159 Ga. 856 | Ga. | 1925
Lead Opinion
The questions raised by the demurrers, as well as the errors complained of on the trial, are so intimately connected as to be practically indivisible. We shall treat-them together, for they are thus argued by counsel for both sides. Counsel for defendant, in their brief state: “The questions involved, broadly stated, are three. First, was the bond taken such an one as the act of 1916 required? Second, was mandamus the proper remedy.in the ease at bar? Third, mandamus being the proper remedy and
Was the bond such as the act of 1916 required? There can be no question that this inquiry must be answered in the negative. Section 1 of the act of 1916, so far as relates to the nature of bonds required thereby, is as follows: “No contract with this State, a county, municipal corporation, or any other public board or body thereof, for the doing of any public work, shall be valid for any purpose, unless the contractor shall give bond, payable to the State or other body contracted with, with good and sufficient surety, for the use of the obligee and of all persons doing worlc or furnishing shill, tools, machinery, or materials under or for the purpose of such contract, conditioned for the completion of the contract in accordance with its terms, for saving the obligee free from all costs and charges that may accrue on account of the doing of the work specified, for the payments as they become due of all just claims for work, tools, machinery, skill, and materials furnished by persons under, or for the purpose of, such contract, and for a com-pliance with the laws appertaining thereto.” This court, in American Surety Co. v. Small Quarries Co., 157 Ga. 33 (120 S. E. 617), ruled: “Where a bond was given by a contractor for the doing of public work, payable to a county of this State, with a compensated bonding company as surety, in such terms as are stated in the question propounded by the Court of Appeals, one who furnished materials to the contractor to be used, and which were used, in the performance of his contract with the county can not maintain an action therefor in his own name against the principal and' surety on the bond, by virtue of the provisions of the act approved August 19,1916 (6a. Laws 1916, p. 94).” In the case before us, as in that cited, the italicized words were omitted from the bond; and hence the provisions of sections two and four of the act of August 19,1916 (6a. Laws 1916, p. 94), as applicable to the requirements of section 1, especially where the facts are identical, have already been construed by this court. In delivering the opinion of the court in the case cited, Mr. Justice 6ilbert said: “We think that the omission of the language italicized above from the face of the bond constituted a substantial variance from the 'manner and form’ required under the act of 1916. Construing the bond strictly, as we
The second question, which is whether mandamus was the proper remedy, is not so easily answered, if we consider all of the expressions contained in the various rulings of the courts in deciding various phases of the matter in the many decisions which have been delivered as to the propriety of proceeding by mandamus in particular cases. However, there are certain general principles with regard to mandamus which are universally recognized. Mandamus is a drastic remedy. In general it applies only to public officers, and is available only when there is no other remedy. Mandamus can not be applied as a remedy to compel an act not authorized by law. Mandamus will not be granted where the absence of the right would render the proceeding nugatory. Some of the principles which must control the question as to whether mandamus was applicable as a remedy in the present case have'been distinctly ruled by this court. In Powell v. Hall Hardware Co., 156 Ga. 614 (119 S. E. 595), we held that where there was no proof that the school district was one in which the levy of a local school tax was authorized, it was error to grant a.mandamus absolute to compel the levy of a tax under section 129 of the code of school laws (Acts 1919, p. 341)., In the present case there is no allegation or proof that the Eaceville School District of Decatur County is one which is authorized by law to levy a local school tax. In the case of Powell, supra, the court unanimously held that the levy of a tax was not involved or passed upon in the case of Ty Ty Consolidated School District v. Colquitt Lumber Co., 153 Ga. 426 (112 S. E. 561), inasmuch as it was not a proceeding by rria.urla.Trms to compel the levy of a tax. Hnder the rulings in this case we are of the opinion that the court erred in not sustaining the demurrer, and also erred in making the mandamus absolute.
The third question assumes mandamus to be the proper remedy, and that the petition set out a case requiring the issuance of the writ; and hence, in view of our holding as to the second question propounded by the defendant in error, the question becomes irrelevant and immaterial in the decision of the case sub ¡judice. For the protection of those who may furnish “skill, tools,
Mandamus can not compel a public officer to do any act upon the assumption that the performance of the act which he is commanded to do is a public duty. Consequently, in an action brought to compel by mandamus trustees of a.district school to levy a tax, it must be plainly and distinctly alleged and proved that the school district in and for which said trustees has been chosen is a local district in which the levy of the local tax sought to be enforced by mandamus is authorized by law. It is strongly insisted, however, that for every wrong the law supplies a remedjo The writer concedes this beneficent proposition to the utmost limit. The law should and does afford a redress for every wrong, even going so far as to pro
Dissenting Opinion
dissenting. I dissent from the ruling made in the first division of the opinion, for the reasons assigned in my dissenting opinion in American Surety Co. v. Small Quarries Co., 157 Ga. 33. Reflection since that dissent confirms me in its correctness.
