Gulf Paving Co v. City Of Atlanta

• Decision Date: 14 May 1919
• Docket Number: (No. 1101.)
• Citation: 99 S.E. 374,149 Ga. 114
• Parties: GULF PAVING CO. v. CITY OF ATLANTA.
• Court: Georgia Supreme Court

149 Ga. 114

99 S.E. 374

GULF PAVING CO.

v.CITY OF ATLANTA.

(No. 1101.)

Supreme Court of Georgia.

May 14, 1919.

(Syllabus by the Court.)

The city of Atlanta, desiring to repave a portion of a street within the city limits on the basis of assessments against abutting property owners for part of the cost of the improvement and against the property of the street car company which occupied the street for a part of the cost of the improvement, and without any provision for payment of the balance of the cost of the improvement, except that the board of commissioners of roads and revenues of the county of Fulton "had appropriated" a specified amount for that purpose, advertised for bids to make the improyement, and in the advertisement provided that each bidder should deposit $1,000, conditioned to enter into a contract to make the improvement in the event the bid should be accepted, and that upon failure to enter into the contract the deposit should be forfeited to the city as liquidated damages. The Gulf Paving Company filed a bid, and in connection therewith made a deposit of $1,000 with the city, conditioned as above mentioned. The bid was accepted, and after notice of the acceptance a demand was made upon the bidder to execute the contract to do the paving.

The Gulf Paving Company declined, upon the ground that the city had not provided means with which to pay for the work, a fact unknown to it when the bid was made, and consequently had no authority, "under the Constitution and laws of the state, " to enter into the contract. Thereafter, the city having notified the Gulf Paving Company that it would claim the amount deposited as a forfeiture and for liquidated damages, retained for its own use the $1,000 so deposited. The Gulf Paving Company then brought an action for money had and received, to recover that amount. The petition, alleging facts as above indicated, was dismissed on general demurrer, and the plaintiff excepted. The bill of exceptions was returned to the Court of Appeals. That court decided: (1) "Since the adoption of the amendment to section 2 of article 6 of the Constitution of this state, ratified November 7, 1916, * * * and proclaimed by the Governor on December 15, 1916, as a part of the Constitution, the Court of Appeals has no jurisdiction of any case that involves a construction of the Constitution of the state of Georgia." (2) "Under repeated rulings of the Supreme Court, that court will not pass upon a constitutional question not...