110 Ga. App. 881 | Ga. Ct. App. | 1965
The demurrers of the intervenors present the initial contentions that the petition shows on its face that (1) the resolution does not appear on the official minutes of the Board of Commissioners of Roads and Revenues of Richmond County, (2) the plans and recommendations of the county’s consulting engineers, the firm of Patchen, Mingledorff and Associates, are not incorporated in the official minutes of the board of commissioners, and (3) the resolution fails to incorporate any descriptive- matter by which the document or documents containing the plans and recommendations of the county’s consulting engineers can be identified.
These allegations clearly refute the physical content of this group of contentions. It is, therefore, unnecessary for us to decide as a matter of law whether the contentions had their substance been accurate would have rendered the petition subject to general demurrer.
In their brief intervenors describe the other grounds of their demurrers as directed to the point whether the resolution is sufficiently certain and definite to be valid and enforceable as a contract between the county and the certificate holders or to constitute a basis for the validation of the proposed bond issue. In support of their contention that the resolution is not certain and definite intervenors cite and quote at length the case of Miller v. State of Ga., 83 Ga. App. 135 (62 SE2d 921). In that case, however, Judge Felton writing for the court depicted the resolution by stating that “All the resolution in this case shows is that money be borrowed to pay the cost of ‘making improvements and extensions to the waterworks plant and system of said city.’ ” The court then held the resolution to be so general as to mean nothing and thus subject to general demurrer. One applicable principle which the court expressed in Miller is that “Such a resolution must reasonably show the nature, kind and location and such other facts as will with reasonable fullness and definiteness describe and define the undertaking including the costs thereof.” To meet that test Miller requires the resolution to show (1) the estimated costs of the improvement and (2) that the improvement is a planned one. With reference to
The resolution now before us contains ample information to meet the tests declared in Miller. Among other things the resolution recites “the Board of Commissioners of Roads and Revenues of Richmond County has caused an investigation to be made and it has been determined that there exists an urgent need for making substantial additions, extensions, improvements to the water and sewerage system and equipping same, including but not limited to the acquisition of an adequate source of water supply, which will entail a cost of approximately $2,250,000, in accordance with, or substantially in accordance with the plans and recommendations of the County’s Consulting Engineers, Patchen, Mingledorff and Associates, Augusta, Georgia, a copy of which said plans and recommendations being on file in the office of the Clerk of said Board, which plans and recommendations by this reference thereto are incorporated herein as a part hereof.”
Other cases cited by the intervenors in support of this class of their contentions are not for the purpose cited relevant to the proceeding in this case. The cases of City Council of Augusta v. Irvin, 109 Ga. App. 598 (137 SE2d 82), and City of Way cross v. Boatright, 104 Ga. App. 685 (122 SE2d 475), each dealt with the question as to whether the entirety of a specific ordinance had been adopted in accordance with the particular method of procedure prescribed for the adoption of zoning ordinances under Code Ann. Ch. 69-12. No attack is made on the resolution in this case as not having been adopted in accordance with the
In their objections to matters arising from the hearing conducted by the trial judge, the intervenors continue to press the argument that the Board of Commissioners did not adopt the resolution authorizing the public improvement and the bond issue together with the alternative contention that the resolution fails to set forth sufficient facts to afford a key from which a full picture of the project may be ascertained. In addition strenuous exception is taken to the fiscal and engineering feasibilities of the project.
We have examined carefully the evidence in this case and find as to each objection an abundance of evidence supporting the facts found by the trial judge. Although rebuttal evidence on these issues is also present in a measure ample to have created issues of fact, the resolving of those issues is by law placed exclusively within the discretion of the trial judge. See Code Ann. § 87-818. “When the trial judge is by law made the trior of an issue of fact, this court will not interfere with his finding when there is any evidence to support it.” Madison v. Montgomery, 206 Ga. 199 (56 SE2d 292).
The remaining contention of the intervenors objecting to the feasibility of the project is to the effect that the proposed raw water intake shows it to be in a position which necessarily requires an encroachment on the riparian rights of the City of Augusta and of others. Assuming but not deciding that the in
Any public improvement of the magnitude proposed by the Richmond County authorities in this case necessarily must embrace certain contingencies. The existence of contingencies does not ipso facto render the project unfeasible. All that is required is that the project be planned with “reasonable” certainty. Miller v. State of Ga., 83 Ga. App. 135, supra. What is “reasonable” in a given case such as this is not ordinarily a question of law but is a question of fact. Here the judge has obviously determined that any contingency such as the acquisition of rights for the placing of raw water intakes is not so unreasonable as to render the project not feasible. In this determination the evidence supports the judge, for the evidence is not conclusive that riparian rights necessarily will be violated. But even were the evidence conclusive on the issue, a finding against the feasibility of the project would not be demanded as a matter of law for the reason that the property rights required could be gained through the exercise of the power of condemnation. One municipality has the power to condemn under reasonable circumstances the public property of other municipalities. Howard v. City of Atlanta, 190 Ga. 730 (10 SE2d 190).
5. There was filed in this case a motion to dismiss the bill of exceptions on jurisdictional grounds. The motion had no merit on any of the grounds urged by the defendants in error. Although the record is not clear as to whether a retender to the judge, or in his absence to the clerk as required by Code Ann. § 6-902, was demanded by reason of the physical return to the plaintiffs in error of the bill of exceptions on August 4, 1964, this court has seen fit to resolve the ambiguity in favor of its jurisdiction and to decide the case on its merits. The motion to dismiss is denied.
Judgment affirmed.
