Mitchell County v. Cochran

• Decision Date: 28 September 1926
• Docket Number: 5031.
• Citation: 134 S.E. 768,162 Ga. 810
• Parties: MITCHELL COUNTY et al. v. COCHRAN et al.
• Court: Georgia Supreme Court

134 S.E. 768

162 Ga. 810

MITCHELL COUNTY et al. v. COCHRAN et al.

No. 5031.

Supreme Court of Georgia

September 28, 1926

Syllabus by the Court.

The county authorities were not authorized to expend the proceeds of the sale of bonds issued by the county of Mitchell for the purpose of raising money with which to pave and grade the public roads in that county, and for the pavement or grading or improvement of streets in the municipality of Pelham, and the court did not err in granting an injunction to restrain them from so doing.

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

Suit by G. M. Cochran and others against Mitchell County and others. Judgment for plaintiffs, and defendants bring error. Affirmed.

J. J Hill, of Pelham, and E. M. Davis, of Camilla, for plaintiffs in error.

Pope & Bennett, of Albany, for defendants in error.

PER CURIAM.

The controlling question in this case is whether or not the county authorities can expend money arising from the sale of bonds like those involved in this case, the proceeds of the sale of which were to be used "for the paving and grading of new and old roads in Mitchell county," for the paving of certain streets in the city of Pelham. The streets in controversy were not a part of state-aid roads but the plaintiffs in error submitted evidence to show they were parts of the public roads or the public road system in Mitchell county. The showing upon this question was such that if the county authorities can expend upon the streets of a city the money derived from the source from which these funds arise, it can only be concluded that there was no abuse of discretion upon the part of the county authorities in deciding to pave the streets in question. And if the streets of Pelham, the paving of which was in contemplation, were state-aid roads or a part of state-aid roads, it would seem that there could be no question as to the right of the county to improve the same and expend the county funds in that improvement, under the decision in Lee County v Smithville, 154 Ga. 550, 115 S.E. 107. Counsel for the plaintiffs in error cite the case last referred to as sustaining their position, and quote from it the following:

"The evident purpose of the Legislature was to build paved highways on which the public could travel from county seat to county seat, through county seats to reach other county seats and on to the confines of the state. The contrary construction would require the state to build these highways to the limits of a town, which may not pave its streets, then skip to the other side, and begin the work again, leaving unpaved and impassible gaps within the town limits. The contrary interpretation would leave the state without connecting public roads. Continuous highways would be composed of these state roads and municipal streets, the former under state control, and the latter under town management. If the towns and cities can prohibit the state from locating and building public highways within their limits, we see no reason why they could not refuse to permit the state to connect its roads with the streets within their limits; but one would hardly go so far. The truth, is that the streets of the towns and cities belong to the state as do the county public roads."

We do not think, however, that the ruling made in that case is applicable to the precise question which we have before us. The roads in question before the court when that case was decided were state-aid roads, for in another portion of the decision it was said:

"But the Legislature can adopt a state system. The state, through its Legislature, has as much power and control over the laying out, construction, maintenance, and closing of the highways, streets, lanes and alleys of municipal corporations as it has over other public highways. It may change, alter, or abolish either class of these highways at will. The power to have opened, worked, repaired, improved, or closed the public highways, streets, and roads may be exercised by the Legislature in such manner and way, and under such circumstances, as it may deem best. There is no constitutional or other limitation on this power in this particular matter. City of Atlanta v. Gate City Gaslight Co., 71 Ga. 107; Hayden v. Atlanta, 70 Ga. 817. *** It can delegate its exercise to a municipality within its limits. It can withdraw this power at will from the municipality, in whole or in part. In the exercise of this undoubted power, the state has adopted a system of locating and building what are denominated 'state-aid roads'; and this system is provided for in the above act [Ga. L. 1919, p. 242], by which the state highway department was reorganized. In the caption of the act it is declared that it is an act to create a system of state-aid roads and to provide for the designation, maintenance, and improvement of the same; to create and provide for a state-aid road fund, and for the control and management thereof; to provide for the paving of said state-aid roads of the state, or in co-operation with the counties, or with the United States government, etc. The first section of article 4 of this act declares 'that there is hereby created a system of state-aid roads in this state for the purpose of interconnecting the several

county seats of the state, which shall be designated, constructed, improved, and maintained by the state under the state highway department, and the provisions of law."'

But in the same decision it was said, after pointing out that prior to the act of 1919, supra, by which the highway commission was reorganized, there were two ways of laying out and building public highways in this state:

"Under these systems, ordinarily county public roads and municipal streets are not treated as the same; and when provision is made for one, it is not usually construed as including the other. Board of Commissioners v. Americus, 141 Ga. 542 ."

Counties of this state have no right to levy a tax for any purpose except those which are mentioned in that part of the Constitution which forbids the General Assembly to delegate to any county the right to levy a tax for any purpose except those enumerated. The purposes for which a county may be given the right to levy a tax are as follows:

"To build and repair the public buildings and bridges; to maintain and support prisoners; to pay jurors and coroners, and for litigation, quarantine, roads, and expenses of courts; to support paupers and pay debts heretofore existing; to pay the county police, and

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