172 Ga. 642 | Ga. | 1931
(After stating the foregoing facts.) As said in Dyer v. Martin, 132 Ga. 445, 447 (64 S. E. 475) : “The constitutional scheme of county government is that the powers in relation to roads, public buildings, taxes, and other county matters are to be exercised by the ordinary, except where the General Assembly confers such powers upon county commissioners of a particular county.” As appears from the record, J. .M. Stone as commissioner supersedes the ordinary in Cobb County. When the administration of county affairs in Cobb County devolved upon this commissioner, the power over the roads usually exercised by an ordinary under the provisions of the code was lodged in him, and he could discharge all functions with reference to county matters generally, and the roads in particular, which had been conferred upon him by the act creating the office of commissioner and which had. theretofore been performed by the ordinary. Town of Decatur v. DeKalb County, 130 Ga. 483 (61 S. E. 23). Since the passage of the act of 1850, which in the creation of the office of ordinary transferred to its jurisdiction powers of the justices of the inferior court, it may be said that the administration of all four different systems of road-working has been lodged in our ordinaries until the enactment of the law allowing any comity which may so desire to substitute commissioners of roads and revenues. We do not overlook the fact that in a few counties the county matters are in charge of county judges, but this fact is immaterial at the present time. There can be no question of the fact that the defendant as commissioner
However, in 1903 the General Assembly amended this section so as to make it particularly applicable to roads (Ga. L. 1903, pp. 41-43), by adding all of the section in its present form which comes after the word “duties” in the original section as quoted. The proviso added is: “provided, however, that on the application of one or more citizens of any county of this State against the county commissioners of roads and revenues of such counties where by law supervision and jurisdiction is vested in such board of commissioners of roads and revenues over the public roads of such counties, and the overseers of the public roads complained of, or the ordinaries of such counties where by law supervision, control, and jurisdiction over such public roads is vested in the ordinaries and the overseers of the public roads that may be complained of, either, both, or all of said named parties, as the facts and methods of working the public roads in the respective counties may justify, which application or petition for mandamus shall show that one or more of the public roads of such county of such petitioner’s residence are out of repair, and do not measure up to the standards and do not conform to the legal requirements as prescribed by sections 512, 513, and 533 of volume 1 of the Code of 1895 [sections 632, 633 and 654 Code of 1910] of Georgia, and are in such condition
In Savannah &c. Canal Co. v. Shuman, 91 Ga. 400, 402 (17 S. E. 937, 44 Am. St. R. 43), Mr. Justice Lumpkin said: “The granting or refusing of injunctions has always been regarded as discretionary, and it seems quite clear that in cases of mandamus it lies very largely within the discretion of the presiding judge as to whether or not the writ will, in a given case, be made absolute; and in order to reverse a judgment in a case of this kind, it would be necessary to show that the discretion of the court was abused.” In the very early case of Moody v. Fleming, 4 Ga. 115 (48 Am. D. 210), this court ruled that except in a case of clear legal right the writ of mandamus was a discretionary remedy. That the issuance of an interlocutory injunction upon conflicting evidence is discretionary, and that the judgment of the lower court will not be reversed unless the discretion of the lower court has been manifestly abused, is a rule so frequently applied as to become practically axiomatic. And yet it seems that this rule as to injunctions was first applied as to mandamus, since in one of the earliest cases, Harwell v. Armstrong, 11 Ga. 328, the decision in Moody v.
As has been heretofore remarked by this court, it is an impossibility for county authorities at times to keep or repair all of the public roads of a county at once. Commissioners v. McMath, 138 Ga. 351 (75 S. E. 317). There is no allegation in the petition that the building of the new road referred to, or the change of the road which has been suggested by the petitioners, has not been authorized in manner prescribed by law; and since pleadings are to be most strongly construed against the pleader, it must be inferred
Since there is no statement in the petition other, than that referring to §§ 632, 633, and 654, it must be assumed that the road in question is not a first-class road, which is required by the terms of § 630 to be “at least thirty feet wide.” § 654 provides: “The county authorities of the several counties, having charge of the roads and revenues of each of said counties, are authorized and required to provide for the grading of the public roads of their respective counties, where said roads are too steep, too rough, or too boggy for practical use or the hauling of ordinary loads; and said officials are authorized and required to provide for any other extraordinary work on the public roads of their respective counties which can not be done by the road hands subject to road duty under the laws of this State.” This section is followed by § 655, which seems in part to negative the provisions of § 654. However, this is immaterial, because we merely referred to the code sections to which reference is made in § 5441, in illustration of the statement previously made, that apparently the quotation of § 5441, without the presentation of such facts as would show that the road will not continuously carry ordinary loads, with ordinary ease, would not protect the petition from the attack directed against it by demurrer. The amendment to the petition concludes as follows: “Petitioners allege on information and belief that unless work of a permanent character is done upon said road and it remains neglected, as heretofore alleged, that the same will become impassable and that ordinary loads with ordinary ease and facility can not be continuously hauled over said section of road.” ’ From the statement that the road “will become impassable, and that in consequence ordinary loads with ordinary ease and facility can not be continuously hauled over said section of road,” the judge of the superior court, construing the petition against the pleaders, was authorized and required to conclude that the road had not become impassable, and that at the time of the action ordinary loads with ordinary ease and facility could be continuously hauled over the road. An application for mandamus to require the county authority to do certain specified things is subject to demurrer upon the ground that it fails to set forth a cause of action, when the allegation is that the road will become impassable and will not con
After full consideration of the road laws of this State and application of the allegations of the petition to these laws, and considering the broad latitude of discretion with which the county commissioner is clothed, we hold that the judge of the superior court did not err in sustaining the demurrer and dismissing the petition.
Judgment affirmed.