City of Athens v. Hemerick

• Decision Date: 01 August 1892
• Citation: 16 S.E. 72,89 Ga. 674
• Parties: MAYOR, ETC., OF CITY OF ATHENS et al. v. HEMERICK et al.
• Court: Georgia Supreme Court

16 S.E. 72

89 Ga. 674

MAYOR, ETC., OF CITY OF ATHENS et al. v. HEMERICK et al.

Supreme Court of Georgia

August 1, 1892

Syllabus by the Court.

1. A municipality desiring to incur a bonded debt, and giving published notice to the qualified voters of the purpose and amount of the bonds, and that they are "to bear interest at a rate not to exceed six per cent. per annum, and to run not exceeding thirty years from the date thereof, the interest to be paid semiannually on the first days of January and July of each year, and the principal of said bonds to be fully paid off within thirty years from the date of the issuance thereof," fails to comply with the statute embodied in section 508i of the Code; the statute requiring that the notice "shall specify what amount of bonds are to be issued, for what purpose, what interest they are to bear, how much principal and interest to be paid annually and when to be fully paid off." Without passing upon other alleged defects, the omission to specify in the published notice how much principal and interest would be paid annually rendered the notice so defective as to afford cause for enjoining the municipal authorities, at the instance of some of the taxpayers applying in their own behalf and in behalf of all others who might choose to join in the application, from issuing or selling bonds based on an election, and the result thereof, held in pursuance of such defective notice, and from levying or collecting any taxes for paying the principal or interest of the same.

2. Under the facts of the present case the application for injunction did not come too late, and some, at least, of the applicants in the petition as amended are not estopped from invoking protection by that means in their own behalf and in behalf of the class which they represent.

Error from superior court, Clarke county; N. L. HUTCHINS, Judge.

Petition by David Hemerick and others against the mayor and council of the city of Athens and others to restrain defendants from issuing, selling, delivering, or in any way disposing of certain waterworks bonds, to enjoin the city from building waterworks, or licensing any company to build, so as to render the city liable on its contract with the present waterworks company, etc. The judge below stated that, being of the opinion that the lack of strict compliance with the requirements of the statute as to what the notice of election should specify would render the issuance of the bonds and the tax ordinance for their payment illegal, he felt constrained to interfere by granting the prayer of petitioners. Defendants excepted, alleging that the court erred in granting the injunction; in holding the notice of the election insufficient, and therefore the proposed issue of the bonds illegal; and in holding that, even if the notice was insufficient, plaintiffs were not estopped from taking advantage of the defect. By cross bill of exceptions plaintiffs allege that the court erred in not granting the injunction on all the grounds prayed; in not holding that the city had no authority, under its charter, to erect an independent system of waterworks; and in not holding that the city was estopped from denying the legality of the contract it had made with the present waterworks company. Judgment affirmed. Cross bill of exceptions dismissed.

A notice published by a city to the qualified voters of the purpose and amount of bonds to be issued by it, and that they are "to bear interest at a rate not to exceed 6 per cent. per annum, and to run not exceeding 30 years from the date thereof, the interest to be paid semiannually on the first days of January and July of each year, and the principal of said bonds to be fully paid off within 30 years from the date of the issuance thereof," fails to comply with Code, § 508i, requiring that the notice "shall specify what amount of bonds are to be issued, for what purpose, what interest they are to bear, how much principal and interest to be paid annually, and when to be fully paid off"; and at the instance of taxpayers the city will be enjoined from issuing and selling bonds based on an election and the result thereof, held in pursuance of such defective notice, and from levying or collecting any taxes for paying the principal or interest of the same.

The following is the official report:

The petition alleged: "Petitioners, residents of Athens, on the behalf of themselves and all others similarly situated who might elect to become parties, and contribute to the costs, brought this petition. The city was chartered by act of 1872 and other amendatory acts, by which the legislative and governmental functions and powers of the city are vested in the mayor and aldermen. Among other powers conferred, it was provided that the mayor and city council should have power by ordinance (1) to levy and collect an annual tax, not exceeding 1 per cent. upon the value of all property within the corporate limits; (2) to pass every other regulation or ordinance that should appear to them necessary and proper for the security, welfare, and interest of the city, or preserving the peace, health, order, and good government of the city. In addition to this, an act was passed authorizing the city to levy a tax of one half of 1 per cent. to meet the interest and principal of $100,000 of bonds, known as 'Northeastern Railroad Bonds,' but to be used for no other purpose. On August 9, 1882, the mayor and council made a contract with Robinson for erecting and maintaining a system of waterworks for the city. By this contract the city obligated itself to grant to Robinson, his successors and assigns, the exclusive right to erect and maintain a system of waterworks as therein contemplated; further agreeing to pay him, his successors or assigns, annually during 30 years $3,000 rental; further agreeing that the city would pass such ordinances as might be necessary and proper to enable him to construct, control, and protect his works; and providing further, that the contract should be binding for 30 years, but that the city should have the right to purchase the waterworks when completed, or at the end of each 10 years thereafter, at a price to be ascertained by arbitration. In pursuance of this contract, the waterworks were completed, and accepted by the city, after full and adequate test and an analysis of the water. The first 10 years have just expired, and the waterworks are in the same condition as when completed, both as to...