Beazley v. De Kalb County

• Decision Date: 18 March 1953
• Docket Number: No. 2,No. 34558,34558,2
• Parties: BEAZLEY et al. v. DE KALB COUNTY et al
• Court: Georgia Court of Appeals

Page 657

75 S.E.2d 657

87 Ga.App. 910

BEAZLEY et al. v. DE KALB COUNTY et al.

No. 34558.

Court of Appeals of Georgia, Division No. 2.

March 18, 1953.

Rehearing Denied April 1, 1953.

SYLLABUS BY THE COURT.

1. All applications for a continuance are addressed to the sound legal discretion of the court, and in all cases the party making the application for a continuance must show that he has exercised due diligence. Accordingly, in a civil action to which the State is a party, and which is accordingly entitled to priority of hearing, the court did not err in failing to grant a continuance on motion of the intervenor, based on the sole ground that he had been absent from the State and had not heard of the case in time to make preparation for the hearing.

2. (a) The resolution of the Commissioner of Roads and Revenues of DeKalb County here under attack in a bond validation proceeding is not in violation of article VII, sec. VII, par. V of the Constitution of Georgia, Code Ann. § 2-6005.

(b) Nor does it appear that the effect of the resolution would be to violate such constitutional provision due to the inclusion therein of certain costs alleged to be illegal, but which, although not specifically authorized, are necessarily incidental to the doing of an act which is specifically authorized.

3. The resolution is not in violation of art. IV, sec. IV, par. I of the Constitution as being in restraint of trade and tending to create a monopoly.

4. (a) The trial judge was authorized to find, under conflicting evidence, that the proposed undertaking is practical and feasible.

(b) The trial judge was further authorized to find from the evidence adduced at the hearing that the purpose to which the undertaking is to be put is that contemplated by the General Assembly in the act of 1937 as amended, Ga.L.1937, p. 761, Code Ann.Supp. chapter 87-8, authorizing the undertaking, and that the same in no way offends the constitutional provisions, art. 7, § 7, par. 5 and art. 4, § 4, par. 1, Code Ann. §§ 2-6005 and 2-2701, as applied to the facts of this case.

Pursuant to a resolution of the Commissioners of Roads and Revenues of DeKalb County under the Revenue Certificate Law of 1937, as amended, the State of Georgia, on November 25, 1952, filed a petition against DeKalb County, seeking a validation of certain revenue anticipation certificates, in the sum of $12,000,000, sought to be issued by DeKalb County for the acquisition and construction of truck and railroad freight terminal facilities, the structures to contain about 2,000,000 square feet of storage space and to be located on a tract of land consisting of approximately 120 acres lying adjacent to a line of the Seaboard Railway and between two main highways in DeKalb County. Hearing of the rule nisi was set for December 8, 1952. The county filed an answer praying for judgment in favor of such validation. On December 8 the intervention of F. W. Beazley, Sr., a warehouseman, also a citizen and taxpayer of DeKalb County, was filed, and the hearing on the rule nisi was continued until the morning of December 9. The intervenor moved for a continuance, which motion was overruled. After hearing evidence the trial court entered judgment in favor of validation of the revenue certificates. The intervenor thereafter filed his bill of exceptions directed to the Supreme Court, assigning error on the failure of the trial court to grant the continuance and on the judgment validating the certificates. The Supreme Court transferred the case to this court. The bill of exceptions assigns error as follows: (1) on the failure of the trial court to grant a continuance on motion of the intervenor; (2) because the resolution of the county commissioners, setting out the purposes for which the bonds are sought to be issued, is in violation of pertinent provisions of the Constitution of the State of Georgia; (3) that it is unconstitutional as tending to create a monopoly; and (4) because the evidence elicited on the hearing shows the project to be wholly unreasonable, unsound, and impracticable.

W. Harvey Armistead, Decatur, Robert W. Spears, Wm. G. Grant, Grant, Wiggins, Grizzard & Smith, Robert B. Troutman, Atlanta, for plaintiff in error.

Roy Leathers, Sol. Gen., J. A. McCurdy, Jr., J. Robin Harris, W. Harvey G. Armistead, Decatur, Dan MacDougald, Jr., MacDougald, Troutman, Sams & Schroder, Eugene Cook, Atty. Gen., Atlanta, for defendant in error.

Tye, Cooper & Bell, Marshall, Greene, Baird & Neely, Heyman & Abram, Alston, Sibley, Miller, Spann & Shackleford, Spalding, Sibley, Troutman & Kelley, Atlanta, for amici curiae.

TOWNSEND, Judge.

1. Upon the call of the case for hearing before the trial court on the rule nisi, the intervenor moved for a continuance on the ground that he had been out of town and had not known about the proceeding until four or five days before the hearing, and that he had not had ample time in which to locate witnesses and secure their testimony in support of his intervention. No witnesses had been subpoenaed in his behalf at that time. Code, § 81-1419 provides that 'applications for a continuance are addressed to the sound legal discretion of the court'. Code, § 81-1416 provides that 'In all cases, the party making the application for a continuance must show that he has used due diligence.' The discretion of the trial court in granting or refusing a continuance will not be disturbed by the appellate court unless it appears to have been manifestly abused. Stanley v. Amos, 79 Ga.App. 297 et seq., 53 S.E.2d 568; Clay v. Barlow, 73 Ga. 787(2); Betenbo v. Brooks & Taylor, 17 Ga.App. 754, 88 S.E. 411. Also, this is a civil case in which the State is a party and, under the provisions of Code, § 81-1005, the courts shall give preference to such cases and use 'all the power vested in them by law to bring such cases to a speedy trial * * *.' In view of the wide discretion vested in the trial court on the question of continuances generally, and in view of the provisions of Code, § 81-1005, where the State is a party to a civil action, the trial court did not abuse its discretion in refusing the continuance.

2. The transfer of this case from the Supreme Court to the Court of Appeals adjudicates that no construction of the Constitution of Georgia or question as to the constitutionality of any statute is involved herein. The jurisdiction of the Court of Appeals extends to decisions of questions of law which involve application in a general sense of unquestioned and unambiguous provisions of the Constitution to a given state of facts, including the question of whether a resolution of the county commissioner is unconstitutional because in excess of powers conferred by our State Constitution. Maner v. Dykes, 183 Ga. 118, 187 S.E. 699; Nilsen v. City of LaGrange, 183 Ga. 742, 189 S.E. 511; City of Waycross v. Harrell, 186 Ga. 833, 199 S.E. 119; Moore v. City of Tifton, 207 Ga. 443, 62 S.E.2d 182; Carter v. Bishop, 209 Ga. 146, 71 S.E.2d 216. It is contended that the county resolution in question is in violation of article VII, sec. VII, par. V of the Constitution of Georgia, Code Ann. § 2-6005, providing that revenue-anticipation obligations may be issued by any county when such political subdivision is authorized by the Revenue Certificate Law of 1937, as amended, Ga.Code Ann. § 87-801 et seq.

(a) Contrary to the usual legislative scheme, by which the acts of the General Assembly follow the provisions of the Constitution, here the act comes first, granting to counties and municipalities certain powers, Ga.L.1937, p. 761, 1939, p. 362. Then comes the constitutional provision of 1945, Art. VII, sec. VII, par. V, Code Ann. § 2-6005, which provides in part: 'This authority shall apply only to revenue anticipation obligations issued to provide funds for the purchase, construction, extension, repair or improvement of such facilities and undertakings as are specifically authorized and enumerated by said Act of 1937, as amended by said Act of 1939 * * *.' (Emphasis added.)

Under the Revenue Anticipation Certificate Law of 1937 as amended in 1939, Chapter 87-8, Code Ann.Supp., a county, Code Ann.Supp. § 87-802(b), may issue revenue-anticipation certificates to finance in whole or in part the cost of the acquisition, construction, reconstruction, improvement, betterment, or extension of any undertaking, Code Ann.Supp. § 87-803(c) (1), and do all things necessary or convenient in the exercise of the powers herein granted, § 87-803(e). An undertaking as used in Code Ann.Supp. § 87-803(c)(1), supra, under the terms of the law, § 87-802(a), includes the following revenue-producing undertakings, § 87-802(a)(2): highways, parkways, airports, docks, piers, wharves, terminals, and other facilities. Since the authority is limited by the constitutional provision hereinbefore quoted to undertakings specifically authorized, the words 'and other facilities' are not considered in determining whether or not the undertaking proposed by the resolution of the county commissioner is within the authority granted. This leaves in the particular category under consideration 'highways, parkways, airports, docks, piers, wharves, and terminals.'

(a) The meaning of the word 'terminals' therefore becomes material in order to determine whether the undertaking is authorized by the statute and not excluded by the constitutional provision.

The structures sought to be built are, in the language of the resolution of the Commissioner of Roads and Revenues of DeKalb County, the constitutionality of which document is under attack, 'truck and railroad freight terminal facilities.' The law specifically authorizes the construction of 'terminals.' The undertaking, however, is specifically set forth in the resolution only as '16 strip type masonry buildings with railroad sidings in the rear the full length of each building, and the front located far enough from the project streets to permit complete off-street...