131 Ga. 614 | Ga. | 1908
(After stating the foregoing facts.)
“All official duties should be faithfully fulfilled, and whenever, from any cause, a defect of legal justice would ensue from a failure or improper fulfillment, the writ of mandamus may issue to compel a due performance, if there be no other specific legal remedy for the legal rights.” Civil Code, §4867. Was there a legal duty on the part of the ordinary to enter on his minutes the contract for the building of the court-house, and the order given by the contractor to the bank, and his acceptance thereof? If so, would there, from any cause, ensue a defect of legal justice from a failure or improper fulfillment of this official duty? If so, did the applicant for the writ of mandamus have such an interest in the subject-matter as to authorize it to institute the proceeding? And finally, was there any other specific legal remedy? First we will consider the questions in relation to the contract between the ordinary on behalf of the county, and the contractor, and’ after-wards we will refer separately to the question of entry on the minutes of the order given by the contractor to the bank and its acceptance by the ordinary.
Had the applicant such an interest as authorized it to institute the proceeding? The bank furnished money to the contractor for the purpose of carrying out the contract. It has received from him an order for the delivery to’ it of the warrants for the unpaid amount which may be due. According to the- allegations of the petition, it will be the real beneficiary of whatever may be paid on
It has been suggested that the object of the law in requiring an entry of such contracts on the minutes is to give information easily accessible to the public as to the character of contracts being made by the county authorities. If it be a right on the part of the citizens to have the ordinary record contracts made by him for public information, possibly any citizen, or at least any taxpayer, might enforce that duty.
It is patent that there is no other legal remedy, if the ordinary should have recorded the contract, but failed to do so, and refused to make the record upon demand.
It is contended, that, under the statutory requirement that the contract made-by the ordinary on behalf of the county should be in writing and entered on the minutes, a failure to so record it rendered it absolutely void; and that therefore its recording at a subsequent time should not be compelled by mandamus, on the ground that the writ will not be granted when, for any cause, it would be nugatory or fruitless. The point in controversy here is whether the contract shall now be entered on the minutes. It is not necessary to decide what effect such entry will have, or as to whether the contract would then be valid or enforceable. In Milburn v. Commissioners of Glynn County, 109 Ga. 473 (34 S. E. 848), 112 Ga. 160 (37 S. E. 178), a suit was brought on a contract against a county, and a demurrer was sustained on the ground that it was not alleged that the contract was entered on the minutes of the proper authorities in charge' of the financial
We might rest the case upon that decision, but as it was concurred in by five Justices, and therefore does not fall within the statutory provision making a decision by the entire bench binding until formally reviewed and modified or overruled, it’ has been deemed best to consider the case in addition to the mere citation of that authority. We are of the opinion that the ruling there made is sound. The respondent here sets up, as reasons against the grant of the writ, certain matters affecting the merits of the controversy, as if suit had been brought on the contract. But without regard to whether such contentions would have any force in such a suit, the plaintiff is prevented from reaching that stage of his case at all, because the contract is not recorded. See People v. Contracting Board, 46 Barb. (N. Y.) 354. Counsel for defendant in error have in their brief thus strongly presented their contention on this subject: “The fact that this contract is not entered upon the minutes is not a defense that goes to the real issue as to whether or not the contract has been complied with, and Forsyth County actually owes this money,,but is one that simply cuts off all inquiry upon the question and closes the doors of the court against the ascertainment of the truth.”
All the Justices concur in holding, that the mandamus absolute
When the case between these parties was formerly before the court (Jones v. Bank of Cumming, already referred to) there was a petition for mandamus to compel the ordinary to issue the warrant in favor of the contractor and deliver it to the bank. A demurrer was interposed which raised the point, among others, that it was not alleged that either the building contract or the order and acceptance were entered on the minutes. The demurrer was overruled, and the respondent excepted. Under former decisions the failure to allege the entry of the building contract rendered the petition demurrable. In the opinion no distinction was mentioned between the building contract authorized by law and the acceptance of the ordinary, which was not authorized by law. In the headnote and the opinion it was said that the petition “was subject to the ground of a demurrer that set up that
In State v. Southwestern Railroad, 66 Ga. 403, the want of authority on the part of the attorney-general to make, a compromise was considered as one ground for reopening a written settlement made by him, and not allowing it to be entered as the judgment of the court.' See also Political Code, §268; Penitentiary Co. v. Gordan, 85 Ga. 159, 171 (11 S. E. 854); Town of Wadley v. Lancaster, 124 Ga. 354 (52 S. E. 335); Mechem on Public Officers, §924; Day Land and Cattle Co. v. State, 68 Texas, 526 (22), (4 S. W. 865).
The judgment making the mandamus absolute is affirmed as to the building contract; but with direction that it be modified so as not to include the order given by the contractor to the ordinary and his acceptance thereof.
Judgment affirmed, with direction.