Cabaniss v. Hill

• Decision Date: 31 October 1885
• Citation: 74 Ga. 845
• Parties: Cabaniss. vs. Hill, ordinary.
• Court: Georgia Supreme Court

74 Ga. 845

Cabaniss. vs. Hill, ordinary.

Supreme Court of the State of Georgia

OCTOBER TERM, 1885.

County Matters. Constitutional Law. Mandamus. Before Judge Estes. Habersham County. At Chambers. July 10, 1885.

Reported in the decision.

H. V. Washington, for plaintiff in error.

H. S. West; Louis Davis, for defendant.

Jackson, Chief Justice.

This record presents the question, whether or not a mandamus nisi should be made absolute, to direct the ordinary of the county of Habersham to levy a tax upon the property-holders therein, to pay for certain iron doors, cells, pipes for sewers, etc., contracted to be paid for on the twenty fifth of December, with interest, at eight per cent from that date, unless paid for then, the contract bearing date on the 30th of October, 1881. The iron doors, cells, pipes, etc., were furnished for a new jail erected in said county. A tax had been levied for the new jail, but the proceeds seem to have been exhausted. The petition prayed for a mandamus to levy another tax for 1S85, to pay for these articles and their erection or connecting them with the jail. The amount was agreed to be paid in county orders, which were given by the ordinary, payable out of the new jail fund, which, as before stated, was exhausted before these orders were paid.

The judge denied the mandamus absolute, and the movant excepted.

1. The constitution of 1877 is very decided against the creation of any new debt by a county, and the first question meeting us here is this: Is this contract the creationof a new debt in the sense of the constitution of 1877?

That constitution declares that " no such county, municipalities or division shall incur any new debt, except for a temporary loan or loans to supply casual deficiencies of revenue, not to exceed one-fifth of one per centum of the assessed value of taxable property therein, without the assent of two thirds of the qualified voters thereof at an election, " etc. Code, §5191.

This is not a temporary loan to supply deficiencies of revenue. The county borrowed no money, and the contractors loaned it none. The contract declares that the contractors agree " to take and accept the sum of thirty-five hundred and ten dollars in warrants on county treasurer, payable on December 25th, 1884, and bearing eight per cent interest after that date until paid, in full payment for said cells and wrought iron works."

At the November term of the court of ordinary, the orders were issued to " pay out of any money now being collected for new jail fund."

It seems to us pretty clear that this contract created a new debt. It is a contract in writing to pay for certain wrought iron work on the 25th of December next, after the date of the contract, on the 30th of October, and if not then paid, it provides for interest at eight per cent until paid. So that it appears to be a debt due the 25th of December, 1884, and if not then paid, interest is to be paid at eight per cent. It is not only a debt, but it is a debt to pay interest thereafter, if not punctually paid, at a higher interest than that it would bear but for the contract. It contracts a debt, and requires interest at an increased rate of interest if not paid when due.

In the ruling of this court in Spann et al. vs. Webster County, 64 Ga., 500, this court say: " Besides, the purchase of these safes is the creation of a new debt since the.adoption of the constitution of 1877, and is expressly prohibited by the first paragraph of the seventh section of article seven, " without the assent of two-thirds of the qualified voters of the county at an election for that purpose to be held as may be prescribed by law.\' No such election has been held, and a new debt, without its sanction, as a condition precedent, cannot be imposed. The prohibition is emphatic. \'And no such county, municipality or division shall incur any new debt, except for a temporary loan or loans to supply casual deficiencies of revenue, not to exceed one-fifth of one per centum of the assessed value of taxable property therein, \' without the sanction of such a vote." The court then go on to affirm by a unanimous bench the decision in Hudson et al. vs. Mayor, etc, of Marietta, wherein that city was prohibited from incurring a debt for a fire engine by two justices then sitting here. We make the long quotation from Spann et al. vs. Webster County, because the principle there ruled,...