60 Ga. 221 (Ga. 1878), City of Macon v. Huff

Citation:60 Ga. 221
Opinion Judge:JACKSON, Judge.
Party Name:MAYOR AND COUNCIL OF THE CITY OF MACON et al. v. HUFF.
Attorney:WHITTLE & WHITTLE; R. F. LYON; NISBETS & PIEROE; G. W. GUSTIN, for plaintiffs in error. BACON & RUTHERFORD; LANIER & ANDERSON, for defendant.
Court:Supreme Court of Georgia
 
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Page 221

60 Ga. 221 (Ga. 1878)

MAYOR AND COUNCIL OF THE CITY OF MACON et al.

v.

HUFF.

Supreme Court of Georgia.

January, 1878

1. H. was mayor of Macon and ex-officio president of council. Whilst in office he contracted with council to lease the city park for five years; and for an annual sum paid him to fence, drain and keep the same in repair for that period:

Held, that as it was his official duty as mayor to see to it that as contractor he discharged the duties of this executory and continuous contract for five years, public policy forbids that he take a contract which it is his official business to see faithfully performed, and that therefore the contract is illegal.

2. Although a mayor and council, of which he is not a member, might ratify such a contract, inasmuch as such mayor and council could legally have contracted with him ab initio, no act of the city through a council of which he was the official head can operate as such ratification, and inasmuch as he is still at the head of the government of the city, no act yet done or left undone can, by deed or acquiescence, have the effect of legalizing the contract.

3. Equity, however, requires every litigant who seeks her aid to do equity; and inasmuch as the defendant has expended large sums of money in fencing, levying, draining and ornamenting the park, of which the city has received the benefit, equity will not interpose in behalf of the complainant to annul and set aside the contract, though thus illegal, unless the complainant shall first do equity, and to do equity the city must pay the defendant the money so expended and interest thereon, and thus restore him, as far as practicable, to his statu quo, in the absence of actual fraud on his part.

4. Whilst these are the leading principles which will control the adjudication of this case on the final hearing on the merits, yet the chancellor need not, by interlocutory decree or order, grant an injunction or appoint a receiver until the hearing, where the facts set up and proven by answer and affidavits to his satisfaction, show that neither are necessary to secure the ultimate rights of the complainant— the proof being that the park is well kept and open to the use and enjoyment of the people of the city, and that the money already expended by the defendant is in excess even of the estimate of the city of the value of the rents of the park.

5. Inasmuch as the bonds required by the chancellor are of comparatively insignificant amounts and seem to hurt neither party, his discretion has not been abused in the judgment rendered as a whole, and the same is hereby affirmed.

Municipal corporations. Officers. Contracts. Equity. Injunction and receiver. Before Judge Grice. Bibb County. At Chambers. January 19th, 1878.

The following, taken in connection with the opinion, sufficiently reports this case:

Complainants, in addition to the averments as to the main issue, alleged that Huff had, without authority, made and signed officially a note to the City Bank for $2303.00, on which the city had been sued; that the city was not properly liable therefor, but if judgment should be recovered against it, the amount would prove a total loss, as Huff was insolvent. There was a prayer that if anything should be found due by the city to Huff, whether on account of his salary or otherwise, it be first applied to the payment of the claim of the City Bank.

Defendant, after denying complainants' allegations in regard to the note held by the City Bank, and alleging that it was given in lieu of another note indorsed by him as mayor, which had been discounted at the bank and the proceeds used for the benefit of the city, and denying any danger of loss on the part of the city both because the suit could be successfully defended and because if otherwise, he was able to answer to the city for the amount of loss, tendered a bond for that purpose.

The chancellor refused the injunction and appointment of receiver prayed for in the bill, but accepted the bond tendered by defendant for $4000.00. He also ordered that if complainants should except, the original restraining order should remain of force until a decision by the supreme court, upon complainant's filing a bond for $2000.00 payable to defendant for damages and costs.

WHITTLE & WHITTLE; R. F. LYON; NISBETS & PIEROE; G. W. GUSTIN, for plaintiffs in error.

BACON & RUTHERFORD; LANIER & ANDERSON, for defendant.

JACKSON, Judge.

Whilst Wm. A. Huff was mayor of the city of Macon and ex-officio president of council, he leased the city park for five years, paying in advance so much per annum therefor, and agreed to erect certain levies, build and repair fences, grade and gravel walks, and to put and keep the park in repair, and to cut and furnish wood to the poor from what is called the new park, for the sum of three thousand dollars per annnum for the term of five years. There were two contracts made at different times and in respect to different but adjoining tracts of land, known as the park and the new park. These contracts were made in 1875 and 1876, and the same principles of...

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