Lewis v. Lofley

• Decision Date: 27 January 1894
• Citation: 19 S.E. 57,92 Ga. 804
• Parties: LEWIS et al. v. LOFLEY et al., Road Commissioners.
• Court: Georgia Supreme Court

19 S.E. 57

92 Ga. 804

LEWIS et al. v. LOFLEY et al., Road Commissioners.

Supreme Court of Georgia

January 27, 1894

Syllabus by the Court.

1. Without the preliminary sanction of a popular vote, as required by the constitution, the public authorities of a county cannot contract for the building of a courthouse on the credit of the county for an amount in excess of funds in hand and the proceeds of taxation applicable to the object for the year in which the contract is made.

2. In so far as the case of Butts v. Little, 68 Ga. 272 either expressly or by implication conflicts with the foregoing adjudication, the same is overruled. The constitutional power to incur a debt for a temporary loan to supply casual deficiencies of revenue cannot be construed as authority for incurring a debt, not for a loan of any kind but for the erection of a courthouse.

3. While it might not necessarily be error to deny an injunction restraining the county authorities from incurring a debt which they have no power to create, yet, where the judge expressly authorizes the making of an unconstitutional contract in lieu of the one he has enjoined, his decision, to this extent, should be overruled.

Error from superior court, Macon county; W. H. Fish, Judge.

Action by E. B. Lewis and others against S. T. Lofley and others commissioners of roads and revenues of Macon county, for an injunction. From the judgment rendered, plaintiffs bring error. Reversed.

SIMMONS J.

Lewis and others, citizens and taxpayers of Macon county, brought their action against the commissioners of roads and revenues of that county, to enjoin them from proceeding further under a contract entered into on October 3, 1893, by said commissioners with Wallen & Co., of Alabama, as contractors, for the building of a new courthouse for the county; petitioners alleging that the contract is in violation of paragraph 1, § 7, art. 7, of the constitution, (Code, § 5191,) in that it creates an indebtedness of the county without the consent of two-thirds of the qualified voters. The petition shows that, on September 5, 1893, the defendants made their assessment for the levy and collection of taxes for the year, by which it appears that the amount to be collected for public buildings is $4,295.92; that the amount in the county treasury, levied and collected for public buildings in former years, is $604.44; that the amount unappropriated now in the treasury is only $5,000, and that the contract in question provides for the construction of the courthouse at the price of $19,000, to be paid by installments as the work progresses, except 25 per cent., which is payable 30 days after the completion of the building,--the same to be completed by October 1, 1894; that no election has been held authorizing any indebtedness to be contracted on behalf of the county; and that the value of the whole taxable property of the county is $2,020,315. The commissioners demurred generally, and answered, admitting the making of the contract but denying that it was illegal, and prayed that, in the event the court decided it to be illegal, they be allowed to modify it. Upon the hearing, the court enjoined the defendants from proceeding under the contract complained of, but at the same time ordered that "if the parties to this contract can so modify it that, with the means on hand, the cost of the building can, as it falls due, be met annually hereafter by a levy of one-fifty of one per cent. On the assessed value of the taxable property of said county, and the liability to be incurred can be so arranged as not to exceed one-fifth of one per cent. annually on the assessed value of the taxable property of the county of Macon, then and in that event the defendants may proceed to have a courthouse erected under the terms of such modified contract, and this injunction shall not apply thereto." To this order the petitioners excepted, and claimed that any contract made under it would be as obnoxious to the constitution as was the original contract.

We fully concur in this view. The constitutional provision referred to forbids any county to incur a debt without first submitting the matter to a...