the amount per the rate of an- plus unpaid balance at cipal interest on the 12% addition, Shepherd promissory to execute num. In was ordered note, balance of the security agreement unpaid secure the with a to restitution. security promissory agreement. executed the note
Shepherd was due on the date payment Its first installment of restitution was due paid Its second installment sentencing was on date. 1983, early. Its third install- April paid in and it six months was 1984, paid it not when payment April ment due in and was was Shepherd’s pay failure to surrounding due. The circumstances in fully will discussed more later third installment when due 1985, in opinion. April was due and was fourth installment рaid early. two months 2, 1982, days Shepherd pleaded
On April guilty, two after Shepherd’s Qualification to bid on suspended DOT Certificate of However, existing not vitiate con- projects.3 suspension DOT did previously Shepherd. tracts to awarded January Shepherd
On the DOT and entered into Pro- to Agreement. the DOT re- bationary agreement, agreed Under this basis, Shepherd’s Qualification probationary store Certificate upon Shepherd’s continuing compliance conditioned with the terms of by agreement. Probationary Agreement This was created implicated DOT so let contractors that the DOT could contracts to 23, 1982, Shepherd charge pleaded guilty in States to a On June United District Court competition conspiring suppress violating the Sherman Act to and eliminate Antitrust respect highway projects. to 1. § federal 15 USCA persons qualified OCGA DOT maintain “a list of reliable 32-2-66 authorizes the on a . . .” bid [DOT] activities; but, time, Probationary at the Agree- same bid-rigging give rights ments the DOT prevent contractual thе contractors from engaging anti-competitive Probationary Under the activities. Agreement, Shepherd keep required records of contacts with suppliers subcontractors, of material and as well as records on all suc- cessful and unsuccessful bids submitted on DOT construction projects. Probationary Agreement does not address the matter of restitution. 13, 1983,
On or about Shepherd eligible November became bid projects federal-aid its because debarment the United States was lifted at that time.
In the summer of the DOT conducted an audit of the bid- ding of Shepherd records Shepherd’s compliance order to check requirements the record-keeping Probationary Agreement. This Shepherd audit disclosed the fact 1983 had retained records on projects at least 17 for which it was not the low It bidder. was also discovered that certain instances had failed to keep person quotes records the date and suppli- contacted on ers оf material and The DOT subcontractors. determined that foregoing Probationary violations Agreement were not material violations, merely and a decision was made to warn *3 compliance strict Probationary required with the Agreement would be in the future. 4, 1984,
On Parkway October the Presidential began to be adver- 24, 1984, tised for Shepherd, bids. On October Harold President Shepherd Newhard, Construction Company, telephoned Jack Presi- dent of APAC-Georgia.4 According Newhard, Shepherd to asked him: “. . . if we were Parkway. interested I Presidential said that [the] we looking were say. at and that was all I He OK. He could said said we hadn’t said anything wrong and all.” a Although that was rec- ord kept by Newhard, of this conversation was Shepherd Mr. Mr. made no Shepherd’s such record. failure to make record of the con- however, Probationary versation was a violation of Agreement; the the DOT did not February become aware of this violation until 1985.
Meanwhile, 26, 1984, on October on bids were received the Prеsi- Parkway project. portion dential On grading paving the and of the project, $15,491,000.76 Shepherd’s bid the APAC- was lowest bid. Georgia bid, $1,380,000 made the next higher lowest which was than Shepherd’s Consequently, Shepherd ap- bid. was announced as the parent addition, low In grading paving bidder the and contract. Construction, Inc., Arapaho apparent was announced as the low bid- 4 APAC-Georgia previously Company. was the Ashland-Warren Parkway Presidential of the for construction der on the contract 21, 1984, Shep- $6,526,925. On November Arapaho’s was bridges. bid contract, was Arapaho and paving and grading herd was awarded the com- Work bridges. of the the contract for construction awarded 6, project menced on the on December Shepherd had not January On the DOT discovered April of 1984. The payment due made the restitution installment 8, 1985, January On payment. and demanded Shepherd DOT called plus installment $562,500 of the Shepherd paid principal amount $308,000 promptly was payment the installment interеst. Because demand, against DOT further action paid took no following addition, Shepherd’s Shepherd payment. as a result of late secured, ultimately paid fully interest debt to DOT was DOT the interest by Shepherd its third installment exceeded and invested paid if when due would have earned the funds had been depositories. in state 13, 1985, Shepherd that Harold February
On the DOT discovered telephone conversation a record his October failed make had DOT, Mr. questioned by agent with Jack Newhard. When Mr. conversation was to ask purpose stated that the Mr. Newhard going project, he was to bid Newhard 19, 1985, Shep- February him that APAC it. On going told was bid suspended pending hearing Qualification herd’s Certificate 27, 1985, February On Prequalification before the DOT’s Committee. Certificate of Prequalification Shepherd’s revoked Committee keep Qualification Shepherd’s a récord because failure compliance being after warned that strict conversation with Newhard provisions Probationary Agreеment record-keeping required. would be matter, Transportation
After consideration of the the State reasons, decided, Shepherd’s following Board for the rescind (1) Parkway: paving contract for the of the Presidential grading project It add cost to remove would more than million $2 Shepherd, To can- project, re-let the a new contractor. obtain process cel contracting the contract would throw DOT’s entire chaos, by itself into because has 32 other DOT contracts *4 (3) contractor, mobil- joint projects. bridge Arapaho, and 12 has upon ized schedule gone relying forces and has to work a construction (4) pre- Shepherd. delay year A this at this time of project on weather; there use of the most valuable construction and would cludes re-advertised, re-bid, if the delay project substantial had be Shep- problem and re-awarded. The DOT not have a does fashion; doing timely according herd’s in a quality construction work DOT, Shepherd to the contractors we have as far is “one of best (6) Perhaps getting quality as the work of the work.” done and factor, DOT, according the most critical is the fact that concluded, DOT after an extensive investigation, the contract price by i.e., was arrived at free and open competition, there nowas rigging bid on contract.
(b) Land-transfer ordinance: Arrington Enterprises, Inc., was listed as a DBE subcontractor on the bid by Shepherd submitted for the grading paving Presidential Parkway. DBE for “Disadvantaged stands En- Business terprise.” law requires Federal that DBEs percentages receive certain federally projects. funded
Arrington Enterprises Improvement was formed when Plant Company, by owned the Shepherds, City Council asked President Arrington Marvin participate in a joint program, whereby venture Arrington would own of a construction hauling corporation 51% Shepherd would own the remaining Such an arrangement would %. thereby Shepherd assure Company available, Construction an qual- minоrity ified subcontractor requirements accordance with the the DBE program. negotiations, As result of these Arrington Enter- prises, Inc. April 27, was incorporated Arrington, 1984. Marvin Stephen Shepherd, and Shepherd James were included the initial board of directors.
In May 1984, by letter Arrington addressed to Marvin from the DOT, Arrington Enterprises conditionally was certified qualified as a DBE. Later, This July certification was withdrawn on both Arrington (Vice-President Marvin Stephen Shepherd of Plant Improvement Company) lengthy wrote letters to Commissioner More- land, urging 15, DOT, recertification. On August again, once granted conditional as a DBE Arringon certification Enterprises. 26, 1984,
On October Shepherd the DOT announced Constuction Company as the low Parkway bidder the Presidential Ar- contract. rington Enteprises was listed as DBE hauling subcontractor. subcontract Arrington Enterprises between Construc- tion Company $891,055. amount of 19,1984,
On November 24 days after was announced as bidder, apparent President, low Arrington, pre- Council sided meeting over а meeting, the Atlanta Council. At this park- considered and voted transferring ordinance city lands owned rights-of-way to the DOT for for the Presi- Parkway, dential property return for to be transferred the DOT to the for the reconstruction of Candler Park Golf Course. votes, This ordinance received nine favorable eight negative votes, one council member voting, and Council President Arring- ton abstaining. Arrington Council President announced the ordinance as having passed.
However, the ordinance should not have been announced as hav *5 City of the of the Charter of the that 2-302 ing passed, in view fact § mem of council majority the a requires vote of generally of Atlanta passage for of ordinances.5 bers Inc., Enterprises, was listed
And, stated, Arrington previously as the the DOT for submitted to a on the bid as subcontractor result, Arring President Parkway As a Council project. Presidential ordi while the land-transfer meeting the council presiding ton’s over of the of 18-2004 a violation being nance was decided constituted § any coun that provides of Section 18-2004 Atlanta Code Ordinances. interest, any in leg “private a direct or indirect” cil member who has the “shall not vote or pending before council or decision islation discuss, way considering in the any participate in against, decide or body, the matter, disclose, official records of publicly shall on the but interest, of prior any to determination the nature and extent of such that, “the failure However, provide on to goes the matter.” 18-2004 § and the any person requirements of this section comply of voting in or any person participating debate failure of to refrain from by the validity any the of action taken any matter will not affect ”6 city council. up during the November-19 After matters had been taken other meeting, brought the council’s attention council would majority not a vote and land-transfer ordinance had received Jackson, introduced the have to be revoted. Council Member Ira who ordinancе, stated, you just “I have to de- suppose revoting, instead of fails, I way. the motion is all know. clare the vote a different And present.” got majority That is all I know. You have to have a of votes stated past practice, Arrington In Council President accordance with a again, he called for revote. the ordinance could be voted deputy announcing No While clerk was objection was made. voting machines Member John Lewis asked a open, were Council full, City provides “The of in vote Section 2-302 of the Charter of Atlanta present majority required passage of of the members shall be ordinances and council except provided by (Emphasis supplied.) resolutions otherwise law.” meeting, There are 18 members the Atlanta Council. At the November all addition, present. council members were in 1982 the charter of Atlanta was question give president right any before amended so as to the council to vote on issue or Therefore, 3595-3596, any meeting. regulаr pp. or L. council at called required passage. land-transfer ordinance votes for its full, council, mayor, president any provides, council Section 18-2004 “The interest, indirect, member, any employee city private official or who has direct or any body proposed legislation pending person of which the decision before such or discuss, any way person employee, against, or in is a for or decide member or shall vote disclose, body, participate considering matter, but on the official records shall interest, prior any such the matter. The failure nature and extent of determination any any person requirements person comply and the failure of section any participating voting refrain from matter will not affect the debate or action taken council.” question. vote, On the second the ordinance received favorable eight votes, votes and unfavorable with Council Arrington President casting favorable votе. The ordinance was announced as having passed by an ll-to-8 vote. Council President Arrington subsequently changed his abstention, affirmative to an stating vote that he had voted inadvertently the confusion attempting while to turn on microphone Member Lewis’ respond to his question. The trial court found that videotape meeting supports council *6 Arrington’s President mistakenly contention that he cast his vote during the confusion of the an meeting. As to ordinance author- izing public the (c) sale property city, the 2-402 of the Charter the Atlanta provides that member of the “may” council give notice of a motion to reconsider the vote on such ordinance. Sec- (c) tion 2-402 provides further that the operate notice “shall to delay question until such motion can upon be acted at the next regular special or meeting.”7 19, 1984,
On November the land-transfer ordinance was certified as having passed by a 1984, 10-to-8 vote. On November after hav- ing received the certified City Council, оrdinance from the Atlanta Mayor Andrew Young executed a contract exchange proper- for of the ties with Mayor the DOT. Young also executed a deed conveying the parklands deed, DOT. copy and a certified of the ordi- authorizing nance conveyance, were DOT. In delivered to the ex- change, DOT Commissioner Tom Moreland executed and delivered to city quitclaim transferring property deed to be used reconstruction Candler Park Golf Course. record,
From the appears Arrington fact that Enter- prises was a DBE subcontractor on the Parkway project Presidential publicized was first on WGST radio 1984. December Commis- sioner requested Moreland Attorney Georgia that the General con- investigation. January 15,1985, duct an On the results of the investi- released, gation were which Arrington’s concluded that participation in the Parkway Presidential project constituted a conflict of interest. Arrington Enterprises then withdrew as a DBE subcontractor on thе project. plaintiffs present complaint January filed the (c) full, provides “Any give may Section 2-402 one of the member council notice any vote, having object of a motion to reconsider resolution or ordinance for its the increase city, monies, expenditure
of the authorizing indebtedness of the or the of its or the sale of any part public property city, granting of the of the or the franchise where the streets public alleys any purpose prosecution or are to be used for of the business of the applicant seeking franchise, operate delay question which notice shall until such upon regular special meeting.” motion can be acted at the next or Rulings Court’s
Trial (a) Shepherd/DOT contract, the trial of the As to the follows: ruled as court government judicial recognizes branch
The court powers decison-making the executive not intrude should its not substitute branch, rules that it should the court further “except compelling judgment reasons.” of the DOT for that desirability acknowledges of, for, that the need The court Parkway However, the is not issue this case. the Presidential Shepherd/DOT since, the time the court determines that at record-keeping into, was in violation of was entered provisions making Probationary Agreement, as in default as well restitution, there third of its installment court-ordered Shepherd/DOT “compelling for the court to void the are reasons” holding, DOT, in the exercise that the In so the court rules contract. of nonpayment ordinary care, of resti- have been aware should Shepherd; Shep- at the time the contract was awarded tution days; period public wrongfully for a of 287 had withheld funds herd and the on the less interest that the state would have earned fact “totally money paid irrelevant.” had been when due is funds Although, below, evidence of bid the court there is no found *7 Parkway project, rigging that, court concluded on the Presidential the though acting good faith, DOT abused its discretion even in DOT contract once the the in Shepherd/ Shepherd performance allowing to the continue under foregoing In this violations were discovered. Shepherd regard, opinion DOT, is a the court found the of the trustworthy trustworthy bidder, to be too contractor even if it is not a Ultimately, [a] “fine that the eco- distinction.” court concluded public outweigh against nomic factors do not policy the fact that it would be to allow to continue on the contract. regard, integrity that, of
In this latter the court “the noted practices, system preserved spite in . . whether must of costs . The be open policy particular not, to it be or in this leave the door arbi- case process. capriciousness decision-making in Such trariness and practices, department government generate involved, a of is where problems public in of the as well as dimin- the minds members ishing public public good. confidence, is enti- which is not just applied making judgment tled know what criteria are qualifiеd unqualified Thus, or certain of acts are said bidders. classes public recog- ‘against policy,’ or to be nize when the law refuses enforce tendency, ground they them, so on the have a mischievous illegality injurious apart state, or as to be to the interests of the immorality. justify question issues, the of the On these arises: Do the ends integrity negative means? The answer must be system fact, preserved. is to be Based the aforesaid of findings Department Transportation of should not have entered into the 21, 1984, of contract November and the court further finds the con- tinuing performance of Shepherd against under the public contract is policy.”
(b) ordinance, As to the superior land-transfer court found follows:
The court ruled that since the deed executed copy certified face,” the land-transfer ordinance were valid “on its the DOT a right rely upon had superior these documents. The court justified documents, found that reliance on these DOT “the has Atlanta, entered into thе contract with the has executed Atlanta, and delivered transferring property deed to the has entered contracts with Arapaho, expended money has purchase for the construction, rights-of-way, begun additional has begun has clearing expended extensive and grading, and has substan- tial The superior sums.” court concluded under these circum- stances, plaintiffs cannot equity now come into a court of challenge the of the land-transfer ordinance. Holdings
Our in Case Nos. 42126 and 1. The ordering trial court’s Shepherd/DOT rescission of the contract on public-policy grounds is inconsistent with the following statutory provisions judicial pronouncements subject. on the
OCGA Title provisions Ch. on the statutory contains the subject policy. contracts which are of public void as violative provides, OCGA 13-8-1 “A illegal contract do an immoral or § thing If severable, however, is void. part the contract is legal which is will part invalidated of the con- (a) tract illegal.” provides, which is OCGA “A 13-8-2 сontract which against policy the law cannot be enforced. Contracts deemed (1) contrary to public policy include but are not limited to: Contracts (2) tending corrupt legislation judiciary; general Contracts (3) trade; restraint oppose Contracts to evade or the revenue laws (4) contracts; country; Wagering another mainte- Contracts of champerty.”8 nance or *8 8 (b) covenant, provides, promise, agreement, understanding OCGA “A § 13-8-2 or in or construction, agreement connection or collateral to contract or relative to the alter ation, repair, building, structure, appurtenances, appliances, or maintenance of a and includ demolition,
ing moving, therewith, excavating purporting indemnify and connected to or hold promisee liability persons against damages arising bodily injury harmless out of to or damage property by resulting negligence promisee, caused or from the sole his agents unenfoceable, еmployees, against public policy or or indemnitee is and is void and provided contract, this subsection shall not affect the insurance workers’ 312 thus, have concept; “[problems amorphous is an policy”
“Public elsewhere, sources here, ascertaining the authoritative arisen as 4 judge.” the trial discretion of policy channeling public (Footnote (1970). Unconscionability 469, 480, The Offense L.Ga. Rev. that, delicate and unde- omitted.) “the it has been held Accordingly, contravening pub- as a contract void power of courts to declare fined caution, only in cases great policy lic should be exercised (40 Allen, 201 Ga. 349 Foster v. from free substantial doubt...” (161 Alexander, 57) (1946); App. 117 663 McClelland v. Ga. SE2d 397) (1968). SE2d set for the determination
Basic criteria have been
down
cannot
“A contract
public policy.
is
against
a contract
void as
whether
Assembly
the General
policy unless
contrary
public
be said to be
is
the contract
so, or
has
it
be
unless the consideration
dеclared
law,
is
contrary
or unless the
contrary
good
morals
agree
an
or immoral
effecting
illegal
purpose
entered into for the
Camp v. Aetna
of law.
something
or
is in violation
doing
ment
which
41)
(152
(1929);
v. Five Points
Brown
Co.,
50
SE
Ins.
170 Ga.
901)
(175
(1970)].” Porubi
SE2d
Parking Ctr.,
App.
821
Ga.
[121
163)
(275
602, 603
SE2d
ansky
Emory University,
App.
156 Ga.
v.
Porubiansky,
313 enforced, tory will not be contract which has illegal been executed (26 Quinton 435) will be Millican, left to stand. v. Ga. 175 196 SE2d (1943); Faulkner, (114 542) (1960). v. 101 App. Jones Ga. 547 SE2d predicated This rule is also parties illegal the idea that both to an pari However, contract are considered to be in delicto. the par- when delicto, pari ties are not in party case where one to an other- , wise valid contract has defrauded the the rule here is party, other contract, void, that fraud renders the but voidable at the elec- 13-5-5; tion of party. Reese, v. injured OCGA Puckett 203 Ga. § (48 297) (1948); Co., 716 SE2d v. Ragsdale Brown Motor Ga. App. 65 (16 176) (1941). situation, SE2d In this the injured party has the contract, election either to rescind the or to affirm it and sue for dam- Reese, ages. supra; Co., Puckett v. v. Ragsdale Brown Motor supra. Shepherd/DOT illegal does not have an immoral or consideration, the contract was not entered purpose into effecting an illegal purpose, immoral or and it is not one of the con contrary (a). tracts deemed public policy Shep 13-8-2 § product contract was of Shepherd’s not the herd/DOT violations the court-ordered provisions restitution and the record-keeping Probationary And, Agreement. Shepherd’s bidder, qualification as a contractor, as well as projects DOT wаs not conditioned upon com pliance with Probationary the DOT’s Agreement or the court-ordered restitution-payment court, schedule. As found the trial the DOT is guilty DOT, of no It wrongdoing.10 is thus the Fulton not the Court, Superior represents which the interests of the state in this in stance, the DOT complains of the action of the court in order ing Shepherd/DOT that reasons, contract be For rescinded. these we conclude that under legal previously cited, authorities the trial court was not authorized to order the re Shepherd/DOT contract scinded on the ground public policy. violates Shepherd/DOT product If the contract had been the collusion between DOT, conspired and the this would be a far different case. If had with other con rig contract, tractors the bids on this it would also be a far different case. (a) (5) empowers “any person” OCGA 32-2-2 § the DOT to enter into contracts with for, among things, any public other the construction or maintenance of “in road such manner subject express may provided by requires to such limitations as be law.” Section 32-2-60 writing project, provi DOT construction contracts to and to include “as a cost of the sowing vegetation, cuts, appropriate, banks, fills, ditches, places sions for on all and other likely necessary along right where soil erosion is to result from incidents road work (d) (1) way project.” require of the road Sections 32-2-61 and 32-2-64 the DOT adver bids, public public-road expen involving tise for construction and maintenance contracts — $5,000 more, (A) (D) exceptions diture of with certain listed in subsections of 32-2-61 (d) (1). provides, OCGA § 32-2-69 “The shall award the contract to the lowest reliable [DOT] bidders, provided bidder where at least two or more bids been have received reliable right reject right the DOT shall have the and all such bids whether such is re and, public case, readvertise, may perform served or not notice such [DOT] itself, project.” work or abandon the DOT abused that the ruling court’s the trial
2. We
sustain
cannot
contract.
Shepherd/DOT
tо rescind the
failing
its discretion
func
exercising
officials
“It
that state executive
has been held
reached
powers cannot be
discretionary
they
tions in which
have
191)
Lowe,
v.
3. In our
conviction for bid
Probationary
of
greater degree
culpability
of
its violations
than
Therefore,
if the trial
Agreement
restitution.
and the court-ordered
rescinded
Shepherd/DOT
court were authorized
order
a result of the
public-policy
grounds
on
as
and abuse-of-discretion
violations,
necessarily
court
follow that
trial
latter
it would
two
the DOT and
invalidate all contracts between
would be authorized to
rigging.
of bid
contractors convicted
Shepherd, as well
other
Holdings
No. 42191
Our
in Case
the transfer of land from
plaintiffs
4. The
in this case attacked
vires,
“arbitrary, capricious, ultra
DOT as
City
of Atlanta
standing
found
based
The trial court
illegal, and unconstitutional.”
City
v.
County
League
Voters Atlanta-Fulton
Women
of
860) (1980).
859,
affirm
Atlantа,
SE2d
We
303
Although Chipstead, supra,
municipal
can be sued for a manifest
officials
holds
Co.,
(5).
p.
discretion,
supra,
in Lewis Motor
approvingly
at
abuse of
was cited
Atlanta,
v. Mayor
(1871),
under Wells
&c.
standing,
“Because of his potential in Shepherd’s financial interest appar- bid, ent low Marvin Arrington’s presiding over the November meeting of the contrary to Section 18-2004 of the Ordinances, Atlanta Code of which provides: mayor, presi- ‘The council, dent of any member, council employee city official or of the who a private interest, indirect, has direct or in any proposed legisla- or any tion pending decision person body before such or the which person is a employee, member or shall not against, vote for or discuss, any way pаrticipate matter, decide or considering disclose, but publicly shall body, the official records the na- interest, ture and extent of such prior any determination any matter. The failure of person requirements to comply with of this section any and the person failure to refrain from participating any debate voting matter will not affect the ac- ” tion 9). taken (Order, council.’ p. This finding of fact the trial judge supported by the *11 evidence.
6. Notwithstanding, the trial court refused to invalidate the ordi- nance transfer, and the land and held that title had in the vested DOT.
It is true
prohibiting
that
pro-
ordinance
conflicts of interest
vides that such will
city
not invalidate
action of the
council. How-
ever,
legal
effect
of
conflict
must
determined
laws of
application
cannot,
course,
statewide
which
city
of
be inhibited
a
(134
Montgomery
City Atlanta,
ordinance.
v.
See
planning rezoning concerned the commission which meeting, which a recommendation preside did not over a second at Further, application adopted. ordinance favorable was body, rezoning by a discrete adopted which effected the council.
(b)
Popham, supra,
Wyman
2 of
holds:
Division
remaining
in their
arguments
appellants
“One of the
make
they
by ruling
erred
had failed
enumerations is that the trial court
members of
carry
burden to demonstrate that
the votes of two
their
fi-
by their
three-person
were influenced
board of commissioners
testimony at trial
rezoning.
nancial
interest
There was
*12
is
of
Popham,
developer,
is a real
a customer
the two com-
who
estate
and,
him
missioners,
one of the
sells
particular,
in
that
commissioners
business,
other
all of
all
he uses in his
and that
does
of the sand
Popham’s
ize
not
court
fraud and
require
but
evidence,
and re-
and we reverse
preponderance
tion
mand for
of
in
reconsideration
issue
accordance with this
standard.”
Note that in both of these cases we held that the evidence was sufficient to create an of issue fact as to fraud In corruption. us, fact, case before found, the trial court has as a the existence aof conflict of interest.
(c)
Olley Valley Estates,
Fussell,
See also
Inc. v.
8.
analysis
From
cases,
of these later
of our earlier authorities as
enumerated in Montgomery v. City
Atlanta,
of
supra, and
our
of
holding
Covington,
842)
Trainer v.
Absent countervailing finding the trial court’s of a con- flict of interest demands the invalidation of the ordinance.
10. The infirmity DOT insists that we have discussed should transaction, serve to vitiate the rely inasmuch as it was entitled upon the ordinance and the deed.
Here, too,
disagree.
we must
record shows that
mid-1984
the DOT and
engaged
its Commissioner
correspondence
extensive
fully
and with Arrington,
Arring-
were
aware
legislative
municipal
traditionally
governing
Judicial
review of the
acts of
authorities
judicial
Assembly. Compare
has been more intense than
review
the acts of the General
Columbus,
(2) (6
Great Atlantic &c. Tea Co. v.
(1939),
11. the trial court should have Accordingly, deed, portion and that the upon the land transfer ordinance and must It should ground relief be reversed. denying the order ac- free to take such noted, however, council is now — disposition of the lands possible fit tion as it sees relative course, subject, procedures. to lawful reversed. All the Jus-
Judgment in Case Nos. 42126 and 42127 All the Justices Judgment in Case No. 42191 reversed. tices concur. Marshall, J., concur, P. who dissents. except Justice, concurring. Chief Hill, point I out an addi- opinion
I of the court. write to concur Shepherd appeal. trial court aspect of Case No. tional because, at time it to be void Shepherd/DOT contract found into, record-keeping Shepherd wаs in violation of the was entered making Probationary Agreement default provisions However, the third of the court-ordered restitution. installment DOT Shepherd, and Probationary Agreement was between DOT and provisions. on, waive, record-keeping could insist court-ordered, not court order did The restitution was but that payments, pre- restitution would provide timely that failure to make In ef- into other contracts with DOT. entering clude fect, retro- voiding Shepherd/DOT trial court’s order Shepherd’s probation, actively added conditions court-ordered Probationary required by your Agree- will keep wit: You records as time; DOT; payments on you ment will make restitution so, into with DOT will be you fail to do contracts entered void. may probation, A to court-ordered make court not add conditions then conditions apply retroactively, find that such such conditions impose sanctions for their breach. See complied were not with and (246 302) (1978); England v. SE2d McLarty, v. Huff 787) (1977); State, Newton, v. 162 Ga. Ga. 534 SE2d Harrell (1982). App. SE2d reasоn, I join judgment Case No.
For this additional probation. As for No. DOT was Case Justice, Presiding dissenting part. Marshall, Dunaway Marietta, In primary reliance Ga. 727 823) (1983) majority strikes down the Atlanta ordi- transferring parklands nance to the DOT to be as rights-of-way used down, Parkway. the Presidential ordinance is struck because presided Arrington meeting President over the council while consideration, and, time, ordinance was under at Arrington was a Shepherd’s subcontractor on contract with the DOT for *14 grading paving parkway.
In Dunaway, we dealt in with a situation which the chairman a city planning presided meeting commission over a a at which certain application initially considered, for rezoning application was and the rezoning corporation was filed of which the chairman was an officer. The chairman did vote on rezoning application, not the and he testified that he relationship disclosed his to the rezoning applicant other council members with whom he spoke. complainant charged that the chairman lobbied council members to the rezone We property. held that issue of fact was raised toas whether the chairman’s conflict of approval interest tainted the of the rezoning Thus, application. Dunaway the conflict of in egregious. interest was The conflict of interest this case is attenuated and indirect. There- fore, readily on its Dunaway distinguishable facts from this case.
Nonetheless,
there is a line
body
of cases which the governing
of municipality
contracted with one of its members for the rendition
for,
to,
services
goods
or the sale of
Trainer v.
municipality.
842) (1937);
City
Covington,
Montgomery
These cases do condemn a contract awarded municipal However, council to one of its members. all complainants cases nonetheless in equity held that the could not have contracting they restored the void unless declared those contracts contract, where entry into the occupied prior party position to the money expended position his party changed had contracting prin- of this universal It is a combination on the contract. reliance essence, which, in constitutes the ba- of laches ciple and the doctrine equitable relief here. superior court’s denial of sis for the Arrington DOT knew that majority holds that since the party an innocent project, it was not parkway on the a subcontractor land-transfer ordi- rely apparent on the entitled to ordinance, accompanied However, which authorized nance. DOT, Ar- expressly that to the stated transferring the land the deed opines The majority ordinance. rington voting from on the abstained “is free take such action as now that the Atlanta lands, disposition of possible fit in the future relative to sees course, under the ma- procedures.” Apparently, subject, of to lawful view, presiding from over the coun- Arrington had abstained jority’s consideration, well as was under meeting cil while the ordinance prin- would be valid. Under venerable voting, from the ordinance faithfully discharge public officials will ciple presumed it is that law, Peeples, Truluck v. compliance their duties (1846), the DOT was not on constructive notice it would seem which, as president perform duty, his the council would fail to pre- him opinion, was for to have abstained majority held voting. council as well as from siding meeting over the respectfully I therefore dissent. *15 — April 23, Decided
Rehearings May May 1985. and denied General, Jr., Bowers, Attorney Googe, P. Ex- James Michael J. General, Gordon, Attorney Marion 0. First Assis- ecutive Assistant General, Matson, Attorney Joy, F. C. Senior tant Roland William Richards, Attorneys General, Charles Assistant Attor- M. Assistant Martin, General, General, Attorney ney Beverly B. Assistant Staff (case 42126). no. appellants for II, Hubert, Edwards, & Fred Orr N. Orr W. for Richard appellees. Stewart, Flint, Flint,
Schreeder, Lynn H. C. Wheeler & David (case 42127). appellants no. for Hubert, appellees.
Richard N. for II, Hubert, Edwards, Ferguson & Orr & W. Fred Orr Richard N. 42191). (case Dorn, Dorn, Sally appellants A. for no. Brooks, Smith, Coop- E. Overtis Hicks
Marva Jones Kendric wood, appellees. for Smith, Jr., Ches- Bird, Rampacek, & Anne S. Sidney
Alston Chesnut, David Livingston, nut & J. amici curiae. EQUIPMENT
41777. FRED CHENOWETH COMPANY v. OCULUS CORPORATION. SE2d Justice.
Gregory, granted We certiorari to review Ap- Division Court of peals opinion in Corp. Co., Oculus v. Fred Equipment Chenoweth 836) (1984). App. SE2d Division 3 held the trial court by entеring judgment against Corporation erred final (Oculus), Oculus defendants, one of pending three while the action remained against the other two. We reverse.
Deepwater (Deepwater) Turneo general was the contractor Ferry Hydroelectric Project Bartletts’ to construct a dam across River on Chattahoochee land owned Georgia Company Power Power). (Georgia Oculus was a equip- subcontractor which obtained ment and materials from Fred Equipment Company Chenoweth (Chenoweth). Chenoweth pay claimed Oculus failed to bill for equipment and materials and against therefore filed a lien the real of Georgia estate To Deepwater, Power. remove the lien along with its surety, Casualty (Aetna), The Aetna Surety Company substituted which, amended, a bond. Chenoweth then filed in- suit claimed an $61,987.89 against debtedness of the three defendants. Oculus was al- leged contract, be liable on its Deepwater and Aetna on the timely bond. Oculus failed answer the complaint the trial court $61,987.89 judgment entered default plus against interest Oculus. The judgment expressly appeal declared to be final and subject under OCGA (“Judgments rulings directly ap- 5-6-34. deemed § . . pealable opposed .” as applica- OCGA 5-6-35. “Cases which .”) appeal required part tion for . . appealed Oculus and this trial court’s judgment Appeals. was reversed the Court of
In reversing Appeals the trial court the Court relied on the principle prior opinion found its in Stasco Mechanical Contractors Williamson, 127) (1981). App. 157 Ga. . “If . . alleged liability joint a default judgment should not entered against a defaulting defendant until all of the defendants have de- faulted; then, or if one general proposi- or more do not default as a *16 tion, entry judgment should await liabil- adjudication to the ity defendant(s). If non-defaulting liability is decided joint against defending party plaintiff the plaintiff, favor of — then to a judgment against entitled all of the defendants both defaulting non-defaulting joint liability If is decided defendants. against the plaintiff present on the merits or has no right that he