Davis v. Dougherty County

• Decision Date: 30 October 1902
• Citation: 42 S.E. 764,116 Ga. 491
• Parties: DAVIS et al. v. DOUGHERTY COUNTY et al.
• Court: Georgia Supreme Court

42 S.E. 764

116 Ga. 491

DAVIS et al. v. DOUGHERTY COUNTY et al.

Supreme Court of Georgia

October 30, 1902

Syllabus by the Court.

1. A general law will not be so construed as to repeal an existing particular or special law, unless it is plainly manifest from the terms of the general law that such was the intention of the lawmaking body.

2. The act of 1891 (Acts 1890-91, vol. 1, p. 241; Civ. Code, § 5458) relating to the publication of notices of sales and orders by certain public officers and others did not repeal or modify that portion of the act of 1879 (Pol. Code, § 377) which requires that notice of an election called for the purpose of determining whether bonds shall be issued by a county shall be published for a space of 30 days next preceding the day of the election.

3. When, at the hearing of an application under the provisions of the act of 1897 (Acts 1897, p. 82; Van Epps' Code Supp. §§ 6074-6081) to validate an issue of bonds, it appears that the notice of the election was published for a period of time less than 30 days next preceding the day of the election, a judgment should be entered declaring the election invalid, and refusing to validate the bonds.

Error from superior court, Dougherty county.

Petition by Dougherty county and others for an order validating a certain bond issue. From a judgment granting the petition, J S. Davis and others bring error. Reversed.

D. H Pope & Son, for plaintiffs in error.

D. F Crosland and W. E. Wooten, Sol. Gen., for defendants in error.

COBB J.

An election was held in the county of Dougherty to determine whether bonds to the amount of $40,000 should be issued for the purpose of erecting a new courthouse. The registration list for the election showed 611 qualified voters. Persons to the number of 427 voted, "For bonds," and 81 voted, "Against bonds." When the application to validate the issue of bonds came on to be heard, certain citizens of the county appeared, and were made parties to the proceedings, and interposed numerous objections to the passage of an order validating the bonds. One of the objections urged was that the notice of the election had not been published the requisite number of days before the election. Upon the hearing it appeared that the order of the county commissioners calling the election was passed on May 5, 1902; that the first notice of the election was published in the newspaper in which the sheriff's advertisements were published in an issue of the paper dated May 10th; and that subsequent insertions of the notice appeared in issues of the paper dated the 17th, 24th, and 31st days of May. It was admitted that the papers were really issued one day before they bore date. The election was held June 5th. It thus appears from the uncontradicted evidence and the admission above referred to that, between the date of the paper in which the first insertion of the notice of the election was given and the date of the election, there were only 26 days, and between the date of the actual issue of the paper and the date of the election there were only 27 days. Having reached the conclusion that a failure to begin the publication of the notice at a time which would be 30 days from the date of the election invalidated the election, it is unnecessary to refer to the other objections which were raised at the hearing of the application to validate the bonds.

The statute provides that the authorities calling such an election "shall give notice for the space of thirty days next preceding the day of election, in the newspaper in which the sheriff's advertisements for the county are published, notifying the qualified voters that on the day named an election will be held to determine the question whether bonds shall be issued by the county, municipality or division." Pol. Code, § 377. It is contended that, in determining what would be a compliance with the section of the Code just quoted, reference must be had to the provisions of the act of 1891, now contained in Civ. Code, § 5458. That act provides that "in all cases where the law of force on October 21st, 1891, required citations, notices, or advertisements, by ordinaries, clerks, sheriffs, county bailiffs, administrators, executors, guardians, trustees or others, to be published in a newspaper for thirty days *** it shall be sufficient and legal to publish the same once a week for four weeks (that is, one insertion each week for each of the four weeks) immediately preceding the term or day when the order is to be granted, or the sale is to take place; and the number of days between the date of the first publication, and the term or day when the order is to be granted or the sale to take place, whether more or less than thirty days, shall not in any manner invalidate or render irregular the said notice, citation, advertisement, or order or sale." Section 377 of the Political Code is a codification of the act of 1879,...