Jones v. Bank of Cumming

• Decision Date: 24 November 1908
• Citation: 63 S.E. 36,131 Ga. 614
• Parties: JONES, Ordinary, v. BANK OF CUMMING.
• Court: Georgia Supreme Court

63 S.E. 36

131 Ga. 614

JONES, Ordinary, v. BANK OF CUMMING.

Supreme Court of Georgia

November 24, 1908

Syllabus by the Court.

Section 343 of the Political Code of 1895 requires that all contracts entered into by the ordinary (or county commissioners having charge of the county affairs) with other persons in behalf of the county must be in writing and entered on their minutes. If the proper county authorities refuse to make the entry mandamus will lie to compel them to do so, upon the application of a person authorized to institute the proceeding.

[Ed Note.-For other cases, see Mandamus, Cent. Dig. § 180; Dec Dig. § 84. ^[*] ]

Where an ordinary entered into a written contract on behalf of the county for the erection of a courthouse, but failed to enter it on the minutes, and the contractor in the progress of the work procured loans from a bank for the purpose of completing it, and gave written orders to the bank authorizing it to receive the remaining warrants issued under the contract, the bank had such a special interest as authorized it to proceed by mandamus to compel the ordinary to enter the building contract on his minutes.

[Ed Note.-For other cases, see Mandamus, Cent. Dig. §§ 55-58; Dec. Dig. § 22. ^[*]]

Where an ordinary made a contract on behalf of the county for the erection of a courthouse, he was not authorized thereafter to accept written orders given by the contractor to a bank, from which the latter had borrowed money to use in connection with the contract, for the delivery of the warrants for the balance of the contract price to such bank, and thereby to bind the county.

[Ed. Note.-For other cases, see Counties, Dec. Dig. § 114. ^[*]]

Inasmuch as the ordinary was without authority to bind the county by such an acceptance as that indicated in the preceding headnote, it was not in law the contract of the county, and therefore the ordinary will not be required by mandamus to enter such an acceptance upon his minutes.

Error from Superior Court, Forsyth County; Geo. F. Gober, Judge.

Mandamus by the Bank of Cumming against H. V. Jones, as ordinary. Judgment for plaintiff, and defendant brings error. Affirmed, with direction.

See, also, 62 S.E. 68.

J. P. Brooke, L. A. Henderson, and J. K. Hines, for plaintiff in error.

H. L. Patterson and Geo. L. Bell, for defendant in error.

LUMPKIN J.

"All official duties should be faithfully fulfilled, and whenever, from any cause, a defect of legal justice would ensue from a failure or improper fulfillment, the writ of mandamus may issue to compel a due performance, if there be no other specific legal remedy for the legal rights." Civ. Code 1895,§ 4867. Was there a legal duty on the part of the ordinary to enter on his minutes the contract for the building of the courthouse, and the order given by the contractor to the bank, and his acceptance thereof? If so, would there, from any cause, ensue a defect of legal justice from a failure or improper fulfillment of this official duty? If so, did the applicant for the writ of mandamus have such an interest in the subject-matter as to authorize it to institute the proceeding? And, finally, was there any other specific legal remedy? First we will consider the questions in relation to the contract between the ordinary on behalf of the county and the contractor, and afterwards we will refer separately to the question of entry on the minutes of the order given by the contractor to the bank and its acceptance by the ordinary.

1-3. Section 343 of the Political Code of 1895 reads as follows: "All contracts entered into by the ordinary with other persons in behalf of the county must be in writing and entered on their minutes." On whose minutes? Those of the ordinary. Whose duty is it to keep those minutes and to make the proper entries upon them? Evidently that of the ordinary, or perhaps his clerk, if he has one. In this instance he has none, and therefore any possible question as to the duty of the ordinary himself, where there is a clerk, does not arise. If it was the duty of the ordinary to have entered on the minutes the contract when it was made, when did it cease to be his duty to do so? Certainly the continued neglect on the part of an officer to discharge an official duty resting upon him does not cause the duty to terminate. If it was the duty of the ordinary to have entered the written contract for the building of the courthouse upon his minutes on the day it was made, it was no less his duty to have entered it on the next day, or on the day after that, or on each subsequent day. If the duty once arose, there is no law which made it cease to be a duty until it was complied with. There is no controversy that the respondent in this case, as ordinary, had upon him the official duty of entering the contract for the building of the courthouse upon the minutes. Neither is there any controversy that he has not discharged that duty. It has been held that mandamus will lie to compel an entry on official minutes of a contract, judgment, or other proceeding, where it is the duty of an officer to record it and he fails to do so; and also to compel the adding of seals to contracts, or approving them, where it is not discretionary, or doing other similar ministerial acts to perfect them. Milburn v. Commissioners of Glynn County, 112 Ga. 160, 37 S.E. 178; Independent Dist. of Eden, etc., v. Rhodes, 88 Iowa 570, 55 N.W. 524; Hall v. Grossman, 27 Vt. 297; Smith v. Moore, 38 Conn. 105; Prescott v. Gonser, 34 Iowa 175; People v. Connolly, 2 Abb. Prac. (N. S.) 315; People v. Contracting Board, 46 Barb. (N. Y.) 254; Merrill on Mandamus, § 124.

Had the applicant such an interest as authorized it to institute the proceeding? The bank furnished money to the contractor for the purpose of carrying out the contract. It has received from him an order for the delivery to it of the warrants for the unpaid amount which may be due. According to the allegations of the petition, it will be the real beneficiary of whatever may be paid on the contract or recovered in a suit upon it. Whether such a suit could be instituted in the name of the bank, or in the name of the contractor for its use, is not now in question. The amount due to the bank will cover the entire remaining payment which is to be made, if anything is due. The contractor really has no further interest in the proceeds which may be derived from the contract or its enforcement, according to the allegations made by the bank. It is the party really interested in determining the question of what, if any, balance remains due. This cannot be done, nor can questions arising on the building contract be adjudicated, with the contract unrecorded. The bank, therefore, had such an interest as authorized it to proceed to have the contract entered on the minutes.

In Savannah & Ogeechee Canal Co. v. Shuman, 91 Ga. 400, 17 S.E. 937, 44 Am.St.Rep. 43, an application for mandamus against a chartered canal company, to compel it to keep its canal in a navigable condition, was made by a person who was engaged in the lumber business, who for several years had used the canal for transporting timber and other things, and who alleged that, because of its unnavigable condition, he was compelled to ship his timber by a more circuitous and expensive route. In the opinion of the court it was said: "It is clear, therefore, that he is specially interested in the navigation for which this canal was chartered, and that by a failure of the company to keep the canal navigable he sustains a special damage in which the general public does not share." In Coffee v. Ragsdale, 112 Ga. 705, 37 S.E. 968, where the sheriff of a county selected a newspaper in which to publish his legal advertisements, and the ordinary declined to publish his advertisements in the same paper, the proprietor thereof was held to have such a special interest as to authorize him to apply for a mandamus to compel the latter official to make the publication in his paper. In So. Ry. Co. v. Atlanta Stove Works, 128 Ga. 207, 57 S.E. 429, a shipper over a railroad was held to have such a special interest in the observance by the carrier of rates promulgated by the State Railroad Commission as to furnish a basis for compelling the railroad company to observe them as to shipments tendered by it. In Dennington v. Mayor and Council of Roberta, 130 Ga. 494, 61 S.E. 20, a teacher who had been employed in a public school was held to have such a special interest that he might require the municipal authorities to levy and collect a tax for the payment of his salary. In Manson v. City of College Park, 131 Ga. 429, 62 S.E. 278, where an election had been held under the act of August 7, 1906 (Acts 1906, p. 121), to provide for the change of county lines within the limits of incorporated towns and cities, and the ordinary of one of the counties failed and refused to join in completing the readjustment and change of the county lines, an application for mandamus, in which the municipality and some of its citizens and taxpayers joined, was granted, and it was held that the citizens and taxpayers had such an interest as authorized them to proceed. This is not the enforcement of an equitable right by mandamus, but the enforcement of compliance by an officer with his legal duty at the instance of one having a special interest.

It has been suggested that the object of the law in requiring an entry of such contracts on the minutes is to give information easily accessible to the public as to the character of contracts being made by the county authorities. If it be a right on the part of the citizens to have the ordinary record contracts made by him for public information, possibly any citizen, or at least any taxpayer, might enforce that duty. It is patent that there...