Cochran v. City of Thomasville
| Decision Date | 22 November 1928 |
| Docket Number | 6437,6449. |
| Citation | 146 S.E. 462,167 Ga. 579 |
| Parties | COCHRAN et al. v. CITY OF THOMASVILLE et al. CITY OF THOMASVILLE et al. v. COCHRAN et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
The allegations of the petition as amended were not subject to the demurrer.
The act of 1925 (Ga. Laws 1925, p. 1480 et seq.), to authorize and empower the mayor and council of the city of Thomasville to establish and change the grade of any streets, etc., in said city, and to provide for the issuance of bonds by such mayor and council, and for the payment of the same, etc., is not unconstitutional and void for any of the reasons assigned.
Where the mayor and council of the city of Thomasville undertook by ordinance to pave certain streets within the city, and to issue bonds for the payment thereof under the act of 1925 supra, and certain abutting property owners on said streets saw the improvements being made, which resulted in enhancement in the value of their property, and took no steps before the work was commenced, nor while it was being done nor for some months after it was completed and accepted for the city from the contractor, it was too late for such property owners to complain for the first time and seek to enjoin the delivery of the bonds issued for the purpose of paying for such improvements, without offering to do equity by paying for the benefits received.
Under the pleadings and evidence the trial judge did not err in refusing an interlocutory injunction; nor did he err in overruling the demurrer to the petition and the demurrer to the answer.
Error from Superior Court, Thomas County; W. E. Thomas, Judge.
Petition for injunction by C. W. Cochran and others against the City of Thomasville and others. From the judgment refusing an injunction, plaintiffs bring error, and defendants file cross-bill of exceptions. Affirmed on both bills of exceptions.
C. E Hay, of Thomasville, for plaintiffs in error.
P. C Andrews and Titus & Dekle, all of Thomasville, for defendants in error.
C. W. Cochran and 25 other citizens and taxpayers of the city of Thomasville brought a petition against the city of Thomasville and the Wesco Company, seeking to enjoin them from issuing, delivering, and transferring certain street improvement bonds, which, if issued, would be liens on the property of the plaintiffs. In pursuance of the act of 1925 (Ga. L. 1925, p. 1480), the city of Thomasville adopted a resolution under which certain streets of the city were to be paved and bonds issued for the payment of the work, and assessments for the payment of the bonds were to be made against the abutting property owners on the streets to be paved. Demurrers to the petition as amended were overruled, and exceptions were filed by the defendants. Answers were filed by the defendants, demurrers to the answer were overruled, and exceptions were filed by the plaintiffs. At the hearing the judge dissolved the temporary restraining order and refused an injunction, and this judgment was excepted to in the main bill of exceptions. The defendants filed a cross-bill of exceptions complaining of the overruling of the demurrer to the petition.
1. The record in this case is very voluminous, and it would be unprofitable to set out in detail all of the numerous pleadings and contentions of the plaintiffs and the defendants. Suffice it to say, the entire record and the briefs for both parties have been painstakingly and carefully considered, and only the controlling questions in the case are discussed and dealt with. We are of the opinion that the court below correctly overruled the demurrers to the petition and to the answer, and did not err, after hearing evidence, in denying the temporary injunction. One of the main questions for consideration is whether the court below should have overruled the demurrer to the petition seeking to enjoin the issuance and delivery of the bonds in question and to declare the contract void which was entered into between the city of Thomasville and the contractor in the paving project, for the reason that the act authorizing the issuance of the bonds was void and that the ordinance passed in pursuance thereof and the contract entered into in pursuance of the ordinance were void. The petition alleges, among other things, that the entire contract of February 18, 1927, between the city of Thomasville and the Wesco Company, is illegal and unenforceable, because of the following facts:
(a) The firm of Titus & Dekle is a partnership composed of Theo Titus, Sr., and Lebius Dekle, both of whom are attorneys at law and engaged in the practice of their profession under the partnership name.
(b) Theo Titus, Sr., is also a councilman of the city of Thomasville and has been such continuously since the beginning of his present term of office in January, 1927. He held such office at and prior to the time of the advertisement for proposals, and prior to the time the paving contract was entered into by and between the defendants, which has resulted in the proceedings indicated by exhibits attached to the petition.
(c) The firm of Titus & Dekle, including councilman Titus, was employed by the Wesco Company to serve it as attorneys at law in all matters pertaining to that contract, in so far as such company then deemed that it needed or would need any local legal advice in the matter. Said attorneys were so employed by the Wesco Company before the paving contract was entered into on or about February 1, 1927, since which time these attorneys furnished all such legal advice and representation as said company has found needful or desirable in said city and in connection with the said paving enterprise.
(d) Prior to making the contract of February 18, 1927, the said attorneys under and by virtue of their employment advised the Wesco Company with respect to the constitutionality of Thomasville's "baby-bond act" and the validity of the proceedings leading up to the contract. After the paving contract was entered into, said attorneys prepared and furnished such data and records as were desired and needed by the company in its negotiations with bond-buying concerns of New York City, and with the attorneys of such bond-buying concerns. This case is the first litigation growing out of said paving contract, and said attorneys are counsel for the Wesco Company in this litigation.
(e) At the time said attorneys were so employed by the Wesco Company that company knew that it was employing as its attorney at law a member of said city council.
(f) Since that time and throughout all the proceedings of said city council subsequent to such employment, including the making and entering into said paving contract by and between said city and said company and the agreements upon all the provisions thereof, the said councilman, Titus, has, with the full knowledge and consent of the said contractors, participated as such councilman as fully and completely as if he had not been one of the attorneys at law for said contractor.
(g) Plaintiffs are without knowledge as to the exact amount of the fee paid or agreed to be paid by the Wesco Company to its attorneys for said service, but the sum is well known to the defendant company and to its attorneys of record.
(h) None of the foregoing facts respecting such dual agency were known to petitioners at the time the original petition in this case was filed, nor at any time prior thereto.
(i) Petitioners now aver that because of the foregoing facts respecting such dual agency and because Titus, while under employment as attorney for said Wesco Company, participated as a councilman of said city in awarding said contract to said Wesco Company, and in fixing the terms and provisions of the contract, and also participated as such councilman in all the proceedings of said city council subsequently taken, pertaining to the said contract or to its performance, and also participated as such councilman in each of those proceedings indicated by the exhibits attached to the original petition, which themselves resulted from said contract--for all of these reasons the paving contract of February 18, 1927, each and every proceeding of said city council pertaining to the alleged appraisals and assessments, and the said resolution of October 10, 1927, as appears by an exhibit annexed to the original petition, are illegal, null, void, and unenforceable.
For the purposes of considering the demurrer to the petition, the foregoing allegations must be taken as true; and taking them as true, we are of the opinion that the court, in passing upon these and other allegations of the petition, which it is unnecessary now to set out, did not err in overruling the demurrer. The Civil Code 1910, § 900, declares that it is improper and illegal for a member of a city council to vote upon any question brought before the council in which he is personally interested. And see Daly v. Ga. So. & F. R. Co., 80 Ga. 793, 7 S.E. 146, 12 Am.St.Rep. 286; Hardy v. Gainesville, 121 Ga. 327, 48 S.E. 921; Macon v. Huff, 60 Ga. 221; Dorsett v. Garrard, 85 Ga. 734, 11 S.E. 768; West v. Berry, 98 Ga. 402, 25 S.E. 508; Twiggs v. Wingfield, 147 Ga. 790, 95 S.E. 711, L.R.A. 1918E, 757; Montgomery v. Atlanta, 162 Ga. 534, 134 S.E. 152, 47 A.L.R. 233; Arthur v. Ga. Cotton Co., 22 Ga.App. 431, 96 S.E. 232; Napier v. Adams, 166 Ga. 403, 143 S.E. 566.
2. In the amendment to the petition it is alleged that the resolution of the mayor and council of Thomasville, of October 10, 1927, set out in the petition as Exhibit G, is unconstitutional and void, for the following reasons:
(a) It is provided by the general law of this state (Civil Code 1910, § 3431) that: "In the absence of an agreement to the contrary, interest does not run until default."
(b)...
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