Moore v. Baldwin County

• Court: Georgia Supreme Court
• Writing for the Court: CANDLER
• Citation: Moore v. Baldwin County, 209 Ga. 541, 74 S.E.2d 449 (Ga. 1953)
• Decision Date: 09 February 1953
• Docket Number: No. 18099,18099
• Parties: MOORE et al. v. BALDWIN COUNTY et al.

Page 449

74 S.E.2d 449

209 Ga. 541

MOORE et al. v. BALDWIN COUNTY et al.

No. 18099.

Supreme Court of Georgia.

Feb. 9, 1953.

Rehearing Denied Feb. 25, 1953.

Syllabus by the Court.

1. The legislature by its act of 1946, which created the State Board of Corrections, did not, expressly or by implication, divest the legal right of a county to make requisition upon the State for its quota of convicts to be employed upon the public roads of the county and to be used for other authorized county purposes, nor the corresponding power and duty of the county to make, at its expense, proper provision for the support, care, and safekeeping of such convicts, including necessary camp or housing facilities. Hence county commissioners presently have authority to expend county funds in the construction and maintenance of a public works camp for county purposes.

2. As to the location selected by the county commissioners for the proposed public works or convict camp, which is shown to be on an undisclosed part of a 75-acre county-owned tract north of and near the City of Milledgeville, the allegations in count 2 of the petition were insufficient to show an abuse of discretion. In the administration of county affairs, county commissioners are vested by law with a broad discretion, and the reviewing power of a judge of the superior court shold be exercised with caution, and no interference had unless it is clear and manifest that the county commissioners are abusing the discretion vested in them by law. There is hardly a proposition of any moment to be settled by county authorities but that they are called upon to act on data from which diverse conclusions may be reached. Not infrequently the citizens of the county differ as to the course to be pursued. It is impossible in our complex civilization to prescribe the exact manner in which every official act must be performed. Hence the manner of doing the act within the power of the governing officials of a county must be largely left to their discretion and that discretion must be, from the nature of the case, a broad one. Consequently, count 2 of the petition failed to state a cause of action for injunctive relief and the court properly sustained a general demurrer to that count. Chipstead v. Oliver, 137 Ga. 483(2), 73 S.E. 576; Dunn v. Beck, 144 Ga. 148, 86 S.E. 385.

3. Count 3 of the petition, whereby the plaintiffs sought to enjoin the erection of a public works or convict camp on the ground that it would be, when constructed, near a subdivision in which they reside, and therefore a nuisance, does not state a cause of action for the relief prayed. In no legal sense is a public works or convict camp a nuisance, though located near a residential section. It might become so by the manner in which it is kept. Nothing that is legal in its erection can be a nuisance per se. Much less can that which public necessity demands, such as a public works or convict camp, be so. Nor will the courts indulge in the conjecture that the manner in which a public works or convict camp will be conducted will prove a nuisance, and upon such imaginary fear or uncertain apprehension or speculation of contingent injuries, stop the erection of such a public necessity, lawful in character. Accordingly, count 3 was subject to general demurrer. Bacon v. Walker, 77 Ga. 336; Long v. City of Elberton, 109 Ga. 28, 34 S.E. 333, 46 L.R.A. 428; Simpson v. Du Pont Powder Co., 143 Ga. 465, 85 S.E. 344, L.R.A.1915E. 430; Elder v. City of Winder, 201 Ga. 511, 512, 40 S.E.2d 657.

Hall & Bloch, Bloch, Hall, Groover & Hawkins, Macon, Stephen T. Bivins, Milledgeville, for plaintiff in error.

Eugene Cook, Atty. Gen., M. H. Blackshear, Jr., Deputy Asst. Atty. Gen., Chas. H. Bruce, Asst. Atty. Gen., for parties at interest, not parties of record.

Marion Ennis, Eva L. Sloan, Milledgeville, for defendant in error.

CANDLER, Justice.

Frank D. Moore and others, alleging themselves to be residents, citizens, and taxpayers of Baldwin County, brought an action for injunction against Baldwin County, its Commissioners of Roads and Revenues, and the Clerk of the Commissioners. The petition was in three counts. The defendants filed demurrers, general and special, to the petition as a whole and to each count. The court sustained the defendants' general demurrers to the petition as a whole and to each count thereof, as they had been amended, and dismissed the petition. The plaintiffs excepted. Query: 1. Under the statutory law of Georgia as it now stands, and under the Constitution of 1945, does a county of the State of Georgia have a legal right to expend county funds for the erection of a public works or convict camp? 2. If a county has such right, are the allegations of count 2 of the petition sufficient to authorize a jury to find that the County Commissioners of Baldwin County abused their discretion in proposing to erect and maintain a public works or convict camp at the place described in the petition? And 3. Even if the County Commissioners of Baldwin County have the legal right to expend county funds for the erection of a public works or convict camp, and even if they have not abused their discretion in building and locating a camp at the place described in the petition, would not a jury be authorized to find, upon proof of the allegations of count 3 of the petition, that the erection and maintenance of a public works or convict camp at the place selected by the Commissioners would be a nuisance? We shall consider and dispose of these questions in the order of their statement.

1. Our penal system evolves from many statutes. It would be burdensome and, as we perceive, an unnecessary task to presently recount their many provisions. However, as they relate to the question here involved, it may be safely asserted that, prior to the Constitution of 1945, and prior to the creation of the State Board of Corrections in 1946, each county of this State was clothed with ample authority to use its misdemeanor convicts and those assigned to it, in the construction of its public roads and for other authorized county purposes. Incident to this right, was the power and the duty of the county to make, at its expense, proper provision for their support, care, and safekeeping, including, of course, necessary convict camps or housing facilities. Beginning with little, but with an ever-increasing concern, the State has at all times by statutory authority exercised some control and supervision over the keep, care and welfare of county-employed convicts. See, in this connection, Titles 77 and 95 of the Code of 1933; Pennington v. Gammon, 67 Ga. 456; Garrison v. Perkins, 137 Ga. 744, 74 S.E. 541; Wright v. Southern Ry. Co., 146 Ga. 581(2), 91 S.E. 681; Williams v. Sumter County, 21 Ga.App. 716, 94 S.E. 913; and Oliver v. Hall County Memorial Hospital, 62 Ga.App. 95(1), 8 S.E.2d 138. The Constitution of 1945, by article 5, section 5, paragraph 1, in part, provides: 'There shall be a State Board of Corrections composed of five members in charge of the State penal system. The Board shall have such jurisdiction, powers, duties and control of the state penal system and the inmates thereof as shall be provided by law.' Code Ann. § 2-3401. Pursuantly, the General Assembly created a State Board of Corrections by an act approved February, 1, 1946, Ga.L. 1946, p. 46. Section 6 of that act, in part, provides: 'The State Board of Corrections shall adopt rules governing the assignment, housing, working, feeding, clothing, treatment, discipline, rehabilitation, training and hospitalization of all prisoners coming under its custody. The Board may also adopt rules and regulations...