Soles v. City of Vidalia

• Decision Date: 11 October 1955
• Docket Number: No. 35891,No. 2,35891,2
• Citation: 92 Ga.App. 839,90 S.E.2d 249
• Parties: W. L. SOLES v. CITY OF VIDALIA
• Court: Georgia Court of Appeals

Page 249

90 S.E.2d 249

92 Ga.App. 839

W. L. SOLES v. CITY OF VIDALIA.

No. 35891.

Court of Appeals of Georgia, Division No. 2.

Oct. 11, 1955.

Rehearing Denied Oct. 27, 1955.

Syllabus by the Court

1. The certiorari bond in this case being made payable to the named city recorder and his successors in office must be construed as being made payable to him and his successors in office in their official capacity on behalf of the municipality. Being the officer whose duty it is under the charter of the municipality to forfeit all appearance bonds when the principal shall fail or refuse to appear at court at the times and places therein specified, he is the proper officer to enforce its provisions. Accordingly, the bond constituted a valid contract between the obligors and the city, adequate to the accomplishment of the purposes mentioned in the statute providing for certiorari bonds, Code, § 19-206, and conditioned according to the obligation therein stated.

2. The ordinance for the violation of which the plaintiff in error was convicted--making it unlawful for any person to idle, loiter or loaf on the streets, sidewalks, alleys, lanes, parks or squares of the City of Vidalia or in any public building therein, and which makes no exception for persons thus engaged who are in no way interfering with the rights of others, who are guilty of no disorderly or obnoxious conduct, and who are engaged in no conduct resulting in impeding traffic, the congregation of persons resulting in obstruction thereof, or other such conduct that may reasonably be regulated by a municipality under its police powers--is void for unreasonableness.

W. L. Soles was convicted in the Recorder's Court of the City of Vidalia of the violation of a municipal ordinance against idling and loitering. His application for certiorari was dismissed by the Judge of the Superior Court of Toombs County, and this judgment is assigned as error.

Steve M. Hall, W. T. Whatley, Lyons, for plaintiff in error.

Duncan Graham, Vidalia, for defendant in error.

TOWNSEND, Judge.

1. The appearance-supersedeas bond in certiorari must be executed according to the provisions of Code, § 19-214 as a condition precedent to the sanctioning of the application. Among other things, the bond shall be made payable 'if the conviction be in a municipal court, to the municipality.' This condition, however, is satisfied if the obligee in the bond is such an officer of the municipality as has power to bind it in the subject matter of the instrument. 'If it is a valid contract between the obligors and the city, adequate to the accomplishment of the purposes mentioned in the statute and conditioned according to the obligation therein stated, it is good.' Williams v. City of Tifton, 3 Ga.App. 445, 60 S.E. 113, 114. (In which case it was held that a bond payable to a named person as mayor of the City of Tifton and his successors in office substantially complied with the statutory provisions.)

In this case the bond was made payable to 'Nat. O. Carter, City Recorder of Vidalia, or his successors in office,' he being the City Recorder who tried the case in which the defendant was convicted. If such bond was given to the obligee in his personal capacity only it would not, of course, be a valid contract with the city. Code, § 4-401, and citations. It appears, however, from the charter of the City of Vidalia, Ga.L.1922, pp. 1004, 1023-1025, that under section 24 the recorder has power and authority, where that office has been created, to try all offenses against the ordinances of the city, and under section 26 he has authority 'to forfeit all appearance bonds when the principal shall fail or refuse to appear at said court at the time and places specified therein, under such rules and regulations as the Mayor and Council of said city shall by ordinance prescribe, and the said police court shall have the power and authority to do so, generally, all other acts and things necessary for the proper enforcement of its authority.' Accordingly, the recorder is the person charged with the responsibility of forfeiting appearance bonds such as this when their conditions have not been complied with, and he necessarily does so for and on behalf of the city as such officer. This being so the petition affirmatively shows a valid contract between the obligors and the city for this purpose, and it was not subject to dismissal upon this ground. Nothing to the contrary was held in Williams v. City of Dublin, 24 Ga.App. 358, 100 S.E. 777, or Long v. City of Crawfordville, 55 Ga.App. 182, 189 S.E. 685. In those cases it did not affirmatively appear that there was any named obligee in the bond, which was held to be a fatal defect.

2. The charter of the City of Vidalia, which is not under attack, provides in section 68 that the mayor and council 'sahll have the right and authority, by ordinance, to prohibit idling, loitering and loafing on the streets, alleys, lanes, squares and side walks of said city, or upon any of them, and to prohibit the idling, loitering and loafing in any of the public buildings in said city, and to prescribe penalties for the violation thereof.' Pursuant to such charter provision a city ordinance, for the violation of which defendant was convicted, was enacted providing in part that 'it shall be unlawful for any person to idle, loiter or loaf upon any of the streets, sidewalks,...