Roberts v. Dancer

• Decision Date: 03 August 1917
• Docket Number: 8170.
• Citation: 93 S.E. 297,20 Ga.App. 752
• Parties: ROBERTS v. DANCER, ORDINARY.
• Court: Georgia Court of Appeals

93 S.E. 297

20 Ga.App. 752

ROBERTS v. DANCER, ORDINARY.

No. 8170.

Court of Appeals of Georgia, Second Division

August 3, 1917

Syllabus by the Court.

Under the act of the General Assembly (Acts 1905, p. 569) creating a board of commissioners for the county of Miller, which provides that three members of the board "must concur in order to pass any order," where four members are present when a resolution is put, and two members vote for and one against it, and the other commissioner, the chairman thereupon declares that it is carried, this declaration is equivalent to a formal casting of his vote in favor of its adoption.

Error from Superior Court, Miller County; W. C. Worrill, Judge.

Proceeding between B. B. Roberts and W. C. Dancer, Ordinary. There was a judgment for the latter, and the former brings error. Affirmed.

W. I Geer, of Colquitt, for plaintiff in error.

Billie B. Bush, of Colquitt, for defendant in error.

JENKINS J.

When this case was before the Supreme Court a new trial was granted (Roberts v. Dancer, Ordinary, for Use etc., 144 Ga. 341, 87 S.E. 287), and the only question to be thereafter settled was the issue of fact raised by the affidavit of illegality, as to whether or not three commissioners concurred in the passage of the resolution directing the issuance of the execution against the defendants in fi. fa. The act creating the board of commissioners of roads and revenues of Miller county (Acts 1905, p. 569) provides that:

"Three of said board shall constitute a quorum for the transaction of business, and * * * three must concur in order to pass any order or let any contract or grant or allow any claim against the county."

The minutes of the board of commissioners, for the meeting held December 31, 1910, show the following:

"The board of commissioners of Miller county met in called meeting for the purpose of acting upon the shortage of the county treasurer, and in accordance with the rule absolute passed by the Honorable Wm. C. Worrill, judge of the superior court of Miller county, Georgia, at the October term, 1910. Present: W. C. Dancer, Chairman; G. W. Cook, F. E. Fudge, and W. J. Grimes. After a full and complete discussion of the matter, the following resolution was introduced by G. W. Cook, and on second of W. J. Grimes was adopted; F. E. Fudge voting in the negative: 'Whereas,' " etc.

The minutes state that the resolution was adopted. There is nothing therein that can be taken to show that only two of the commissioners voted for it. The act creating the board does not require that the vote be taken by ballot, by ayes and nays, or that the vote be recorded. Therefore the order is presumed to have been legally passed, and the burden would be upon one attacking its validity to show the contrary. 2 Dillon on Municipal Corporations, § 579. Under the plain provisions of the act referred to, the ordinary, Dancer, was made a member of and chairman of the board of commissioners. The evidence had on the trial may be fairly taken to show indisputably that two of the commissioners voted for the resolution and one against it, and that the other commissioner, the chairman, without specifically and in terms voting for it, thereupon declared it carried. It is true that the chairman testified as follows:

"G. W. Cook and W. J. Grimes voted for it, and I think I said, 'Aye.' I know it was my intention to vote for it, but I don't know that I expressed myself as voting for it. When the resolution was introduced by G. W. Cook and seconded by W. J. Grimes, G. W. Cook and W. J. Grimes voted for it, and F. E. Fudge voted against it. After they cast their votes, I stated

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