173 Ga. 386 | Ga. | 1931
Dissenting Opinion
dissenting. I am compelled to dissent from the ruling of the majority in this case, for the reasons which I now state. The first ground of defense appearing 'in the amended plea
*389 “Culvert Pipe Order Form to The Austin-Western Road Machinery Company, Chicago.
“$7,350.00. December 24th, 1924.
“Please ship to J. D. Taylor, at Alma, County of Bacon, State of Georgia, on or about at once, via. A. B. & A. R. R.” Then follow the number of culverts ordered, the diameter, gauge, length in feet, kind of pipe, and the amounts of the purchase-price of each pipe. After this follows this agreement: “We hereby agree to receive the above pipe and accept the same subject to the guarantee on the back of this order, and agree to the following terms of settlement. Will give warrants first meeting after culverts arrive, same to bear interest at 7% until paid.
“Signed on behalf of Bacon County. Official Title:
“ Signature: J. D. Taylor, Ordinary and Chairman,
“AO-2287. From factory by freight. Alma, Ga.
“Send bill to J. D. Taylor, Ord. and Chr., Alma, Ga.”
On the back of this order appears the following:
“Guarantee. The goods specified on the reverse side of this order are guaranteed to be thoroughly serviceable and practical for the purpose for which they are designed. If found defective in either material or workmanship, we agree to replace such defective parts free of charge f. o. b. factory. Claims for defective parts must be made within one year from date of sale.
[Signed] The Austin-Western Road Machinery Co.”
. The shipment of the material was in accordance with this order and acceptance. This amounted merely to a sale and purchase, and did not amount to a contract such as contemplated in section 386 of the Code; and the failure to enter it on the minutes did not render the same illegal, nor render the warrants for the consideration illegal. The warrant for $7,350.00 was duly issued, and was then divided into small warrants. It is stipulated that all the warrants bear interest at 7%. The court was authorized to find, in view of the amount that could be raised by special taxation for county purposes, that this was not the creation of a debt.
In the years 1924 and 1925 the county commissioners did not levy any tax for road purposes or for paying the salaries and wages, or for working, improving, and repairing the roads of Bacon County. If the taxes had been levied in those years, the QQiirt might have held th?t there would haye been no deficiency
Lead Opinion
Austin-Western Boad Machinery Company brought mandamus proceedings against J. W. Douglas as chairman of the board of commissioners of roads and revenues of Bacon County, and all the other members thereof, to compel the levying of an extra or special tax to pay certain county warrants which had been issued to petitioner during the month of March, 1925, by a board of commissioners whose members at the time of the institution of this proceeding had gone out of office. Douglas and the other members of the board filed their demurrers, plea, and answer. At the hearing the respondents amended their plea and answer. After considering the case, the court overruled the demurrer, and made the mandamus absolute; and the respondents excepted.
This court is of the opinion that, under the facts alleged, the purchase, by the commissioners of roads and revenues from Austin-Western Boad Machinery Company, of certain material necessary to road building was such a contract as must be entered on the minutes of the commissioners, under the Civil Code, § 386. It is admitted that the contract was not entered as required by this section. Consequently the issuance of the warrants to pay off the purchase-price of the material was illegal, and the court was not authorized to issue a mandamus absolute, under which the commissioners are required to raise by taxation such specified amount annually as will finally pay the claim of the Boad Machinery Company. • That ruling was, of course, a fundamental error and requires a reversal of the judgment.
Judgment reversed.