51 Ga. App. 869 | Ga. Ct. App. | 1935
Lead Opinion
The ultimate question for determination in this case is whether or not the court erred in sustaining a general demurrer to the petition as amended.
The original petition, brought by Quincy L. Williford for the use of the “Mayor and City Council of Madison, a municipal corporation . . ,” against “John L. Moore, Mayor, and M. A. McDowell, A. C. Zachry, B. M. Atkinson, and R. M. Turnell, couneilmen or aldermen of said municipality,” avers in substance that “petitioner is a resident and taxpayer of said municipality;” that “from April 1/30 to April 1/33 said named defendants were
To the original petition the defendants demurred as follows:
1. The petition “sets out no cause of action.”
“2. Because the facts alleged show at most that defendants as Mayor and Aldermen of the municipality appropriated to one lawful purpose money lawfully collected for another, and there is no liability at law for such appropriation.
“3. Because the acts for which it is sought to hold defendants liable were legislative acts performed by them in their capacity as Mayor and Aldermen of the City of Madison, and there is no liability at law for such acts so performed.
“4. Because there is no proper party plaintiff in said petition.
“5. Because the cause of action, if any exists, is not in the plaintiff, and plaintiff has no right, power, or authority to sue defendants on said alleged cause of action.
“6. Because plaintiff is not entitled to sue on said alleged cause of action for the use of the municipality, for that he has no cause of action and is not entitled to sue on said alleged cause of action.
On March 1, 1934, substantially the following amendment to the petition was allowed, subject to demurrer:
“ 10. At the time of filing this suit, and for a considerable time prior thereto, the Mayor and Council of the City of Madison were: M. A. McDowell, Mayor, R. M. Turnell, A. C. Zaehry, B. M. Atkinson, and B. S. Thompson, four of the five' being defendants herein.
“11. Plaintiff alleges that the foregoing named officials have had entire control, under the law, of the financial and other affairs of the corporation, The Mayor and City Council of Madison, and to have called upon them in their official capacity to file suit . . against themselves in their individual capacity would have been manifestly futile and useless, and that, moreover, such a suit filed in such a manner could not have been of any benefit to said municipality.
“13. The utter futility of any demand on the officers aforesaid . . to file suit in the name of the corporation against themselves individually is conclusively shown by the admission in judicio made by the defendants . . , in that said defendants have filed an answer herein by which they deny any liability on account of the matter complained of . . , such answers being an admission that they would not have complied with any such demand,” and their “conduct and acts have uniformly and consistently evidenced the fact that they would not have . . sued themselves.”
On March 1, 1934, the defendants demurred generally and specially to the petition as amended, the substance of the general demurrer being that “neither Q. L. Williford nor said municipality have any right or cause of action, . . because the petition shows on its face that either of said parties is estopped to bring such an action, because they permitted, with full knowledge, for a long series of years said money to be so appropriated and expended.” On March 31, 1934, the petition was for the second time amended, “subject to demurrer,” substantially as follows:
13. While petitioner is not subject to special taxes assessed by
In passing upon the petition as amended at this stage of the case, the court said in part: “The question then resolves itself in, is there a legal cause of action set forth in the original petition and the two amendments under the laws of Georgia ? . . The gist of the allegations in this petition and amendments thereto is that the defendants . . while they were acting as Mayor and Aldermen of the City of Madison paid over to the trustees of the Madison High School more of the ad valorem taxes than authorized by the charter of said city. There is no allegation that the defendants fraudulently disposed of any of said funds . . , but only by resolution diverted said ad valorem taxes to said school.” After quoting headnote 2 of the decision in the case of HcOord v. Jackson, 135 Ga. 176 (69 S. E. 23), the court said: “As was said in subparagraph (a) of said headnote, there are no allegations in said petition and amendment charging any specific diversion of funds to any named unlawful purpose. . . The resolution diverting certain parts of the ad valorem taxes,- as charged in the 'pleadings in this case, to said school was a governmental action, and, under section 897, said defendants acting as Mayor and Aldermen of the City of Madison would not be personally liable under the laws of Georgia. . . Therefore it is ordered . . that the general demurrers . . be sustained, with the proviso that said plaintiff is allowed until June 4, 1934, to tender any desired amendment . . ”
On June 4, 1934, substantially the following amendment was allowed subject to demurrer:
“14. That the funds so illegally diverted . . had been raised by taxation and funds for other purposes, principally [to?] pay
“15. That, notwithstanding the said raise of taxable values beyond their true market values, the purposes for which the money so raised and so diverted have suffered materially; that had such funds not been so diverted the streets and public parks of the said city . . would have received needed care and improvement, the lights in said city would not have been so materially reduced as to be now in need of many more lights . . , and the bonded and other indebtedness . . reduced or a proper sinking fund created for payment of such indebtedness, the city’s financial standing and credit strengthened, and its streets, lights and other public works improved and properly cared for.
“16. That at the time such diversions were made to the school fund, it was impossible for the municipal authorities to raise additional funds by taxation during the current year to supplement the funds from which the moneys aforesaid were diverted, the taxing power for the year having been exhausted.”
To the petition as thus amended, the defendants demurred upon the same grounds hereinbefore stated, and also demurred upon several special grounds which we deem it unnecessary to state.
The plaintiff then offered the following amendment to the petition, which was allowed, subject to demurrer, and ordered filed as a part of the record:
“17. That the petitioner has been a resident and taxpayer of said municipality continuously since September 1, 1890, and was such at all times mentioned in the petition, and is now such.
“18. That the diversions and misappropriations of the public-school funds complained of . . took place during the years mentioned therein, the exact date of each diversion and how each diversion was accomplished and through what form, if any, defendants went, are matters peculiarly within the knowledge of the defendants.”
' The bill of exceptions assigns error upon the “judgment sustaining said general demurrers and dismissing plaintiff’s petition.”
The trial judge bases his judgment sustaining the demurrer and dismissing the petition as amended upon the ruling in the case of McCord v. Jackson, supra. We quote from that decision as follows :
“2. Municipal authorities are not personally liable in an action to recover money lawfully collected by them for one purpose, but applied to some other lawful liability of the municipal^, unless some charter provision or the general law of the State imposes a liability on them in such instances, or unless their action puts it beyond the power of the municipality lawfully to raise during the current year, the money with which to discharge the obligations for which the funds thus misapplied were originally intended.
“(a.) There are no allegations in the pleadings charging any specific diversion of funds to any named unlawful purpose. General allegations to the effect that funds were diverted to unauthorized purposes are too indefinite to charge personal liability on the officials because of the wrongful misapplication of such funds.”
In the case of Hicksville v. Blakeslee, 103 Ohio State, 508 (134 N. E. 445, 22 A. L. R. 119), it was held that the members of a municipal council, who in good faith, but in violation of statute, had enacted an ordinance relating to the sale of municipal bonds, could not be held personally liable for sums paid out under the supposed authority of the void ordinance. In that case the court said: “The demurrer, then, presents the square question whether a councilman acting in good faith, who votes for an unauthorized and
There is a vast difference between a proceeding to restrain the officers of a municipality from appropriating more of its funds to a particular purpose than could be legally done, and an action at law brought by a citizen and taxpayer of the municipality, for its use, to recover from such officers a large sum of money which, by the official act of such officers, had been “illegally, without authority of law, and in dereliction of their duty” (but not in bad faith) diverted to a legal purpose, when the defendants have not benefited in any way by their act and the municipality has not lost a penny of its money thereby. Under the foregoing authorities, we hold that the petition in the instant case does not set out a cause of action, and that the court did not err in sustaining the general demurrer and dismissing the petition.
If the conclusion reached above is correct, the case crumbles at its very foundation, and it becomes unnecessary to decide the other questions raised by the demurrer.
Judgment affirmed.
Dissenting Opinion
dissenting. In my opinion the petition as finally amended set out a cause of action, and the court erred in dismissing it on general demurrer. The cases cited in the opinion of the majority of this court are distinguished by their particular facts from this case.