Spencer v. City Of Columbus

• Decision Date: 18 June 1920
• Docket Number: (No. 1906.)
• Citation: 103 S.E. 464,150 Ga. 312
• Parties: SPENCER. v. CITY OF COLUMBUS.
• Court: Georgia Supreme Court

150 Ga. 312

103 S.E. 464

SPENCER.

v.CITY OF COLUMBUS.

(No. 1906.)

Supreme Court of Georgia.

June 18, 1920.

(Syllabus by the Court.)

Error from Superior Court, Muscogee County; G. H. Howard, Judge.

Suit for injunction by R. P. Spencer, Sr., against the City of Columbus. Injunction denied, and plaintiff brings error. Affirmed.

Geo. C. Palmer, of Columbus, for plaintiff in error.

H. C. McCutchen, of Columbus, for defendant in error.

GEORGE, J. On July 29, 1919, an election was held in the city of Columbus, for the purpose of determining whether certain municipal bonds should be issued. The election resulted prima facie in favor of the issuance of said bonds. On July 31, 1919, the authorities of the city caused to be served upon the solicitor general of the circuit the notice as provided in section 445 of the Civil Code of 1910. Within the time prescribed by section 446, to wit, on August 1, 1919, the solicitor general presented to the judge of the superior court of the circuit a petition to validate the bonds. The petition was duly filed in the office of the clerk of the superior court, within 20 days from the date of the service upon the solicitor general. Upon the petition the judge passed an order requiring the city to show cause, on August 23, 1919, why the bonds should not be validated. On the date named in the order (the notice required by statute having been published and the municipality having answered), the judge rendered his judgment validating and confirming the issue of bonds as prayed. No exceptions were taken to this judgment. More than 20 days from the date of the judgment a citizen and taxpayer of the city, by petition in equity, sought to enjoin the issuance and sale of the bonds and the levy and collection of a tax to pay the same. Upon the hearing for interlocutory injunction, and in this court, it was conceded that the judgment validating the bonds, duly pleaded in bar by the city, if valid, adjudicated all the matters contained in the petition. The judgment was attacked upon the ground that the judge, having set the cause for hearing and having heard and determined the same more than 20 days after the petition of the solicitor general was filed and presented, lost jurisdiction of the cause. The injunction was denied, and the plaintiff excepted.

Section 446 of the Civil Code declares that the solicitor general, "within twenty days from the date" of the service of notice upon him, notifying him that a municipality has held an election to determine whether bonds should be issued, and that the election resulted prima facie in favor of the issuance of such bonds, shall prepare and file in the office of the clerk of the superior court of the county in which the election was held a petition against such municipality, and "shall obtain from the judge of said court an order requiring * * * the municipality * * * to show cause at such time and place, within twenty days from the filing of the petition, as the judge of the court maydirect, why the bonds should not be confirmed and validated."

There is a class of cases which hold in effect that when a statute directs a person to do a thing, in a certain time, without any negative words restraining him from doing it afterwards, the naming of the time will be considered as directory to him and not a limitation of his authority. See Horkan v. Beasley, 11 Ga. App. 273, 75 S. E. 341; Pond v. Negus, 3 Mass. 232, 3 Am. Dec. 131; People v. Peck, 11 Wend. (N. Y.) 604, 27 Am. Dec. 104; People v. Cook, 14 Barb. (N. Y.) 259. The mere presence or absence of negative words seems to be made a test in other cases. Stayton v. Hillings, 7 Ind. 144; King v. Inhabitants of St....