Smith v. Mayor

• Decision Date: 19 July 1901
• Citation: 39 S.E. 327,113 Ga. 833
• Parties: SMITH et al. v. MAYOR, ETC., OF CITY OF DUBLIN et al.
• Court: Georgia Supreme Court

39 S.E. 327

113 Ga. 833

SMITH et al.

v.MAYOR, ETC., OF CITY OF DUBLIN et al.

Supreme Court of Georgia.

July 19, 1901.

MUNICIPAL BONDS—ELECTION—SUFFICIENCY OF NOTICE—EVIDENCE.

1. Notice given by the municipal authorities that an election will be held in a named city on the question of issuing bonds by that city, and which contains no information as to the amount of the bonds sought to be issued, or of the purpose for which the proceeds thereof are to be used, save as expressed in the following language: "Said bonds to be known as 'School and City Improvement Bonds, ' and to be issued to the aggregate amount of $25,000, in denominations of from $1,000 to $5,000 each, as purchasers may desire, and not more than $20,000 of the amount realized therefrom to be used for the purpose of building and erecting a school house, and not more than $5,000 for the purpose of enlarging and improving the light and water plant of said city, and the surplus, if any, to be used by the mayor and council in such other manner as they may see fit, " —does not meet the legal requirement that a notice of this character shall "specify what amount of bonds are to be issued, [and] for what purpose."

2. Before a judgment validating bonds sought to be issued by a municipal corporation can lawfully be rendered, sufficient facts affirmatively showing that such issue was sanctioned by two-thirds of the qualified voters of such municipality must appear.

(Syllabus by the Court.)

Error from superior court, Laurens county; John C. Hart, Judge.

Action by the state against the city of Dublin and others. C. C. Smith and others intervened. From a judgment sustaining theissue of certain bonds by the city of Dublin, interveners bring error. Reversed.

Akerman & Akerman, for plaintiffs in error.

S. B. Baker, H. G. Lewis, Sol. Gen., and Jas. K. Hines, for defendants in error.

LITTLE, J. 1. There are two points made in the record of this case: The plaintiffs in error contend that the court erred in entering a judgment validating and confirming the bonds proposed to be issued, because the notice calling the election did not specify for what purpose the bonds were to be issued, and that it does not state with sufficient definiteness when they are to be paid, or when the principal and interest is to be paid; and because the notice leaves to the discretion of the mayor and council the amount to be expended for the purpose of erecting and building a school house, and the amount to be used in enlarging and improving the light and water plant. Section 377 of the Political Code, which is copied from an act of the general assembly of 1878 to carry into effect the constitutional provision forbidding the creation of a debt by a municipal corporation without the assent of two-thirds of the qualified voters, declares that the officers of the municipality shall give notice of such election by the publication of a notice in a newspaper for a given time, notifying the qualified voters that on a day named the election will be held. It further provides that "in said notice he [the officer] shall specify what amount of bonds are to be issued, for what purpose, " etc. It has been more than once ruled by this court that, in order to render the issue legal, this requirement as to notice must be strictly complied with. See Bowen v. Mayor, etc., of Greensboro, 79 Ga. 715, 4 S. E. 159; Mayor, etc., of City of Athens v. Hemerick, 89 Ga. 674, 16 S. E. 72; Ponder v. City of Forsyth, 96 Ga. 572, 23 S. E. 498. An examination of the notice now being considered discloses that the bonds proposed to be issued aggregated in amount the sum of $25,000, which is a literal compliance with the statute. In notifying the voters of the purpose for which the bonds were to be issued, it is stated in the notice that of this sum of $25,000 not more than $20,000 of the amount realized therefrom shall be used for the purpose of building and erecting a school house, and not more than $5,000 for the purpose of enlarging and improving the light and water plant of the city. To say the least the notice is very indefinite as to what amounts would be used for these two purposes. When the people are told that not more than $20,000 should be used for the erection of a school house, they could from the notice itself form no reasonable idea how much would in fact be so used. True, by the notice a greater sum than $20,000 was not to be used for that purpose, but if $1,000 of the sum was so applied, the requirements of this notice would have been met. The same may be said with reference to the amount to be used in enlarging and improving the light and water plant. The notice in this respect in neither case informed the voters how much of the sum, if voted, would be used for either purpose. If $500 had been used in enlarging the light and water plant, and $1,000 in building the school house, it would seem that the terms of the notice would have been complied with; but then there would remain $23,500 of the bonds whose use and disposition had not been directed by the voters. That this is a legitimate criticism as to the meaning and effect of the notice is found in the fact that the notice contains this further provision, that the surplus of the $25,000 which remains after completing and erecting the school house and enlarging the light and water plant shall be used by the mayor and council in such other manner as they might see fit The power given to a municipal corporation to create a new debt, and issue bonds in payment thereof, is an important one to the taxpayer; so much so that the framers of the constitution have declared that such a debt should not be created without the assent of two-thirds of the qualified voters of the municipality proposing to issue the bonds. In the same spirit, the legislature, which was charged with passing laws to carry this provision into effect, declares specifically that before the election is held the municipal authorities by publication shall inform the...