Vornberg v. Dunn

• Decision Date: 10 February 1915
• Docket Number: 174.
• Citation: 84 S.E. 370,143 Ga. 111
• Parties: VORNBERG ET AL. v. DUNN ET AL., COM'RS OF ROADS AND REVENUES.
• Court: Georgia Supreme Court

84 S.E. 370

143 Ga. 111

VORNBERG ET AL. v. DUNN ET AL., COM'RS OF ROADS AND REVENUES.

No. 174.

Supreme Court of Georgia

February 10, 1915

Syllabus by the Court.

Where certain citizens of a county, representing themselves to be "registered voters and poll tax payers" of the county, petition the "ordinary" of the county to call an election and submit to the people of the county the question of the removal of the county site to a named town in the county, the notice is not void because it was directed to the "ordinary" of the county, instead of to the court of "ordinary."

The calling of the election by the "ordinary" as authorized by the statute determined at least prima facie that the petitioners were of the class and were of a sufficient number as required by the statute for the purpose of calling an election at which the question of the removal of the county site to a named town within the county should be voted upon.

Where such an issue as set out in the preceding headnotes has been submitted to the people to vote upon, and the result has been declared by the ordinary of the county, and an appeal as provided for by statute is made to the Secretary of State who certifies his findings to the Legislature, and that body enacts that the removal of the county site be had in accordance with the findings of the Secretary of State, and the preamble of the act recites that two-thirds of the legal voters of the county have voted in favor of such removal, the enrolled act of the Legislature, reciting the facts necessary to authorize the removal, will be held to have conclusively determined that the election resulted in two-thirds of the legal voters of the county favoring the removal, as required by statute.

The tax levy in this case was not shown to be excessive.

The court did not err in refusing an injunction.

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

Equitable petition by F. E. Vornberg and another against D. R. Dunn and others, as Commissioners of Roads and Revenues of Murray County. Judgment for defendants, and plaintiffs bring error. Affirmed.

W. W Sampler, of Spring Place, and Hendricks & Hendricks, of Nashville, for plaintiffs in error.

W. C Martin and W. E. Mann, both of Dalton, Jesse M. Sellers, of Chatsworth, H. H. Anderson, of Spring Place, and Little, Powell, Hooper & Goldstein, of Atlanta, for defendants in error.

HILL J.

The Legislature of this state in 1913 (Acts 1913, p. 423), after reciting that:

"Whereas, heretofore on the 19th day of August, 1912, a petition was filed with the ordinary of the county of Murray, and state of Georgia, signed by two-fifths of the registered voters, as shown by the registration list last made out, in and for said county, asking for an election to be held in said county of Murray for the purpose of changing and removing the county site of said county from the town of Spring Place to the town of Chatsworth, in said county; and, whereas, on the said 19th day of August, 1912, the ordinary of said county of Murray, upon the due consideration of said petition so filed with him, did pass an order for an election to be held in the various militia districts of said county, on the 30th day of September, 1912, for the purpose of changing and removing the county site of said county as asked for by petitioners, which said order was duly published in the Murray News, the newspaper in which the sheriff of said county publishes his legal notices, as provided by section 486 of volume 1 of the Code of 1910; and, whereas, on the 30th day of September, 1912, said election was held in said county for the purpose of changing said county site, in accordance with said order from said ordinary, and at said election so held there were 862 votes for removal to Chatsworth and 427 votes for removal to Eton, and 155 votes against removal; and, whereas, afterwards said election was contested, contesting the right of the votes cast for removal to Eton, to be counted, on the ground that said election was called for removal to Chatsworth, said contest being heard by the Secretary of State; and, whereas, the Secretary of State decided said contest as follows: That there were 1017 legal votes cast in said election, 862 for removal to Chatsworth, and 155 votes against removal, now, therefore"

--enacted that the county site of Murray county be removed from Spring Place to the town of Chatsworth in the county of Murray. In pursuance of this act of the Legislature, and by virtue thereof, the board of county commissioners of Murray county did, on the 1st day of September, 1914, in addition to the general tax levy, order that there be assessed, levied, and collected a special tax of 60 cents on the $100 of all taxable property in the county of Murray for the year 1914 as a jail fund to be used in erecting a new jail for that county at Chatsworth. The commissioners also adopted an order on the 10th day of September, 1914, inviting sealed proposals for the erection and completion of a jail building, to be located on the new courthouse square in the town of Chatsworth. It was provided that the building should be commenced on or before the 15th day of October, 1914, and should be completed on or before November 30, 1914, at a cost not exceeding $12,000. Certain details of the specifications and the time when payments should be made were set out, which it is not necessary here to detail.

To the levy of this special tax, F. E. Vornberg and C. W. Brown brought their equitable petition against D. R. Dunn, J. A. McGhee, and T. H. Hemphill, as commissioners of roads and revenues of Murray county, seeking to enjoin them from opening, accepting receiving, or approving bids from any contractor, or contracting with such, for the purpose of the erection of the jail building as contemplated; and that T. P. Ramsey, the tax collector of Murray county, be enjoined and restrained from collecting the tax levy of 60 cents on the $100 to be used as a fund for erecting the jail as proposed. It was prayed: (a) That the call of the election to remove the county site from Spring Place to Chatsworth in Murray county, and all subsequent proceedings in furtherance of the call, and the election held in pursuance thereof, be declared illegal and void as being in violation of article 11, § 1, par. 4, of the Constitution of the state as embodied in Civil Code 1910, § 6597, which provides that:

"No county site shall be changed or removed, except by a two-thirds vote of the qualified voters of the county, voting at an election held for that purpose, and a two-thirds vote of the General Assembly."

It was further prayed: (b) That the act of 1913, cited supra, be declared illegal and void as being in violation of the same provision of the state Constitution above quoted, and for the further reason that the...