Wilson v. Jones
| Decision Date | 11 February 1963 |
| Docket Number | No. 21872,21872 |
| Citation | 218 Ga. 706,130 S.E.2d 227 |
| Parties | Ewart WILSON v. John S. JONES, Commissioner, et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. The plaintiff, as a citizen and taxpayer, has the right to question the sale of county property and the purchase of new property.
2. Under the allegations of the petition the purported sale of county property and purchase of new property did not comply with sections 11 and 12 of the act of March 6, 1956 (Ga.L.1956 pp. 2899, 2902). It was error to sustain the general demurrers of the county commissioner and Marks.
3. It was not error to sustain the general demurrer of defendant Julian Harrison, Inc.
Cook & Palmour, Summerville, for plaintiff in error.
Robert Edward Surles, F. H. Boney, Summerville, John W. Maddox, Matthews, Maddox, Walton & Smith, Rome, for defendants in error.
The bill of exceptions assigns error on the sustaining of general demurrers to a petition seeking injunctive relief.
Ewart Wilson, as a citizen and taxpayer of Chattooga County, in his petition against John S. Jones, as Commissioner of Roads and Revenue of Chattooga County, James Marks and Julian Harrison, Inc., sought to enjoin the defendants from consummating a sale of county property and the defendant Jones from purchasing personal property from the other defendants. It was alleged that Jones, as county commissioner, published in one issue of the Summerville News an advertisement for bids as follows: There had been no prior advertisement for bids on the abovedescribed property, nor for the said sale of county property; nor any subsequent advertisement for bids for sale of county property. Said advertisement for bids did not state the date and place for opening bids; and the bid hereinafter related was opened immediatly upon being received.' (Paragraphs 4 & 5 of plaintiff's petition.) It was further alleged that in response to this call for bids the defendant Marks submitted the following bid: Signed James H. Marks. It was further alleged that Commissioner Jones by letter accepted this bid.
It was alleged that the proposed purchase of the two trucks and the sale of the two county-owned trucks violated the provisions of §§ 11 and 12 of the act of March 6, 1956 (Ga.L.1956,[218 Ga. 708] pp. 2899, 2902) which provide: That it shall be unlawful for the Commissioner of Chattooga County to sell any county property except by competitive bids after advertising once a week for three weeks. Such advertisement shall give a complete description of the property offered for sale. All purchases in excess of $50 shall be upon a sealed competitive bid after advertisement, which shall state the date and place of the opening bid.
It is asserted that the acts of County Commissioner Jones violated the act of 1956 and rendered illegal the proposed purchase and sale of county property in the following particulars: (a) The advertisement for the sale of county property was not advertised once a week for three weeks; (b) the advertisement for the purchase of two trucks and sale or exchange of two trucks did not state the date and place of opening the bids; (c) the advertisement was too vague in its specifications for a proper bid to be based thereon. It was alleged that the failure of County Commissioner Jones to comply with the provisions of the 1956 act rendered the proposed contract for the purchase and sale of county-owned property and the bid of the defendant Marks and its acceptance by County Commissioner Jones null and void.
The court below sustained the separate general demurrers of the three defendants.
1. It is contended by the defendant County Commissioner Jones that the plaintiff being devoid of any interest or injury cannot challenge the acts of the defendant commissioner. This court has repeatedly held that citizens and taxpayers have such an interest in county property as will authorize them to resort to injunctive relief to prevent an alleged sale or disposition of such property. Malcom v. Webb, 211 Ga. 449, 451, 86 S.E.2d 489; Timbs v. Straub, 216 Ga. 451, 117 S.E.2d 462. Following this unbroken line of authorities we hold that the plaintiff has the right to challenge the acts of the defendant county commissioner.
2. We now consider the general demurrers of the defendant County Commissioner
Jones and Marks. We are of the opinion that the trial court erred in sustaining their general demurrers.
The petition alleges that in the advertisement for bids on the sale or disposition of the two county-owned trucks, the defendant county commissioner did not comply with § 11 of the act of 1956, Ga.L.1956, p. 2902, which provides: 'It shall be unlawful for the commissioner to sell any county property, real or personal, which may lawfully be sold, except by competitive sealed bids, after advertisement for such bids in the official organ of Chattooga County once a week for the three (3) weeks immediately preceding the date on which such bids must be submitted,' in that the advertisement for bids was run only one time. Whether the proposed purchase of the two new trucks and the invitation to bidders 'to quote best offer in exchange' on the two county-owned trucks be called barter or exchange, in its essence it was an attempt to sell or dispose of county property. The provision of § 11 that county property, real or personal, can not be sold except after advertisement for three weeks for competitive bids is mandatory. The petition sufficiently alleged a noncompliance with this section to withstand a general demurrer.
The defendant county commissioner contends that since the petition does not allege that the two county-owned trucks were serviceable, it must be presumed that he was disposing of them as being nonserviceable and that he had the right to do so under Code § 91-804 without advertisement for bids. This Code section provides that when any public property shall become unserviceable it may be sold or otherwise disposed of by order of the...
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