Hannah v. Lovelace-Young Lumber Co.

• Decision Date: 21 February 1925
• Docket Number: 4296.
• Citation: 127 S.E. 225,159 Ga. 856
• Parties: HANNAH ET AL. v. LOVELACE-YOUNG LUMBER CO.
• Court: Georgia Supreme Court

127 S.E. 225

159 Ga. 856

HANNAH ET AL. v. LOVELACE-YOUNG LUMBER CO.

No. 4296.

Supreme Court of Georgia

February 21, 1925

Syllabus by the Court.

A public school board in this state is not subject to be sued by one who furnishes skill, work, tools, machinery, or materials to be used in the erection and completion of a public school building, where such skill, work, material etc., are advanced or supplied to a contractor engaged by the public school board and who has himself contracted to complete the same.

Under the foregoing provison of law, suits for recovery of the value of work, material, etc., furnished to contractors constructing public buildings must be brought upon the contractor's bond in the name of the body contracted with, "for the use of" the person who furnished skill, labor, or materials of any kind.

Mandamus cannot compel a public officer to do an act upon the assumption that the performance of the act which he is commanded to do is a public duty. Consequently, in an action brought to compel by mandamus trustees of a district school to levy a tax, it must be plainly and distinctly alleged and proved that the school district in and for which said trustees have been chosen is a local district in which the levy of the local tax sought to be enforced by mandamus is authorized by law.

Additional Syllabus by Editorial Staff.

In general, "mandamus" applies only to public officers and is available only when there is no other remedy.

Mandamus cannot be applied as remedy to compel act not authorized by law.

Mandamus will not be granted where absence of right would render proceeding nugatory.

Error from Superior Court, Decatur County; W. V. Custer, Judge.

Action by the Lovelace-Young Lumber Company against W. E. Hannah and others, trustees. Judgment for plaintiff, and defendants bring error. Reversed.

Hines J., dissenting in part.

Hartsfield & Conger, of Bainbridge, for plaintiffs in error.

Harrell & Custer, of Bainbridge, for defendant in error.

RUSSELL C.J.

The questions raised by the demurrers, as well as the errors complained of on the trial, are so intimately connected as to be practically indivisible. We shall treat them together, for they are thus argued by counsel for both sides. Counsel for defendant in their brief state:

"The questions involved, broadly stated, are three: First, was the bond taken such an one as the acts of 1916 required? Second, was mandamus the proper remedy in the case at bar? Third, mandamus being the proper remedy and the petition having set out a case requiring the issuance of the writ, is the judgment of the court, ordering plaintiffs in error to levy a tax to pay the debt, error?"

1. Was the bond such as the act of 1916 required? There can be no question that this inquiry must be answered in the negative. Section 1 of the act of 1916, so far as relates to the nature of bonds required thereby, is as follows:

"No contract with this state, a county, municipal corporation, or any other public board or body thereof, for the doing of any public work shall be valid for any purpose, unless the contractor shall give bond, payable to the state or other body contracted with, with good and sufficient surety, for the use of the obligee and of all persons doing work or furnishing skill, tools, machinery, or materials under or for the purpose of such contract, conditioned for the completion of the contract in accordance with its terms, for saving the obligee free from all costs and charges that may accrue on account of the doing of the work specified for the payments as they become due of all just claims for work, tools, machinery, skill and materials furnished by persons under, or for the purpose of, such contract, and for a compliance with the laws appertaining thereto."

This court, in American Surety Co. v. Small Quarries Co., 157 Ga. 33, 120 S.E. 617, ruled: "Where a bond was given by a contractor for the doing of public work, payable to a county of this state, with a compensated bonding company as surety, in such terms as are stated in the question propounded by the Court of Appeals, one who furnished materials to the contractor to be used, and which were used, in the performance of his contract with the county cannot maintain an action therefor in his own name against the principal and surety on the bond, by virtue of the provisions of the act approved August 19, 1916 (Ga. Laws 1916, p. 94)."

In the case before us, as in that cited, the italicized words were omitted from the bond; and hence the provisions of sections 2 and 4 of the act of August 19, 1916 (Ga. Laws 1916, p. 94), as applicable to the requirements of section 1, especially where the facts are identical, have already been construed by this court. In delivering the opinion of the court in the case cited, Mr. Justice Gilbert said:

"We think that the omission of the language italicized above from the face of the bond constituted a substantial variance from the 'manner and form' required under the act of 1916. Construing the bond strictly, as we are compelled to do, under section 3540 of the Civil Code of this state, quoted above, we are driven to the conclusion that the bond is not a statutory bond in compliance with the act in question; and therefore the quarries company could not sue the surety company in their own name."

2. The second question, which is whether mandamus was the proper remedy, is not so easily answered, if we consider all of the expressions contained in the various rulings of the courts in deciding various phases of the matter in the many decisions which have been delivered as to the propriety of proceeding by mandamus in particular cases. However, there are certain general principles with regard to mandamus which are universally recognized. "Mandamus" is a drastic remedy. In general, it applies only to public officers, and is available only when there is no other remedy. Mandamus cannot be applied as a remedy to compel an act not authorized by law. Mandamus will not be granted where the absence of the right would render the proceeding nugatory. Some of the principles which must control the question as to whether mandamus was applicable as a...