92 Ga. 804 | Ga. | 1894
Lewis et al., citizens and tax-payers of Macon county, brought their action against the commissioners of roads and revenues of that county, to enjoin them from proceeding fui’ther under a contract entered into on October 3d, 1893, by said commissioners with Wallen & Company of Alabama, as contractors, for the building of a new court-house for the county, petitioners alleging that the contract is in violation of paragraph 1 of section 7, art. 7 of the constitution (Code, §5191), in that it creates
We fully concur in this view. The constitutional provision referred to forbids any county to incur a debt without first submitting the matter to a popular vote, “ except for a temporary loan or loans to supply casual deficiencies of revenue, not to exceed one fifth of one per centum of the assessed value of taxable property therein.” The contract as it originally stood was clearly a contract to create a debt; and it requires little argument to demonstrate that if modified so as to conform to the judge’s order, it would still be a contract to create a debt. The order does not contemplate that the building shall be paid for out of funds in hand and taxes levied during the year of the contract. The contract fixes a certain price for the building, and the order contemplates that the sum contracted for shall be paid hv means of annual levies to be made during several successive years. The contract price, as we have seen, was $19,000; the fund in the treasury levied in former year’s for public buildings amounted to about $600, and public property which could be sold to meet this expense was valued at $3,000. It would therefore be ne’cessary, in order to pay the contract price, to raise from other sources an additional sum of about $15,400. An annual levy of one fifth of one per cent., as allowed by the judge’s order, would amount to about $4,000, the assessed value of taxable property in the county.being about $2,000,000. So it would require several annual levies to meet the obligation imposed by the contract. It was argued that if both parties to the contract keep the covenants thereof, no debt would arise; that a debt would exist only on default of payment by the county. In our opinion, a sum of money due by certain and express agreement is a debt, within the meaning of this provision of the constitution; and the fact that it is
It is due, however, to the learned judge who granted this order, to say that it conforms to a direction by the court in the case of Butts v. Little, 68 Ga. 272. In that case the contract in question was similar to the one before us, and the Supreme Court, reversing the judgment of the court below, held the contract void, but directed that if the liability to be incurred should be so arranged as not to exceed one fifth of one per cent, annually on the assessed value of the taxable property of the county, the judgment should stand affirmed. In the present case counsel for the plaintiff in error asked leave to review that decision, in so far as it authorized a contract of this kind; and leave was granted, as provided by the code. Upon a review of the case we are satisfied that the direction referred to was erroneous, and to that extent the decision then made is overruled. In other respects that decision is sound, and the reasoning of the court sustains the conclusion announced in the present case. The direction allowing the modification of the
There are two ways in which funds- may be raised by the county authorities for the erection of public buildings; one is by taxation, the other by creating a debt authorized by a popular vote as required by the constitution. Whenever the necessity arises, the county authorities, under section 502 of the code, have the power to levy an extra tax for this purpose, and may do so without a recommendation of the grand jury; and under section 503, if they fail to erect and repair county buildings when necessary, or to levy the tax provided for in section 502, or levy an exorbitant tax, or levy one when unnecessary, their conduct may be reviewed by the judge of the superior court, by mandamus or injunction as the nature of the case may require, at the instance of any tax-payer of the county. We see no reason, therefore, why the county authorities in this case may not levy a sufficient tax in one year to pay for the erection of a court-house, if the tax be not exorbitant; and if they can do this, no reason now occurs to us why they can
While it may not necessarily be error to deny an injunction restraining the county authorities from incurring a debt which they have no power to create, yet where the judge expressly authorizes the making of an unconstitutional contract in lieu of the one he has enjoined, his decision, to this extent, should be overruled; and the judgment in this ease is Reversed accordingly.
Cited for plaintiffs in error: 64 Ga. 286 ; Id. 498 ; 67 Ga. 106 ; Id. 293; 74 Ga. 845 ; 84 Ga. 213; Id. 681; 89 Ga. 683.
Cited for defendants in error: 68 Ga. 277; 64 Ga. 498; Id. 286; 67 Ga. 106; 84 Ga. 681; 89 Ga. 683; 49 Am. Rep. 416 ; 88 Ind. 473 ; 27 Iowa, 227; 36 Iowa, 393; 42 Iowa, 614; 49 Iowa, 58; 98 Ill. 415 ; 17 N. Y. 110, 458; 1 Mass. 471; 37 Cal. 524; 15 Cal. 429; 27 Cal. 175; 1 Dill. Mun. Cor. §§88, 135.