Shinall v. City of Cartersville

• Decision Date: 09 November 1915
• Docket Number: 42.
• Citation: 87 S.E. 290,144 Ga. 219
• Parties: SHINALL v. CITY OF CARTERSVILLE ET AL.
• Court: Georgia Supreme Court

87 S.E. 290

144 Ga. 219

SHINALL v. CITY OF CARTERSVILLE ET AL.

No. 42.

Supreme Court of Georgia

November 9, 1915

Syllabus by the Court.

The Constitution of Georgia does not authorize a municipality to incur a bonded indebtedness, without the assent of two-thirds of the qualified voters thereof, at an election for that purpose, to be held as prescribed by law. Civil Code 1910, § 440, prescribes that when a municipality desires to incur a bonded debt a certain procedure shall be followed, as to the giving of notice of the election, etc. This statutory provision requires that the desirability of incurring the bonded debt shall be determined by proper municipal action which may be accomplished by ordinance or resolution. Under the act of 1911 (Acts 1911, p. 919), providing for a commission form of government for the city of Cartersville "no ordinance or resolution of any kind, or for any purpose, shall become valid and effective until seventeen days after the same shall have been entered, and signed by the mayor, or by two of the other commissioners, in open meeting; and the minutes shall show that it was so signed and approved, together with the date of such signature." A resolution or ordinance providing for an election to authorize the incurring of a bonded debt, passed by the commissioners of Cartersville, does not become valid and effective until after the lapse of 17 days from its signature by the mayor or two other commissioners. The existence of a complete and valid resolution or ordinance is a prerequisite to the calling of an election to incur a bonded debt by the officers of a municipal corporation. Hence, where the commissioners of the city of Cartersville, upon the passage of a resolution calling for an election to sanction the issuance of bonds to raise money for contemplated municipal improvements, and before the expiration of the 17 days as provided in the charter, published a notice for the holding of the election, the opening of books for the registration of voters, etc., such action was not authorized by a valid ordinance or resolution, and the election held under such circumstances, within less than 30 days from the time the resolution or ordinance became effective, was void.

Other objections raised by intervener to the validation of the bonds are dependent on and determined by the foregoing rulings.

Error from Superior Court, Bartow County; A. W. Fite, Judge.

Petition by the State for the validation of bonds authorized by the City of Cartersville. J. A. Shinall, a taxpayer, filed an intervention. Intervention stricken on demurrer, judgment of validation entered, and Shinall brings error. Reversed.

Dean & Dean and L. H. Covington, all of Rome, for plaintiff in error.

J. H Wikle and Finley & Henson, all of Cartersville, and J. M. Lang, Sol. Gen., of Calhoun, for defendant in error.

EVANS P.J.

The solicitor general of the Cherokee circuit, in behalf of the state of Georgia, filed a petition for the validation of a series of bonds, alleged to have been authorized by the city of Cartersville by virtue of an election held for that purpose. J. A. Shinall, a taxpayer of the municipality, filed an intervention, objecting to the validation of the bonds. His intervention was stricken on demurrer, and a judgment of validation entered.

1. The first objection of the intervener is that the election was void because it was held by virtue of a resolution of the commissioners of the city of Cartersville, passed July 12, 1915; and that the notice of publication of the election, the opening of the books of registration, and other steps taken towards the election, pursuant to the resolution, were illegal, for the reason that nothing could be done thereunder until 17 days had elapsed after the entry and signing of the resolution. He grounds his contention upon the sixteenth section of the charter of the city of Cartersville (Acts 1911, p. 928), which declares that no ordinance or resolution shall become valid or effective until 17 days after the same has been entered and signed by the mayor or two of the commissioners in open meeting.

The power to issue municipal securities is derived from the Constitution and the statutes enacted to carry into effect the constitutional provision. The Constitution declares that no county, municipality, or division shall incur any new debt (except for a limited, temporary loan to supply casual deficiencies in revenue), without the assent of two-thirds of the qualified voters thereof at an election for that purpose, to be held as may be provided by law. Civil Code 1910, § 6563. To carry into effect this constitutional provision it has been enacted that:

"When any county, municipality, or division shall desire to incur any bonded debt, as prescribed in paragraphs 1 and 2, section 7, article 7, of the Constitution of 1877, the election required shall be called and held as follows, to wit: The officers charged with levying taxes, contracting debts, etc., for the county, municipality, or division shall give notice,

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