*1 BRIDGE BUILDING STATE 18284. McLUCAS v. et al. AUTHORITY Argued September July 1953. 1953 Decided Latimer, A. in error. plaintiff C. Eugene Cook, Attorney-General, Webb, Solicitor-General,
Paid Mob- Adams, Attorney-General, Carlton C. Winton Assistant Mwpihy, D. ley, B. contra. Authority, a Bridge Building The State Justice.
Candler, legisla- body politic, by an act of the corporate and created was 1953. Ga. L. approved on March 25, ture which Governor cor- given perpetual By creating act, was p. thereby deemed to be instrumen- porate existence was acute need tality corporation. An public and a of the State many replace substandard bridges and a additional desire part replacement of which as a bridges, the fi- unable highway system State was the State’s motivating influ- creating debt, was the without nance many Among of the act. passage approval prompting ence corporate powers, others, in addition usual empowered by expressly act, was authorized and at time, one provide resolution for the time, or from time issuance of negotiable in sum not $30,000,000 revenue to exceed bonds out- *2 any time; sell and standing one to its use proceeds at bonds the any or paying for the of all the cost of project financing and projects, or combination of the Highway Board which the for the benefit of the State Highway Department proposed requested; and had lease or Highway Department rent its to the period facilities for a years exceeding 50 date contract; from the lease of the pledge payment the revenue derived to the therefrom of its And Highway revenue bonds. Board for and on the State be- Highway by half Department, of the State the by amendment, legislature act and the which the terms of an (Ga. passed p. 81), L. to the Board by fully Act amended the act of was authorized Authority to contract for the It with use of its facilities. empowers authorizes and the State Board for the bene- Highway Department request fit of Authority the State financing any project consider projects construction of or opinion desirable Board; be in the of the and for the purpose making project possible, consideration of a it author- expend highway izes the Board available funds. The act also that all revenue issued under the there- bonds qualities negotiable of shall all the have incidents instru- Negotiable ments under the of Georgia, Instruments Law that exempt such bonds the income therefrom shall be from all And provides: taxation within the State. 30 of act found, “It is hereby determined declared creation Authority carrying corporate out of purposes its respects people all for the benefit of the this State, and Authority that the an institution purely public charity performing governmental will be an essential function in the ex- upon ercise by of the conferred it Act and this with Authority covenants holders of bonds that the shall required pay be upon any no taxes or assessments prop- erty acquired by or leased it its jurisdiction, pos- under control, supervision upon session or or operation its in the activities any fees, rental or projects erected maintenance of projects or other income of such received charges for the use other Authority, their trans- Authority and that bonds of exempt at all times be from fer, and therefrom shall the income State.” The act also declares within the taxation from to constitute a debt Authority not be deemed shall bonds they State; that shall pledge or a of the credit of the obligate levy indirectly, contingently directly, or to make taxation whatsoever therefor pledge form of payment; they must contain any appropriation for their foregoing pro- substantially covering their face recitals on expressly provides that the And 26 of act visions. shall Authority, principal interest, both bonds of the as to paid solely revenue received it as rentals for use provides The act bonds of the of its facilities. also be confirmed and validated accordance with Georgia, procedure 87-8, the Code Ch. an action *3 Superior brought County, in Court of Fulton Geor- therefor the independent, part and of gia; integral, and that in the as Authority and proceedings, separately, bond-validation or the has a expressly given right the of or privilege simultaneous suit, countersuit, equitable separate against bill the action, Highway De- Highway State and the State Board and the State partment declaratory adjudication validity a for of the and bind- ing effect of rental lease contract contracts whose income pledged partially benefit of bonds pledged the being validated. Highway benefit of the State Highway
The State Board for the financing Authority to the Department requested the consider consisting approach spans of to a project a bridges bridge and number of several different coun- named pro- acceding pursuant ties of the thereto 10, act, April 1953, by did on resolu- Authority visions of the provide $9,750,000, tion, principal for the issuance sale of amount, purpose financing for the of its bonds designated. regularly Pursuant project so to resolutions pursuant adopted act, also to the of the the Au- thority agreement Highway entered into an with State De- partment whereby agreed did former to and lease the latter a term beginning
for of 50 years, July 1, 1953, and ending June 30, designated facilities of the project, or ap- proach spans and those which had on April 1953, agreed finance, construct sum $831,000 per annum, and in addition thereto such other rental charges provided by section 11 act, pay- but all only able out the current of the lessee, revenues and such lease- or rental contract was made entered parties between into Authority, after the required as it was by to do section 8 of the bridge-building act, had first secured a certificate from the State Auditor that obligations annual rental under the aforesaid lease rental contract existing fall fiscal Highway Department obligations pur- make 12 of the Highway suant to section Board Act of amended By the acts 1951 and duly resolution adopted, Authority provided for the execution of a trust in- denture with The & Citizens Southern National Bank of At- trustee, securing lanta as bonds, issue the aforesaid as it section 24 of the bridge-building act authorized Avas do, and such an instrument duly was thereafter executed. Webb, a petition Paul
To Solicitor-General of the Atlanta Circuit, Georgia against Judicial behalf the State Bridge Building Authority, the State Depart- Highway Board, seeking ment, $9,750,- to validate principal negotiable 000 in amount of revenue bonds Bridge Building Authority provided April 10, 1953, for on constructing for the and financing project designated Board as highway of the State’s system, all admitting defendants filed answers as true the *4 allegations material petition prayed judgment the and for a validating answering, by way issued. Further and bonds so declaratory against State of of countersuit for relief Geor- Highway Department, gia, State State Board, Bridge Building Authority alleged the State en- that it April tered contract on into lease with the State Highway Department under the terms of which it rented to the years, beginning July lessee for a term of 50 1, 1953, as of rights way speci- be constructed thereon as in petition fied the Aralidation and the exhibits thereto attached. prayer that be contained a lease contract The eountersuit obligation binding valid good and sufficient declared Georgia re- Highway Department. The alleged, facts thereto response its admitted sponded contract, validity should, and stated that of the lease conceded thereto, be valid and parties declared obligation every legal. binding, respect and in McLucas, taxpayer County, Fulton a citizen and John D. presented court Georgia, and had allowed order of the his in- a judg- and to objecting the validation the bonds tervention declaring binding. contract His inter- ment the lease valid alleges bridge-building act of 1953 violates vention sev- stated of 1945 eral Constitution void; contract between the reason null and and that the lease Building Highway Department Au- and the State thority illegal and which will be unenforceable for reasons pointed opinion. hearing, and dealt with in the After a out adjudged act was declared constitutional and the lease was be valid and all made the intervenor enforceable over attacks upon respective constitutionality validity each. exception that judgment. is to provides: this State “No debt shall be
1. The Constitution of
except
supply
tem-
created
or on behalf
treasury
any year
in
in
nec-
porary deficit
exist
essary
collecting
year,
repel
the taxes
delay
invasion,
in
of that
insurrection,
war,
defend
in
or to
suppress
time of
existing public debt;
supply
pay the
debt created to
exceed,
aggregate,
five
in revenue shall
deficiencies
dollars,
hundred thousand
loan made for
year
taxes
in which
repaid
be
out
levied for the
shall
(Ann.)
Code
2-5601. The Constitution also
loan made.”
§
“The
debt of
never
in-
bonded
the State shall
creased,
repel invasion,
insurrection, or
except
suppress
defend
(Ann.)
And it
time of war.” Code
2-5602.
also
§
pledged
“The
declares that
credit of
State shall not be
any individual, company, corporation
loaned
association
become a
joint
and the State
owner or stockholder
corporation.”
individual, company,
association
with,
(Ann.)
2-5604. The intervenor
Code
contends
*5
bridge-building
25, 1953,
unconstitutional,
act March
is
null
void,
the revenue bonds which the
because
Building Authority
empowered
provide
authorized and
obligations
14 of the act
issue under section
are
or debts
provisions
State,
quoted
of the
inhibited
of the Constitu
agree.
Authority
not
tion. To this we
While the
is an in
do
strumentality
State,
of the
it
nor
State,
is nevertheless
State,
agency
of the
nor an
State.
It
a mere
State, having
corporate entity.
creature of
distinct
reve
Its
bonds,
nue
expressly
emphatically
as section 23 of the act
declares,
obligations
are not
or
of the State,
pledge
debts
nor a
they
payable solely
of the credit of the
are
State,
and ex
clusively
facilities;
derived
revenue
from a use of its
indirectly,
not directly,
contingently obligated
levy
pledge any
form of taxation whatsoever
therefor
any
make
appropriation
payment
them,
act
requires
bonds,
issued,
when
must
recitals on
contain
their
They
first,
face to this effect.
last,
always
a cor
porate
debt
and in no
debt of
sense a
the State.
In this connection and
Regents
to the
effect,
same
see State v.
University
(175
System,
(a)
Nor is there
merit in the contention that the bonds
may pursuant
which
issued under and
bridge-building
to the
obligation against
act create an
pro-
violation of the
visions
article
III, paragraph
V of the Constitution
(Code,
of this State
Ann.,
2-5605),
the debt,
any part
shall not assume the
nor
thereof,
county,
municipal
political
corporation, or
subdivision of the
un-
repel invasion,
enable the
be contracted to
such debt
less
insurrection,
time
war.
defend itself in
suppress
the intervenor
It
is insisted
*6
pursuant
provide
made
for the
lease
thereto
of 1953 and the
act
VII,
article
against
in violation of
debt
the State
creation of a
Ann.,
(Code,
of 1945
paragraph I
the Constitution
III,
section
2-5601).
contention,
plain
for
support
this
counsel
In
§
v.
(8th ed.) p. 218;
699,
58;
16
Am. Jur.
C.J.S.
§
(96
367);
3. Section
Bridge Building
30 of
Authority
Act
expressly exempts
property
Authority,
its revenue
and the income
bonds,
therefrom from all taxation within the
and it
exemption
is insisted that this
constitutes a donation
gratuity
or a
VII,
I,
violation of article
paragraph II of
(Code, Ann.,
the Constitution
2-5402); and that
it-offends
§
I, paragraph
article
IV of the Constitution (Code,
exempting property
Ann., 2-5404), which
all laws
property therein enumerated are void.
than
from taxation other
enumerated
the clause
the Constitu
Among
properties
legislature
exempt
tion last cited which the
is authorized to
public properties”
purely
“all
“all
taxation are
institutions
property
charity.”
The
of the State
public
Building-
(Williamson
public property
Housing
is
v.
Au
thority Augusta,
673, 689,
186 Ga.
199 E.
43);
S.
view
but,
beneficent
legisla
for which it was created
coupled
fact
ture,
with the
that it
shareholders or other
has no
any
corporate profit
owners of
character to which
or income
its
distributable,
purely
we think that it is an institution of
public
charity.
In this connection see Houston v. Mills Memorial
Home,
(43
202 Ga.
680);
S. E. 2d
Elder v. Henrietta
Egleston Hospital,
(53
751).
act, particularly thereof, unconstitutional is assigned. the reason void for here bridge-building act as follows: “It is 6 of the is 4. Section determined, found, and declared that the welfare of the State of operation this Georgia be served the creation will accomplishing purposes the end of Authority, that, convey authorization for and on Authority, power and way highway rights State’s behalf of the so much accomplishment necessary purposes as shall sovereign legislature authority of the Act, hereby, by is Upon Board. delegated authority by exercise of this Board, requested the Governor of execute authority conveyances may upon receipt be made under this composed as a of such nominal consideration committee de- Attorney-General, the State Auditor shall Governor, proper convey- meet and for each such individual termine to be upon ground ance.” act is This section attacked 11(1) I, paragraph violates article the Constitu- (Code, Ann., 2-5402), which tion “The General by vote, grant Assembly resolution dona- order, any person, corporation gratuity tion favor of associa- conveyance This contention without merit. Each such tion.” consideration, Attorney- Governor, for a nominal General, the State Auditor must determine fix. It is legislative plan having made in furtherance of scheme necessary only purpose ap- its public free, thereto which the will toll proaches use, highways. system conveyed property, to- State’s bridge improvements valuable gether grantee with those which thereon, will, improvements paid when such erect will *9 charge returned grantee, therefor, without and will thereafter be used a part system the State as of its highways. conveyance It property is a of a public aid of great from which benefit to the State and its citizens reasonably expected; and, Georgia v. Cincinnati Southern (39 Sup. 248 U. Railway, 104), S. Ct. 63 L. ed. the Su- preme Court United dealing directly of the States —while with particular provision this of our in a where Constitution, case legislature granted public property had certain for railroad right- of-way sought uses and where grant revoke on ground that it had been made in violation of the aforesaid inhibiting clause speaking through of the Mr. Jus- Constitution — Holmes, tice said: “Elaborate of the discussion circumstances superfluous. necessary seems to us But it is to mention the ob- jection that constitution Georgia general assembly ‘grant any was forbidden donation gratuity in favor person, corporation, association,’ there was no con- grant. sideration for Even contemplated if the and invited change of position part on the Cincinnati Southern Rail- way and expressly the benefit to the State contemplated as en- suing it were from not the conventional grant, inducement of the so, technically were not we consideration, opinion are of the grant a gratuity was not {meaning of the state A conveyance constitution. public purpose in aid of a great expected benefits are is not within the class evils constitution prevent intended to and in opinion our not within meaning of the word as it naturally would be understood. argument We deem unnecessary further to estab- Georgia lish that the grant State of amade which it cannot now revoke.”
(a) also There is no merit in the contention that confirmation and validation revenue bonds should re- be denied and fused since the State only an highway has easement for purposes rights way, and conveyance them, fits provided for by section 6 of the act, amount in will law to an abandonment them highway purposes for work thus a reversion. The contemplates, act purpose, has for its expressly provides for rights a continued use of the way highway purposes only, the improved use them a permanent State’s system highways. There merit in the contention is no particularly those thereof which authorize sections
act, and
*10
Highway
monthly
to
Department
pay
empower the State
Building
the use
Authority for
rent to the State
yearly
services,
VII,
II, para-
violate article
section
its facilities
qf
(Code, Ann., 2-5501),
graph
Constitution
which
I,
powers
“The
of taxation over the whole State shall
provides that
following
Assembly
purposes
by
be
the General
for
exercised
sys-
maintain
only:
6. To
...
...
construct
argued
legis-
highways.” It
tem of State
is insisted
and em-
authority
was without constitutional
to authorize
lature
expend
ap-
Highway Department
tax funds
power the State
any purpose
propriated to it for
other than
the construction
for
being
system
highways,
and maintenance
aof
of State owned
specifically alleged by
moneys received
the intervenor “that tax
by
Highway Department
paid
State
as rentals to
Bridge Building Authority
not be
construct
State
will
used to
meaning of
system
highways
and maintain a
within the
State
foregoing
provision
constitutional
for
reason that
Georgia,
by
will
be built
not be owned
State
by
separate
by
corporation
will be owned
an'act
created
legislature,
Bridge Building Authority.”
wit,
State
completely
gives
This contention
effect
ar-
overlooks
no
1(a)
(Code,
of the Constitution
VI, paragraph
VII,
ticle
High-
empowers the State
authorizes and
2-5901), which
Ann., §
bridge facilities
institution,
to rent
way Department, a State
Bridge Building Authority for
use as
the State’s
from the
previously
system highways; and,
have
we
its
out,
original
are
provisions
two
the Constitution
pointed
these
together.
pari materia,
and must be construed
equal
degree, in
construed, ample
authority
And
is found in
Consti-
when so
act
provisions
for
which au-
tution
those
expend
Highway Department
appropriated
thorize
bridge
renting
tax funds for the
facilities
highway
ruling
A
for State
uses.
different
not re-
VII,
IX,
an amendment
article
quired
paragraph
(Senate
5;
Ga.
Constitution
Resolution No.
L.
IV,
people adopted
requires
1951,p. 849), and which
general appropriation
ap-
Assembly in each
act
the General
Department,
highway pur-
for
propriate to the
than the
fuel and
total motor
motor
poses, an amount
less
Treasurer for the im-
license taxes received
vehicle
mediately
refunds,
amount of
re-
preceding
year,
fiscal
less the
authorized
law. The amendment
and collection costs
bates,
hereby
funds
allocated to the
De-
provides: “Said
partment
highway improvement
be utilized for
includ-
and shall
ing
amendment,
and maintenance.”
The 1952
expressly
by necessary implication,
neither
nor
divests the State
Highway Department
conferred
article
sec-
1(a)
paragraph
bridge
tion
the use of
VI,
to contract for
facilities
Bridge Building Authority
highway
from the State
purposes,
pay
monthly
during
and to
annual or
rentals
them
use of
period.
the contract
Different
of the Constitution
(Hammond
harmonized,
practicable
Clark,
should
if
v.
136 Ga.
*11
(10
(N.
a),
S.)
repeals
313
71 E. 479,
77),
S.
38 L.R.A.
provisions by implication
by
constitutional
are not favored
law.
repeals by implication
An
a
existing
amendment to
constitution
provisions only
they
constitutional
are in irreconcilable
when
conflict,
they
reasonably
together.
and when
cannot
stand
(95
Stewart v. Bacon County,
983);
6. There no merit in the contention that is unconstitutional, bridge-building act is and therefore null and void, VII, paragraph X III, because it offends article (Code, Ann., 2-1910), provides: Constitution which “All § raising revenue, money, shall appropriating originate bills for or Representatives, may the House of but the propose, in Senate in concur in bills.” The act not a amendments, as other is reve- appropriating money. nue measure nor one III, paragraph 7. Article XVII Constitution (Code, Ann., 2-1917) provides: Assembly General “The shall power grant corporate no powers privileges have to pri- to change companies, precincts, vate to make or election to nor bridges ferries, change nor legitimate establish names children; by it prescribe law the manner in which such powers courts; shall be exercised may it confer this au-
14 private corporate powers privileges com-
thority grant in vaca- superior courts of this State judges panies to alleged paragraph intervention that It in of the is tion.” quoted provision act offends the the Constitu- grant corporate charter, powers, tion it does fact because Bridge Building Authority, is, which privileges private provides effect, corporation, meaning of the aforesaid con- establishment of obviously There merit con- prohibition. stitutional is no in this Bridge Building is Au- tention; and this true because public corpora- thority instrumentality Assembly tion, corporate created as such General with bridge projects finance and construct such the State Highway Highway Department Board for the benefit of the State Regents University System request. State v. Georgia, supra. Act 12 of Board
8. Section (Ga. the act of L. act of amended Highway Board 81) follows: “The State p. Highway Department hereby of the State administration in the making contracting any expressly prohibited from debts any contract, for have funds entering into does [not] making entering debt or pay at time of said said hand on in the Board administra- contract; except hereby Highway Department expressly au- tion with the State to enter lease contracts thorized into may obligate Department Authority, pay Building *12 according provisions projects for the use of to the lease rentals Bridge Building Authority provided that the the ‘State of Act/ paid contracted be at time lease rentals total of such shall $2,500,000 per annum. For of paying never the exceed may received by rentals funds as be the lease such State said Department maintaining, improving the cost Highway reconstructing bridges the highway and the and on State roads may thereto, pledged by cost be the system incident Highway Highway Board in the administration the State rentals.” Department payment Paragraph lease 9(c) alleges the intervention the lease involved is invalid provisions quoted it violates the no effect because
15 not provided for in the lease is annual rental section, since the $2,500,000per annum. There definite, and exceed fixed and expressly recites: “Pro- this contention. The lease no merit in is due aggregate annual rental lessee vided, however, upon entered be- lease and all other lease contracts under this authority 25, Act of March under of said tween lessor lessee 1953, 12 of permitted by the maximum Section exceed not 17, Highway February amended Act Board Act (Ga. 81).” requirement And, pursuant p. L. bridge-building act, Auditor, under 8 of the Highway Board Act of the State writing amended, has, certified in shows, as the record fall obligations the annual rental the lease within the under existing Department. Highway fiscal of the State part: “As bridge-building act reads Section 3 of shall have the following words terms Act, the used in this ‘project’ (b) The word shall be meanings: . . . following ... to- one more mean include deemed to (d) . thereto. . . approaches . . gether with the mean not than three be deemed to more ‘approach’ shall word bridge and within artery on either end of of the traffic miles traffic arteries on either end mean much limit shall so maximum required develop the traffic bridge as shall paving, minor including necessary grading, bridge, capacity of necessary ap- to the drainage structure other approved requested Board proach.” The including: project “8. North finance and construct a Ocmulgee River, bridge State Route spans of the over approach City.” Further described County Telfair at Lumber County, “Being strip Telfair 100 feet in Georgia] of land [in having length beginning of 1280 width, . and at . . feet ending Ocmulgee edge, River at Station Station 27/00 alleged of the intervention it “that paragraph In 39/80.” proposed bridge thus be constructed' the structure is, meaning 25, 1953, of said act of March fact, bridge already constructed, approach to a Building Authority by said act not authorized to construct approach, Board and the such an Gov- convey property act to authorized said ernor *13 Building Authority Bridge and the purpose, a Building Authority issue not authorized to reve- obtaining finance construc- nue for the funds to bonds wholly contention is merit. approach.” tion of such This without 4(5) by bridge-building act, As authorized Authority may approach, finance and construct an that word as act, bridge defined either a old or to new when requested do so Board. assigned.
10. The act is not invalid for reason The bonds, lease, revenue and the trust indenture between the Bridge Building Authority &Southern Na- Citizens Bank, indisputably tional show, completely facts conform thereto; hence court did err, contended, in confirming validating holding revenue and in bonds that the lease binding. indenture are valid trust Accordingly, judgment complained assigned. of is erroneous for reason
Judgment All the Justices concur. Duckworth, C.J., affirmed. Head, J., concur in the but not in judgment, all that is said opinion. in the Wyatt, specially. J., concurs Justice, concurring specially. agree to so much of Wyatt, I opinion deals tax exemptions with for the sole reason that I am bound former of this decisions court.
18299. Manis v. Genest. exceptions here on to orders of trial This case is Justice. Almand, plea originated overruling in a in abatement. It demurrers and court County, Connecticut, Pleas of Windham the Court Common alleged: Regina Genest, petition by filing M. she that she wherein Georgia, Ralph Manis, residing Dalton, in H. the divorced was wife respondent was the father three named and was the mother children; mother father a minor was Catholic and the Protestant; support the children need of and entitled to were Chapter 415a, Supplement respondent 1951 Cumulative from the under Statutes, Georgia the State of has and that enacted General reciprocal statute; substantially similar and to the Connecticut law respondent neglected provide and that refused and a fair prayed support children; reasonable for these and she for an order support Upon upon directed to him. an affidavit of non-service respondent, judge fil- of the Connecticut court certified the ing respondent petition, .of the could not be served Connecticut, Georgia, but resided and that