McDowell v. Judges Ex Officio

• Citation: 235 Ga. 364,219 S.E.2d 713
• Decision Date: 16 October 1975
• Docket Number: No. 30394,30394
• Parties: Henry W. McDOWELL v. JUDGES EX OFFICIO et al.
• Court: Supreme Court of Georgia

Page 713

219 S.E.2d 713

235 Ga. 364

Henry W. McDOWELL v. JUDGES EX OFFICIO et al.

No. 30394.

Supreme Court of Georgia.

Oct. 16, 1975.

Falligant, Karsman, Kent & Toporek, Stanley Karsman, Savannah, for appellant.

Anton F. Solms, Jr., L. W. Childs, Jr., Asst. County Atty., Savannah, for appellees.

INGRAM, Justice.

The appellant filed an equitable complaint in the Superior Court of Chatham County seeking injunctive relief against the appellees to prevent them from commencing construction of a new courthouse complex in Chatham County. The appellees filed a motion to dismiss the complaint and an answer. The three judges of the Superior Court of Chatham County disqualified themselves from hearing the case and the Honorable W. Colbert Hawkins, of the Ogeechee Circuit, presided in the case. After a hearing, the appellees' motion to dismiss was granted and the issue on appeal is whether the complaint states a claim upon which relief can be granted.

Appellant summarizes the allegations of his complaint as follows:

'On March 26, 1974 a referendum was submitted to the voters of Chatham County, Georgia to determine whether the electorate would approve a multi-million dollar bond issue to finance a courthouse complex. That referendum was defeated. At the time of the referendum appellant's complaint alleged that appellees had on hand approximately $6 million in Federal Revenue Sharing Funds. Appellant further alleged that in spite of the adverse results of the referendum the appellees proceeded with plans to develop the courthouse complex and as a result of their failure to use Federal funds appellant and all other citizens similarly situated have been required to pay escalating property taxes and other charges. Furthermore petitioner alleged in his complaint that the appellees did not have sufficient borrowing power or the legal authority to borrow sufficient funds to complete the project without the use of anticipated revenue funds which are not guaranteed by the federal government. Lastly, appellant alleged that the present Chatham County digest total of approximately $650 million and that upon information and belief appellant alleged that should the county borrow funds to complete the complex the county would be violating Georgia law by borrowing money in excess of that authorized by the Constitution of Georgia of 1945, Section 2.6003, paragraph 3.'

Appellant's primary argument on appeal is that the issues raised in the complaint cannot be resolved by the motion to dismiss and can only be determined through a trial of the issues. The appellees argue that the complaint fails to name a proper party defendant; that the commissioners of Chatham County have a duty to erect and maintain county buildings with broad discretion in the exercise of this duty; that appellant's complaint is prematurely brought; and, that federal revenue sharing funds...