Smith v. Hodgson

• Decision Date: 14 November 1907
• Citation: 59 S.E. 272,129 Ga. 494
• Parties: SMITH, County Treasurer. v. HODGSON et al., Road Com'rs.
• Court: Georgia Supreme Court

59 S.E. 272

129 Ga. 494

SMITH, County Treasurer.

v.HODGSON et al., Road Com'rs.

Supreme Court of Georgia.

Nov. 14, 1907.

1. Mandamus—When Writ Denied.

The writ of mandamus may be refused by the court, in the exercise of a sound discretion, where the granting of the writ would in effect decide questions of importance between persons not parties to the proceeding, upon whom its enforcement would entail hardships and difficulties.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 33, Mandamus, §§ 5, 47-49.]

2. Same.

A mandamus should not issue when this remedy would be ineffectual to change the status of the parties, or afford any material advantage to the applicant, respecting the thing demanded.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 33, Mandamus, §§ 47-49.]

(Syllabus by the Court.)

Error from Superior Court, Clarke County; Chas. H. Brand, Judge.

Action by E. I. Smith, county treasurer, for writ of mandamus to J. M. Hodgson and others, commissioners of roads and revenues. From an order denying the writ, relator brings error. Affirmed.

J. J. Strickland, for plaintiff in error.

Er-win & Erwin, for defendants in error.

EVANS, P. J. The treasurer of Clarke county applied for the writ of mandamus to compel the board of commissioners of roads and revenues of that county to deliver to him $71,000, which was to their credit in the Georgia National Bank, or to deliver to him an order on the bank for the money. The ease was tried by the judge on the pleadings, the material parts of which are as follows: In 1904, the commissioners of roads and revenues of Clarke county, by proper authority, issued $100,000 of bonds, for the purpose of permanently improving the roads of the county. The rate of interest was 4 per cent. per annum, payable semiannually. The bonds were dated July 1, 1904, and issued in denominations of $500 each, and matured as follows: $1,500 annually for the first 10 years; $4,000 annually for the next 15 years; and $5,000 annually for the next 5 years. The commissioners, after advertising for bids, were not able to sell the bonds at par. They then entered into a contract of sale with the Georgia National Bank, whereby the bank agreed to take the entire issue at a premium of $2,500, upon terms that the proceeds of the sale were to be left on deposit with the bank, to be paid on demand as needed in the improvement of the roads of the county. Pursuant to this contract, the commissioners delivered to the bank the bonds, and the bank, through its president, signed the following certificate, which is duly entered on the commissioners' records: "1904, July 1st. Sale Road Bonds, $102,500. 00. The above amount was placed to the credit of the commissioners of Clarke county as per agreement of Georgia National Bank and commissioners at regular meeting of the board, May 2, 1904. To be paid as agreed upon on terms of sale. [Signed] Ga. Nat Bank of Athens, by J. J. Wilkins, President." The contract of sale has been in force for more than 2 1/2 years, during which time the bank has paid over to the county authorities $31,000, which sum has been properly disbursed in the purchase of road machinery and in improving the roads. The commissioners have disbursed this sum through the treasurer of the county, and expect to continue so to do, but at the time the petition for mandamus was filed none of the proceeds of the bond sale were available under the contract. It was admitted that at the time of the contract of sale with the bank one of the commissioners was a director of the bank, but the good faith and fairness of the contracting parties are not impugned. The court refused to make the mandamus absolute, except that the respondents were ordered to deliver to the treasurer the evidence of indebtedness they hold against the Georgia National Bank, under the contract made by them with the bank, and that applicant hold and collect same, and enforce the said contract according to its terms. In a written opinion the judge assigned as reasons for his refusal of the writ: That, as the bank is not a party, the validity of the bond sale cannot be inquired into, and the contract of sale must be treated, in passing on...