This appeal is from an order of DeKalb Superior Court denying relief to plaintiffs who sought an injunction and mandamus against the Board of Commissioners and various officials of DeKalb County. Plaintiffs are all residents of South DeKalb and filed this litigation on behalf of themselves and others similarly situated. The dispute which engendered the lawsuit involves the county’s choice of a site in South DeKalb for a solid waste disposal landfill. After a hearing, the trial court declined to issue an interlocutory injunction and ruled that the plaintiffs were not entitled to a writ of mandamus. We affirm, as we find no reversible error.
The facts, in brief, are these: When it became apparent that renovation of the county incinerator to meet environmental protection standards was not economically feasible, and that existing county landfills were not adequate, the board of commissioners appointed a citizens task force to study proposed solid waste disposal sites. The task force considered 71 locations and recommended the selection of one South DeKalb site. A public hearing on the matter was held by the commission. Notice of the hearing was published in the county newspaper. After the hearing the commission approved the recommendation of the task force and directed the acquisition of the South DeKalb site and the closing of other landfill operations in the county. The expenditure of certain bond funds was authorized by the commissioners
I.
Plaintiffs cite as error in enumeration No. 2 the denial by the trial court of their application for a writ of mandamus. They argue that the writ should have issued requiring the board of commissioners to use certain 1970 general obligation bond funds for the projects approved in the bond election and not for the acquisition of the South DeKalb landfill site. Before a writ of mandamus will issue there must exist a legal duty the performance of which is required.
Bedingfield v. Adams,
The 1970 bond issue approved $6,080,000 for expenditure, as follows: (a) $1,580,000 for a new kiln at the existing incinerator; (b) $1,500,000 for pollution control at the incinerator; (c) $3,000,000 for waste disposal facilities. On March 9, 1976, the board of commissioners directed the acquisition of the South DeKalb landfill site and appropriated for this use $931,504 from the 1970 bond issue and $912,980 from accrued interest earned on these funds. The appropriation was approved by a majority of the board.
Counties have consistently been prohibited from using bond funds approved for a particular purpose for another and different purpose. See
Luther v. DeKalb County,
"The governing body in such counties may, by a two-thirds vote, declare any project which has been established pursuant to any such statement of intention to be unnecessary. The governing body of such counties may, by a two-thirds vote, transfer funds allocated from projects declared to be unnecessary to other projects encompassed within the language of the statement of purpose in the election notice.” Ga. L. 1968, p. 1007 at 1009. Similarly, accumulated interest earned on bond funds may be transferred in accordance with these guidelines. Ga. L. 1968, p. 1007 at 1009.
The plaintiffs argue that this statute does not apply in this instance because the 1968 law was superseded by Ga. L. 1976, p. 1091 at 1093, which limits the use of funds approved for projects declared to be unnecessary to the reduction of bonded indebtedness. This statute became effective on March 31,1976. Plaintiffs argue that the 1976 statute applies to any bond issue which was not transferred before March 31, 1976. The defendants contend that it applies only to bonds authorized and issued after March 31,1976. We need not decide this issue because the trial judge correctly determined that all actions required by the 1968 statute to transfer bond funds and accumulated interest were accomplished before the effective date of the 1976 law.
The official minutes of the board of commissioners meeting of August 22, 1972, reflect that the incinerator kiln project was declared to be unnecessary. Pursuant to this finding the board unanimously transferred $1,580,000 from this project to other solid waste disposal facilities, including landfills. These funds, plus accrued interest, were the source of the appropriations made by the board at its March 9, 1976, meeting. This appropriation was approved by a two-thirds vote of the board of commissioners.
The decisive question then is whether the use of
II.
Plaintiffs cite as error in enumeration No. 1 the failure of the trial court to grant an interlocutory injunction to enjoin the acquisition of the selected South DeKalb site. The trial judge concluded that an injunction would require a showing of gross abuse of discretion by the defendants in the selection of the site or a failure to comply with the law in this regard, or a violation of the plaintiffs’ constitutional rights. None of these abuses was found by the trial court and no error is shown in his ruling.
A county may exercise only those powers authorized by statute.
DeKalb County v. Atlanta Gas Light Co.,
It is clear that the DeKalb County Board of Commissioners was acting within its authority in selecting a solid waste disposal site. Constitution of Ga. of 1945, Art. XI, Sec. I, Par. I (Code Ann. § 2-7801) (Rev. 1973);Art.XI,Sec. Ill, Par. I (Code Ann. § 2-7901a(2)(Rev. 1973). Therefore, to enjoin the board action in this case plaintiffs were required to show an abuse of discretion or a constitutional violation.
Plaintiffs complain that the defendants abused their discretion in several ways: (1) by directing the county to
Plaintiff s first contention is without merit. We have decided in Division 1 that funding was available for the purchase of the landfill site and was properly appropriated for this purpose. Plaintiffs’ second contention is also without merit. The trial court found, and the record supports the finding, that there was no abuse of discretion in the selection of the South DeKalb site as the location for the landfill.
Plaintiffs also argue that the use of the bond funds would he waste and that such action should be enjoined. The record does not support this contention. There is no evidence that the defendants’ action was ultra vires, or fraudulent and corrupt (see
Mathews v. Darby,
Plaintiffs also contend that the defendants, through their selection of the South DeKalb site, unlawfully bound successor boards and thus have prevented free legislation in contravention of Code Ann. § 69-202 (Rev. 1967). It is true that a county commission cannot limit its successors in the exercise of legislative power.
Barton v. Atkinson,
Plaintiffs also argue that defendants abused their discretion by unlawfully delegating the board’s authority to the citizens task force. Their argument is that in approving the recommendation of the task force, the board abrogated its legislative power. This contention is without merit. The ultimate power to select the landfill site rested with the board of commissioners as the governing body of DeKalb County. As this court held in
Kellett v. Fulton County,
The plaintiffs next raise several constitutional issues. First, they contend that they were denied due process of law because they were not accorded
personal notice
of the public hearing which preceded the selection of the landfill site. Their argument is that the proposed operation of the landfill will depress the value of adjoining property and the selection of the site will so adversely affect their property rights that it will amount to a deprivation of property. Thus, it is argued that published notice of the impending decision by the commissioners was inadequate as a matter of constitutional law. This contention is without merit. A mere decision by the governing body of a county to acquire land for an authorized public purpose, without more, in no way affects the constitutionally protected property rights of abutting landowners. In this factual situation the actions of the board of commissioners did not trigger due process considerations because there was no deprivation of property in any cognizable sense. Cf.
F. P. Plaza v. Waite,
Another constitutional argument advanced by the plaintiffs is that their property was "taken,” by the action of defendants, for a public purpose without just and adequate compensation.Const, of 1945, Art. I, Sec. Ill,Par. I (Code Ann. § 2-301) (Rev. 1973). This constitutional provision will apply only if property is taken or damaged.
In their final constitutional argument plaintiffs contend that they have been denied equal protection of the law in that the location of the only landfill in DeKalb County in the southern portion of the county will place a greater burden of government upon them than upon other residents. They argue that the residents of northern DeKalb will receive the benefits of garbage pickup but will bear none of the burdens of its disposal.
The plaintiffs urge that the situation in the instant case is analogous to situations where a tax is levied on one area for services to be rendered in another. If that were the case, plaintiffs’ contention might have merit. See
City of Lithonia v. DeKalb County Bd. of Ed.,
The plaintiffs’ final argument under enumeration of error No. 1 is that the injunction should have issued because they were denied a public hearing under the rationale of
Pendley v. Lake Harbin Civic Association,
III.
In enumeration of errors 3 through 38, plaintiffs complain of various rulings of the trial court on the admission or exclusion of testimony and evidence. Basically, the enumerations of error fall into three categories: (a) the improper admission of evidence and testimony; (b) the denial to plaintiffs of a "thorough and sifting” cross examination; and, (c) the improper exclusion of evidence.
Enumerations of error Nos. 7, 24, 29, 35, 37, 38 and 39 generally complain that the trial court improperly admitted evidence and testimony. This was an interlocutory hearing before a judge and without a jury. In such a situation, unless the record is clearly to the contrary, "it will be presumed that upon rendering his decision [the judge] considered only legal and admissible evidence.”
Tyree v. Jackson,
In enumerations of error Nos. 22, 23, 25, 26, 27, 30 and 31, plaintiffs complain that they were denied a thorough and sifting cross examination of various witnesses. Every party has this right. Code Ann. § 38-1705 (Rev. 1974). The scope of cross examination, however, is largely within the discretion of the trial judge. See
Proctor v. State,
In Enumeration Nos. 4,5,6,8,9,10,11,13,15,17,18, 19, 20, 21, 28, 32, 33, 34, plaintiffs cite as error the exclusion by the trial court of certain testimony and other evidence. The evidence was excluded for a variety of reasons, but predominantly because it was objected to as irrelevant or conclusory. Even assuming that some of the testimony was erroneously excluded, we cannot say that it was "of vital or controlling character” so as to require reversal.
Griffith v. City of Hapeville,
In the remaining enumerations of error (3,12,14,16 and 36), plaintiffs complain of a variety of rulings which are claimed to be harmful error. None of these enumerations warrants discussion. Suffice it to say that each of them has been considered and found to be without merit.
Judgment affirmed.