City of Thomasville v. Thomasville Electric Light & Gas Co.

• Decision Date: 08 March 1905
• Citation: 50 S.E. 169,122 Ga. 399
• Parties: CITY OF THOMASVILLE et al. v. THOMASVILLE ELECTRIC LIGHT & GAS CO. et al.
• Court: Georgia Supreme Court

50 S.E. 169

122 Ga. 399

CITY OF THOMASVILLE et al. v. THOMASVILLE ELECTRIC LIGHT & GAS CO. et al.

Supreme Court of Georgia

March 8, 1905

Syllabus by the Court.

1. A notice of an election under the act of 1904 (Acts 1904, p 85), providing for the submission of the question of incurring debts other than bonded debts to the taxpayers of counties and municipalities, which notice specifies that the rate of interest shall be "not exceeding 6 per cent. per annum," is not a compliance with the provisions of that act, which requires "the terms of the contract under which the debt is to be incurred" to be set forth.

2. While the charter of the city of Thomasville declares that no person who is not duly registered shall be allowed to vote in any election, there is no provision for registration for any other election than the annual election for municipal officers. Hence in an election lawfully held at any other time, no registration is required to authorize a person otherwise qualified to vote, and in determining whether two-thirds of the qualified voters voted at such election reference must be had to the tally sheets of the last preceding annual election, and not to the registration lists for that election.

Error from Superior Court, Thomas County; R. G. Mitchell, Judge.

Action by the Thomasville Electric Light & Gas Company and others against the city of Thomasville and others. From an order granting an injunction, defendants bring error. Affirmed.

Fondren Mitchell and W. C. Snodgrass, for plaintiff in error.

S. G McLendon and Theo Titus, for defendant in error.

COBB J.

This was an application by certain taxpayers of the city of Thomasville to enjoin the city authorities from incurring a debt which it was alleged they were about to incur under a pretended election claimed to have been held under the provisions of the act of 1904 (Acts 1904, p. 85), carrying into effect the provisions of the Constitution with reference to creating debts other than bonded debts by counties and municipalities. The notice of the election was attacked for various reasons, as well as the validity of the election itself. The judge granted the injunction, and the defendants excepted.

1. The act above referred to declares that the notice of election "shall specify the amount of the debt to be incurred for what purposes it shall be incurred, what amount of the debt is to be paid annually or at shorter periods, the terms of the contract under which the debt is to be incurred, and the language of the ballots to be used in the election for or against incurring the debt." The notice given specified that the amount of the debt to be incurred was $35,000; that the debt was to be incurred "for the purpose of securing for the city of Thomasville, Ga., an electric light and power plant for the generating electricity to be used by the said city, its residents, and those living in territory contiguous to said city, for lighting and power"; and that the debt was "to be paid in annual installments of four thousand ($4,000) dollars each, on the 1st day of February of each and every year after said plant shall be in operation by the said city." The notice also declared that the terms of the contract under which the debt was to be incurred shall be such that the debt "shall bear interest at a rate not exceeding 6 per cent. per annum, and that said annual payment of four thousand ($4,000) dollars shall be applied (1) to the payment of the interest on said debt at the time of said payment; (2) to the principal of said debt"; provided that the city authorities might also apply to the payment of the principal from year to year such of the net earnings of the plant as were not necessary to be used for other purposes in connection with the plant. The notice also stated what language should be employed in the ballots to be voted.

The question to be determined is whether this notice sufficiently complies with that portion of the act which declared that "the terms of the contract" under which the debt is to be incurred shall be set forth in the notice. The policy of the law of this state is, and has been since the adoption of the present Constitution, opposed to the incurring of debts by towns and cities; and it has therefore become the settled rule that all laws in reference to the course to be followed by the public authorities in obtaining consent to contract a debt in behalf of the taxpayers are to be strictly construed, and the consent of the taxpayers is never held to have been given in any case unless the requirements of the law providing the manner in which the debt shall be incurred have been strictly complied with in every material particular. City of Dawson v. Waterworks Co., 106 Ga. 732, 32 S.E. 907; Smith v. Dublin, 113 Ga. 836 39 S.E. 327. Giving to the words "terms of the contract" in the act under consideration that meaning which strict construction requires to be placed upon them, the statute is not complied with when the rate of interest...