Oliver v. City of Elberton , 124 Ga. 64 ( 1905 )

LuMPKIN, J.

(After stating the facts.) 1. Two points are made in this case. First it is argued, that, inasmuch as the notice of the time and place set for the hearing of the petition to validate the bonds had been published only once, instead of twice as required by law (Acts of 1897, p. 82, sec. 6), when the time arrived, the court was without jurisdiction and could not continue the hearing or require proper publication to be made, but the entire proceedings went for naught. This point is controlled in principle by the decision in Wimberly v. County of Twiggs, 116 Ga. 50, 51, where it is said: “Certainly the superior court of Twiggs county was the only court which had jurisdiction to validate the bonds, and the fact that the hearing was had before the judge on a day other than that named in the published notice does not render the judgment illegal, when it further'appears that the case was regularly continued by the court from the day named in the publication to the day on which the hearing was had. The object of the publication is to inform citizens, whose interests are to be affected, of the time when the case is set to be heard.” This shows that the proceeding is, like a case, subject to continuance from the day first fixed to a later date, and that the court does not lose jurisdiction because the hearing is not had at the time first fixed. Here the municipal corporation had been served with the rule and had answered, and the plaintiffs in error had appeared and been made parties. The court was not wholly without jurisdiction, and had authority to reassign the hearing for another time and place by order, and to cause a new publication to be made reciting the continuance and giving notice of such time and place. In Roff v. Calhoun, 110 Ga. 806, no petition for the purpose of validating the bonds there concerned was filed until after the lapse of the time allowed by the statute for beginning such proceedings, and it was held that it was then too late to file it.

As to the general power to, continue cases to have service perfected, where jurisdiction has been acquired, see 4 Enc. Pl. & Pr. 832; Atlanta & Charlotte Air-Line Ry. v. Harrison, 76 Ga. 757; Allen v. Mutual Loan & Banking Co., 86 Ga. 74; Lassiter v. Carroll, 87 Ga. 731.

2-6. It is urged that the court erred in passing an order validating the bonds, because provision had not been made for their payment as required by law, and the pleadings and evidence showed that the ordinance actually passed for that purpose was not in accordance with law. Before bonds can be legally issued, such a provision must be made; and their issuance may be enjoined if an attempt be made to issue them without it; or mandamus may be resorted to in a proper case. But it has been held that the making of such a provision is not necessary before a proceeding to validate the bonds can be had. Epping v. Columbus, 117 Ga. 263-280. It is true that the following language was used in the decision (p. 281) : “If when the application is made to validate the issue of bonds it appears to the judge, either from the pleadings or otherwise, that the authorities of the municipality or county do not intend to make provision for the payment of the bonds in the manner required by the constitution, of course he should not render a judgment validating the issue of bonds.” In that case it was alleged as an objection that no provision had been made, and this was held not to render the validation improper. The sentence quoted above was really an obiter dictum; but construed in the light of the authority cited in support of it, and when correctly limited, it was sound. The authority cited was Wilkins v. Waynesboro, 116 Ga. 359. In that case, there was an unconstitutional clause in the act of the legislature authorizing the issuing of bonds; and the ordinance calling the election and the notice required to be given under the act of 1897 contained illegal provisions. Thus the election itself was tainted with illegality, and no bonds could be issued under it. If the' foundation had been legal and the election proper, on a proceeding to validate the bonds, it has been seen that the failure, to show the making of a provision for payment would not cause the refusal of a judgment of validation. In the case at bar it is not claimed that the ordinance calling the election, or the notice given, contained any illegality which infected the election. In fact the ordinance calling the election is not in the record. The municipal authorities did at some time, which does not clearly appear, pass an ordinance providing for payment of interest by taxation and the creation of a sinking fund to pay off the bonds at maturity by levying taxes annually, aggregating less than the principal sum, and lending out the amount at interest. This plan was not in accordance with the constitution (art. I, see. 7, par. 2), and was illegal. Civil Code, §5894. The question is whether this independent ordinance should have the effect of practically overthrowing the election, or whether, if all the steps necessary to a judgment validating the bonds were taken, the bonds should be validated, but this ordinance be declared void, and the city be allowed to make proper provision for payment according to law, before issuing the bonds. The city in its answer set out the plan for making payment which this ordinance embodied; and'added that if this were not a constitutional provision, it would pass an ordinance providing for a sufficient annual tax for the payment of the principal and interest of the bonds. Objections were filed by the plaintiffs in error, and the judgment merely confirms and validates the bonds, saying nothing as to the point so raised. Standing thus, the judgment would seem to include an approval of this provision for payment. While we think that the entire result of the election should not be destroyed by reason of this illegal ordinance, still it should not be approved even by implication. We therefore affirm the judgment, but direct that it be amended by declaring the provision for payment set up not to be legal, and that provision for payment must be made according to law before the bonds are issued. No claim is made that this will exceed the constitutional limit of indebtedness which the city may incur, and we therefore presume that it will not do so.

Judgment affirmed, with direction.

All the Justices concur.