81 Ga. App. 610 | Ga. Ct. App. | 1950
This was a proceeding brought in the name of the State of Georgia in Washington Superior Court to validate revenue-anticipation certificates of the Town of Davisboro for the improvement and extension of its waterworks system. A certified copy of the resolution adopted by the Mayor and Council of Davisboro was attached to the petition, and under the terms of this resolution it was proposed to improve and extend the waterworks system of the town “by issuing, in anticipation of the collection of revenues therefrom, ten (10) negotiable revenue certificates, each for the principal sum of seven
Casey Thigpen, as a resident of the alleged town and a patron of the waterworks system, filed an unverified intervention. In this intervention he denied the allegations of the petition, and demanded strict proof thereof, and alleged that the town was not incorporated, or if incorporated, that it had no authority to maintain a waterworks system, that notice of the proceeding as published in a local newspaper was not signed by the clerk of the superior court, if signed at all, until after the advertisement was completed, that under said proceeding an attempt was being made to expend money and property of the Town of Davisboro in violation of article 7, section 1, paragraph 2 (1), of the
At a hearing at which the intervenor was present, H. C. O’Neal, Clerk of the Town Council of Davisboro, was sworn as a witness “and was asked if he would testify that the allegations of the petition were true and he replied in the affirmative,” and Edward T. Averett, attorney for the Town of Davisboro, called the attention of the court to Georgia Laws, 1916, page 659, and read the caption of the act creating the Town of Davisboro. No evidence was offered by the intervenor. The court passed an order validating the revenue certificates, and the intervenor excepted, for the reasons set forth in his intervention. The case went to the Supreme Court and that court transferred it to the Court of Appeals. Thigpen v. Davisboro, 206 Ga. 505 (57 S. E. 2d, 590).
The contentions of the intervenor in respect to the issuance of the certificates under this proceeding as being in violation of certain provisions of the Constitution of this State are without merit. Article 7, section 7, paragraph 5, of the Constitution of Georgia, Code (Ann.), § 2-6005, provides that the issuance of revenue-anticipation certificates may be made pursuant to the act of the General Assembly approved March 31, 1937, known as the “Revenue Certificate Laws of 1937” (Ga. L. 1937, p. 761 et seq.) as amended by the act approved March 14, 1939 (Ga.. L. 1939, p. 362 et seq.) and that the same shall be payable from revenue produced by revenue-producing facilities of the issuing
The other contentions of the intervenor are also without merit. A prima facie case was proved by the testimony as to the truth of the allegations of the petition, and the Town of Davisboro in its verified answer admitted the allegations of the petition to validate the certificates. Insofar as proof of the fact that the Town of Davisboro was incorporated was necessary, this was a matter of which the court could take judicial notice. Code, § 38-112; Stanley v. Sims, 185 Ga. 518, 522 (195 S. E. 439). As brought to the attention of the court, the act of incorporation, or of reincorporation, is found in Georgia Laws, 1916, page 659 et seq. Under § 42 of this act, page 676, the town is given express authority “to establish and maintain a system of waterworks.” If the clerk of the superior, court failed to sign the notice of the time and place of the hearing until after the same had been advertised, this would not render the proceeding null and void. The requirement under the law is that notice be published by
Under the record in this case no error of law appears and the judgment of validation was authorized.
Judgment affirmed.