Danielly v. Cabaniss

• Decision Date: 31 January 1874
• Citation: 52 Ga. 211
• Parties: John A. Danielly et al., plaintiffs in error. v. Thomas B. Cabaniss et al., defendants in error.
• Court: Georgia Supreme Court

52 Ga. 211

John A. Danielly et al., plaintiffs in error. v. Thomas B. Cabaniss et al., defendants in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1874.)

(Trippe, Judge, having been of counsel, did not preside in this case.)

Municipal corporations. Schools. Constitutional law. Laws. General assembly. Bonds. Negotiable securities. Before Judge Hall. Monroe county. At chambers. December 9th, 1873.

John A. Danielly, Cyrus Sharp, and other tax-payers and citizens of the town of Forsyth, filed their bill against Thomas B. Cabaniss, present intendant, A D. Hammond, former in-tendant, B. M. Turner, former secretary and treasurer, S. D. Mobley, present secretary and treasurer, J. S. Lawton, commissioner of said town, B. Pye & Son, W. L. Lampkin and H G. Bean, bankers, and J. J. Greer, claiming to act as marshal, alleging that they are attempting, without authority of law, to collect of complainants and other citizens $30,000 00 by taxation, defendants claiming this right and power by virtue of a pretended vote of the people of Forsyth, and of certain acts of the legislature. The bill presented the following facts:

In 1871, the president and council of Forsyth negoti ated *for the purchase of the "Monroe Female College, " in the corporate limits, and of the "Hilliard Male Institute, " without the corporate limits, of said town, the terms of the sale being agreed to, but never executed, no deed having been made and delivered to said corporate authorities. Under pretense of raising money to pay for said property, said officers, in October, 1871, held what they called an election; the sole question submitted being whether the town should issue bonds to the amount of $10 000 00, to be sold and the proceeds appropriated to the payment of the purchase money of said property. There was no act of the legislature authorizing, or any laws, general or special, regulating said election. In view of this, many citizens regarded it as a farce, and did not vote; a few only did vote, while a large number, not citizens, did participate. Said election was, therefore, illegal and void, and conferred no power to impose a tax. Yet defendants proceeded to issue said bonds, and have disposed of them in some way unknown; complainants have been informed that they were sold.

On 1st November, 1871, defendants did not issue bonds to the amount of $10,000 00, but notes, bills or currency to the amount of $30,000 00, intended for general circulation, as will appear from the following copy of one of them:

"$10 00. The city of Forsyth will pay ten dollars to the bearer, with interest from date, at the rate of two per cent. per annum, when presented in sums of one hundred dollars or more. Said notes receivable without interest for all dues, if presented before maturity. Forsyth, Georgia, November 1st, 1871. (Signed)

"A. D. Hammond, Intendant.

"B. M. Turner, Treasurer."

They range from ten cents to $10 00, and circulate as currency. They were not sold as bonds are usually sold, but were circulated by Pye & Son and Lampkin & Bean, bankers, who, under an agreement with the town authorities, were to receive $15,000 00 for giving it currency.

*After the issue of this money, defendants attempted to give it the appearance of legality by procuring the passage of an act of the legislature, authorizing the council, through their president and treasurer, to issue bonds in suchsums as would be a circulating medium and have the similitude of money, to secure its circulation. The bill to accomplish this purpose did not receive the executive sanction, nor was it filed in the office of the secretary of state, and published as required by law. At a subsequent session of the legislature, an effort was made by resolution to give it the force and effect of law, which complainants submit cannot be done under the constitution. Defendants, well knowing their utter want of authority to circulate said money, attempted to uphold the same, and to perpetuate further wrongs upon complainants by invoking the sanction of the legislature, in section 10 of an act, approved August 26th, 1872. This act is unconstitutional and void.

Said bills have only a local circulation, and the holders thereof have notice of their illegality, and are fully cognizant of all the facts alleged. Defendants have issued and circulated at least $30,000 00 of said bills, and complainants are informed and believe that they have made issues in excess of that sum. They refuse to make any report or showing as to the amount issued and circulated by them, only replying that the amount is not sufficient to be worthy of report.

Complainants cannot tell to what extent defendants propose to go in this work of oppression, usurpation and wrong, and unless a court of equity interferes they will have to bear the burden of illegal and unjust taxation, or be harrassed with innumerable suits, if, indeed, a common law remedy can be made available at all. In addition to this, such recklessness and extravagance will impair, if not destroy, the credit of the municipal corporation, which complainants desire to maintain. They had hoped that defendants, seeing the ruinous consequences of the whole proceeding, would have desisted from their attempts to force them to pay taxes to redeem said bills, notes or promises.

They are not only levying the tax which, though large, is *inadequate to the payment of said issues, or the redemption of said bills, but are threatening to vex complainants with annual assessments of a similar, if not more exhorbitant character, which is contrary to equity and good conscience; and having no remedy at law, they ask relief of a court of equity, and pray for the writ of injunction to restrain defendants, their agents, attorneys and successors, from issuing, uttering or circulating said currency, change-bills or bonds having the similitude of money, and from proceeding any further to enforce said tax executions against complainants, or any future tax to redeem or pay off said currency, change-bills, bonds, etc.

Complainants disclaim discovery, and pray for a perpetual injunction.

Defendants, by their answer, admit that Greer is the marshal of Forsyth, and that they are attempting to collect the tax executions, but not the sum of $30,000 00. The council claim the right to levy the tax by virtue of the action of the people andthe laws. They admit that the council, in 1871, made arrangements with the trustees of the two colleges for the purpose of taking stock in said institutions. They say that deeds were made to said property, and attach copies, which are substantially as follows: The first deed was executed on the 28th November, 1871, and is from Solon F. Wilder, and other trustees of "Hilliard Institute, " to Benjamin M. Turner, and other commissioners of the town of Forsyth, and for the consideration of $5,500 00, conveys to the said commissioners the 55-95th interest in said Hilliard Male Institute—said commissioners to hold the same subject to the following conditions: "The trustees reserving to themselves the right to control, supervise and manage said Hilliard Male Institute as an institution of learning, elect and choose its teachers, and to pass such rules and regulations as to them may seem best; said trustees agreeing to keep the institution in good repair, and provide an institution suitable to the educational wants of the public."

The second deed recites that the council, having submitted to the legal voters of said town the question of taking stock *in the Monroe Female College and Hilliard Male Institute, and a majority of votes having been cast for subscription, and the legislature having passed an act authorizing the council to issue bonds to enable them to take stock in either or both of said institutions, the trustees of said female college, to-wit John T. Crowder and others, on the 25th of December, 1871, in consideration of the sum of $9,500 00, conveyed to the town council of Forsyth, stock in the Monroe Female College, valued at $13,900 00, to the amount of a 95-135th interest in the same, but to be under the exclusive management and control of the trustees of the institution and their successors.

The defendants admit that an election was held in October, 1871, but say that the first election was held on 20th November, 1869, on the subject of taking stock in either institution—which submission was advertised in the Monroe Advertiser. It was proposed to take stock for the benefit of the public, in accordance with said act of 11th March, 1869, which gave the council authority to make such subscription in behalf of the town. The election was held in accordance with said act. A majority of the citizens sustained the proposed plan of subscription; seemed to be no objection, as they now remember, except that it would enhance the value of Hillyer's and Asbury's property—each of them having a nominal interest in the college.

It was proposed by said submission to take stock in said institutions to the amount of $7,000 00, the bonds to be negotiated and the money raised, to be expended in repairing the college buildings. The bonds were not available, and the council abandoned that part of the scheme. They deny that many prominent citizens of the town did not vote, or that persons outside the town did vote at said election. This is all a pretext to avoid the burdens of citizenship. These bonds were never used. The council being unable to negotiate the bonds, or to use them, until the interests of Messrs. Hillyer and Ashby in saidcollege had been purchased, and until a judgment against *the Hilliard Institute was paid off, abandoned the plan submitted, and proceeded to engage to purchase the interests of said Hillyer and Asbury in said colleges, as well as to take up the judgment aforesaid.

The next movement made was at a public meeting in Forsyth, on the 30th August, 1870, all the citizens participating, the main object being to raise, by private subscription, enough...