Lippitt v. City of Albany

• Decision Date: 01 December 1908
• Parties: LIPPITT et al. v. CITY OF ALBANY et al.
• Court: Georgia Supreme Court

63 S.E. 33

131 Ga. 629

LIPPITT et al. v. CITY OF ALBANY et al.

Supreme Court of Georgia

December 1, 1908

Syllabus by the Court.

Properly construed, the purpose of the act of 1897 (Acts 1897, p. 82) was to provide a method by which it should be judicially investigated and determined whether the law, constitutional and statutory, has been complied with, so as to declare the bonds referred to therein valid before their issuance. It was therefore not violative of article 7, § 7, par. 1, of the Constitution (Civ. Code 1895, § 5893), on the ground that it sought to confer power on counties, municipalities, and divisions to incur debts without the consent of two-thirds of the voters thereof, by attempting to authorize a confirmation and issuance of bonds which may not have been authorized by the necessary two-thirds vote.

[Ed Note.-For other cases, see Municipal Corporations, Dec. Dig § 907. ^[*] ]

The act referred to in the preceding headnote is not unconstitutional on the ground that it makes no provision for a trial by jury in reference to the matters for the investigation of which provision is therein made.

[Ed Note.-For other cases, see Jury, Dec. Dig. § 19 ^[*]]

That act is not unconstitutional on the ground that it seeks to deprive the citizens of a municipality of their property without due process of law, by excluding future investigation in reference to the validity of the bonds after judgment of confirmation and validation.

[Ed. Note.-For other cases, see Constitutional Law, Dec. Dig. § 309. ^[*]]

Whether or not the eighth section of the act of 1897 (Acts 1897, p. 85) contains a different subject-matter from that included in the general body of the act, and beyond the purview of the caption thereof, the act as a whole is not unconstitutional on that ground. If the eighth section should be held invalid, it is not so essential a part of the general purpose of the act that its elimination would destroy the legislative scheme and invalidate the act in its entirety.

[Ed. Note.-For other cases, see Statutes, Cent. Dig. § 195; Dec. Dig. § 64. ^[*] ]

The pleadings in the proceeding to validate the bonds were not lacking in any such essential jurisdictional allegations under the act as to render the entire proceeding void. If there were any lack of explicitness of statement in reference to certain matters, such as the manner of holding the election and submitting the issue to the voters, on objection in the nature of special demurrer, this should have been urged in the same proceeding before the judgment of validation, and not raised for the first time by an equitable petition seeking to enjoin the issue of the bonds.

[Ed. Note.-For other cases, see Municipal Corporations, Dec. Dig. § 917. ^[*] ]

(a) Where a municipal corporation desired to issue bonds, and, after an election held for the purpose of determining whether it should be done, a regular proceeding to investigate their validity was had in accordance with the act of 1897 (Acts 1897, p. 82), and judgment of validation and confirmation was duly rendered, after service and notice as by that act provided, the judgment so rendered was conclusive upon the municipality and its citizens that the bonds were valid, and they could not thereafter be declared invalid and their issuance enjoined on the ground of insufficiency in the provisions of the ordinance passed in reference to holding the election, or that the issue was not submitted to the voters with proper definiteness, or like reasons.

(b) No question is here raised as to any lack of provision having been made, before the issuance of the bonds, for their payment, and therefore the ruling above made does not deal with that subject.

[Ed. Note.-For other cases, see Municipal Corporations, Dec. Dig. § 917. ^[*] ]

There was no error in refusing to grant the interlocutory injunction prayed.

Error from Superior Court, Dougherty County; W. N. Spence, Judge.

Equitable petition by A. J. Lippitt and others against the City of Albany and others. Judgment for defendants, and plaintiffs bring error. Affirmed.

Pope & Bennet, for plaintiffs in error.

Jas. Tift Mann, for defendants in error.

ATKINSON J.

Lippitt filed his equitable petition against the city of Albany and its mayor and council, seeking to enjoin them from issuing certain bonds, as to which an election had been held and which had been validated under the act of 1897 (Acts 1897, p. 82), or taking any steps for that purpose. On the hearing of the application for interlocutory injunction it was refused, and the plaintiff excepted. The grounds on which the injunction was sought may be divided into two classes: (1) Those which attacked the constitutionality of the act of 1897, providing for the validation of bonds of counties, municipalities, or divisions (Acts 1897, p. 82); (2) those which attacked the proceedings under which bonds were validated, either for alleged insufficiency in the pleadings or proceedings themselves, or on account of antecedent irregularities in regard to the mode of submission of the issue to the voters, and the like. The attacks made upon the act of 1897 are numerous and vigorous, but, we think, are not sufficient, either jointly or severally, to demonstrate the unconstitutionality of that act.

1. Some of the grounds assert unconstitutionality in the act referred to, on the contention that it seeks to confer power on counties and municipalities to incur debts without the consent of two-thirds of the voters thereof, by attempting to confirm and authorize an issue of bonds which may not have been authorized by the necessary two-thirds vote; and that the act seeks to rise superior to the Constitution and preclude inquiry into the validity of the bonds on such a constitutional ground, thus violating article 7, § 7, par. 1, of the Constitution of the state of Georgia (Civ. Code 1895, § 5893). This contention is based on a misconception of the purpose of the act of 1897. It was not the purpose to validate invalid or irregular bonds. An intent to violate the Constitution will not be attributed to the Legislature, unless it is plain. The act of 1897 was not passed for the purpose of authorizing a court to empower a municipality or county to issue illegal bonds. On the contrary, its object was to provide a method by which it could be judicially investigated and determined whether the law, constitutional and statutory, has been complied with as to elections thereafter held, and whether in law and in fact the bonds were valid, and to pass proper judgment upon that subject, after full consideration, before the bonds were floated or sold, and passed into the hands of innocent purchasers. It was not intended that any judge should validate bonds as a mere matter of course, or without due and proper investigation and consideration for the purpose of ascertaining whether the law had been complied with. It is his duty so to investigate; and no judge should validate an issue of bonds, and declare by his judgment of validation that the requirements of the law have been met, without first ascertaining that such is the fact. The act contemplates a real investigation and determination, not a mere pro forma declaration. Such being the purpose of the act, it does not violate the Constitution for the reason assigned. We must presume that in this validating proceeding the presiding judge properly performed the duties imposed upon him.

2. It is contended that the act is unconstitutional because it makes no provision for a trial by jury, and therefore that it violates article 6, § 18, par. 1, of the Constitution of Georgia (Civ. Code 1895, § 5876). The Constitution declares that "the right of trial by jury, except where it is otherwise provided in this Constitution, shall remain inviolate." But the preservation of the right "inviolate" did not operate to confer a right of trial by jury in all proceedings, of whatsoever character where no such right had ever existed. The case of De Lamar v. Dollar, 128 Ga. 57, 57 S.E. 85, is relied on in support of the contention here made; but a careful reading of the opinion will show that it does not have that effect. Presiding Justice Cobb, who delivered the opinion, was careful to guard it against such misapplication. Thus he said (page 61 of 128 Ga., page 87 of 57 S.E. ): "The expression 'common-law cases,' or similar language, which has been heretofore used, or may be used in the further progress of this opinion, is intended to embrace only cases which were the subject of real, personal, or mixed actions, according to the practice of the English common-law courts, and not those proceedings which were not known to the common law, and are only authorized under our statutes, such as possessory warrants and the like." And again he said (page 66 of 128 Ga., page 89 of 57 S.E. ): "It must be kept in mind that the foregoing discussion is limited in its application to common-law cases of a civil nature. It is now settled by more than one decision, concurred in by six justices, that it is within the power of the General Assembly to deprive a party of the right of trial by jury in equity cases. Whether there shall be such trial, in cases of this character, is within the discretion of the General Assembly." See, also, Bemis v. Armour Packing Company, 105 Ga. 293, 31 S.E. 173; Austin v. Southern Home Ass'n, 122 Ga. 448, 50 S.E. 382. In a proceeding to validate bonds, no judgment for money or land is entered against the present complainants or any other citizen or taxpayer. No direct judgment for immediate recovery of money is even entered against the municipality. The proceeding is not one of the class, either in terms or by analogy, in which jury trials have ever existed as matter of right; and it does not fall within...