Anderson v. Newton , 123 Ga. 512 ( 1905 )

Evans, J.

(After stating the facts.) 1. On the call of the case in this court, a motion was made to dismiss the main bill of exceptions, on the ground that it contained no legally sufficient assignment of error. The plaintiffs in error therein complain, in general terms, that the court erred in holding, (1) that there was no such urgent necessity as justified the levy of a tax before the people had been afforded another opportunity to vote on the issuance of bonds; and (2) for this reason the commissioners should be enjoined from carrying into effect the contract made with the Winder Lumber Company, notwithstanding there was no irregularity connected with that contract which the commissioners were not authorized to waive. While the exceptions to the judgment of the court may not be altogether orthodox, in that no specific reason is assigned why. the rulings of the court were erroneous, yet we think they are legally sufficient, tested by the loose practice to which our General Assembly has lent its countenance. The Civil Code, §5569, declares that this court shall not “ dismiss any case for any want of technical conformity to the statutes or rules regulating'the practice in carrying cases to [this] court, where there is enough in the bill of exceptions or transcript of the record presented, or both together, to enable the court to ascertain substantially the real questions in the case which the parties seek to have decided.” “In other words, an assignment of error will be sufficient if this court, viewing it in the light of the record, can ascertain substantially what questions the trial court passed on, and which are sought to be reviewed here.” Turner v. Alexander, 112 Ga. 821. In an endeavor to follow this legislative mandate, this court, in Carter v. Jackson, 115 Ga. 679, laid down the rule that “A general exception.to the judgment, and a specific assignment of error on the special ruling upon which the judgment was based, is sufficient to present for consideration the question whether the court erred in the special ruling complained of, and in entering the general judgment” in accordance with such ruling. In Atlanta Ry. Co. v. Atlanta Rapid Transit Co., 113 Ga. 481, the complaint made of the refusal to grant an injunction was that the judgment of the court was contrary to the law and evidence in the case, without assigning any reason why this was so; and still the assignment of error was deemed sufficient to withstand a motion to dismiss the writ of error. In Wyatt v. Crowder, 112 Ga. 168, this court was able to ascertain from the record that the refusal of an injunction was necessarily based upon the opinion entertained by the judge that the petition, taken as true, did not entitle the plaintiffs to the relief prayéd for; and this being so, a general complaint that the court erred in denying an injunction was held to be a legally sufficient assignment of error. Likewise, where the direction of a verdict has been characterized as erroneous, without any reason being assigned why the judgment of the court was wrong, we have retained writs of error upon the bare supposition that the plaintiff in error intended to attack the judgment on the ground that, in view of the pleadings and the evidence submitted in support thereof, the court committed an error of law in holding that the party in whose favor the verdict was directed was entitled to prevail. Phillips v. Railway Co., 112 Ga. 197; Howell v. Pennington, 118 Ga. 496-7; Taylor v. McLaughlin, 120 Ga. 705. In the present case, the pleadings disclose what issues of fact were presented for determination, and the bill of exceptions contains a brief of the evidence offered in support of the contentions of the respective parties. We are thus in a position to determine by what rules of law the presiding judge should have been guided in the exercise of his discretionary powers, and the written order which he passed sets forth his decision upon each of the several questions on which he undertook to pass. The county commissioners acquiesce in the correctness of some of the rulings therein made, but complain that the rulings made on some of the questions passed on were erroneous. We therefore-are informed that they have a more or less definite consciousness that the rulings excepted to are wrong, and we are doubtless warranted in assuming that they are attacked on the ground that,, in view of the undisputed facts appearing on the trial and the law applicable thereto, the court incorrectly held it was within its province to grant an injunction for the reasons set forth in the order which it passed. Upon this assumption the motion to dismiss the writ of error is overruled; and we will upon this assumption endeavor to deal with what we conceive to be the actual grounds upon''which the parties enjoined complain that their liberty of action in the premises has been interfered with.

2. The court correctly held the advertisement for bids to erect a new court-house was not, for any of the reasons urged by the complainants, too uncertain and indefinite to put bidders and the general public on notice of the terms and conditions upon which the structure was to be built. The advertisement, expressly provided that bids were to include the furnishing of furniture for the building, and referred to plans and specifications on file in the office of the board of county commissioners for minute information as to the character of the structure and the kind and quantity of furniture with which it was to be fitted. That bids were invited for the construction of a court-house on a given site not to exceed a stated amount, and also for the erection of the building on a different site at a cost not exceeding another stated amount, did not render the invitation confusing. Separate advertisements asking for separate bids would not better have given notice of the intention of the commissioners to decide whether, after the cost of erecting the building on each of the sites mentioned had been ascertained, the contract would be let to the lowest bidder proposing to erect the court-house on the “ jail lot,” or to the lowest bidder proposing to erect the structure on the site on which stands the building now used as a court-house. We can not conceive that any bidder who had sufficient intelligence to erect such a building was deterred from bidding simply because he did not understand that the commissioners wished to ascertain, before awarding the contract, what would be the relative cost of erecting the new court-house on the present site as compared with the cost of erecting it on the “jail lot.” The times and the terms of payment of the contract price ■ were stated with all necessary particularity; that full payment was to be made within • the current year was stated beyond perad venture. . County' warrants were to be issued as the work progressed from one stage of completion to another, the same to be “due and paid on or before Dec. 28, 1905;” presumably, it was contemplated that these warrants would be paid promptly as issued ; certainly there is no suggestion to the contrary, but an express stipulation that they were to be paid “on or before” the date fixed for the completion of the building. A legal promise of payment is made, and it can not be assumed that the commissioners had no intention of performing this promise. Though there might be no secret of the fact, that the county owed certain outstanding indebtedness and had little or no ready funds in its treasury, this circumstance in no way negatived the intention or ability of the commissioners to make the proposed payments; it was at least within their power to pay, for they were vested with authority to raise the necessary funds by the levy of a direct' tax. If any one was deterred from bidding because he doubted the fulfillment of the promise to pay, it must have been because he had reason to believe the county would be a debtor he feared to trust, and not because the advertisement inviting his trust and confidence was itself ambiguous or in any respect ■defective.

3. Equally clear is it that-the court correctly held that the board of county commissioners was vested with discretionary power with respect to deciding whether or not the erection of a new court-house was a present and urgent public necessity, and, if so, upon what site it should be built. The evidence authorized, if it did not demand, the further conclusion that the commissioners were acting within the powers conferred upon them by law, in taking the steps which they pursued in carrying ■out their intention of providing the county with a suitable courthouse by letting out the contract for the erection thereof to the Winder Lumber Company. Indeed the proposed tax was not shown to be a burden which they could not lawfully impose upon the property owners of the county, nor was it shown that the court could properly, for any other reason, interpose and enjoin the carrying out of the project upon the idea that the county authorities were not acting wholly within the scope of the discretionary powers expressly conferred upon them by law. “ The' discretion vested in the county authorities must be from the nature of the case a broad one; and therefore the reviewing power of the judge of the superior court must be exercised with caution, and no interference had unless it is clear and manifest that the county authorities are abusing the discretion vested in them by law.” Commissioners v. Porter Mfg. Co., 103 Ga. 617. The levy of an additional tax of two' per cent, or less, when necessary to raise the amount required, can not be considered an exorbitant assessment or unauthorized burden imposed on the taxpayer. Dyer v. Erwin, 106 Ga. 845, 849. The fact that he may also be liable to municipal taxation affords no ground for suffering the needs of the county to go unsatisfied; however burdensome municipal taxation may be, the necessity of providing the county with a suitable courthouse should be met, if this can be done by levying a county tax which is not itself exorbitant;, the citizen must forego the luxury of city life, if unable to bear its incidental expense and still perform the obligations of a citizen which he owes to the county. The Political Code, § 396, conferring upon the judge of the superior court jurisdiction to review the action of the county authorities, does not contemplate that the extravagances of a muncipal corporation shall defeat the power of such authorities to supply the wants of the county..

4. The presiding judge having properly declined to grant an injunction on the ground that the building of the new court-house was unnecessary, or because the proposed tax was exorbitant, as claimed, it only remains to inquire whether it was within his province to determine the expediency of taking immediate action or postponing action till the people could be afforded another opportunity of voicing their opinion as to the advisability of issuing bonds for the purpose of raising funds with which to erect the contemplated building. The county commissioners had the discretionary power to decide whether the requisite funds should be raised by a tax imposed for the current year, or by the issuance of'bonds, provided authority to issue the same could be secured from the voters of the county at an election duly held in accordance with the provisions of the constitution. Elliott v. Gammon, 76 Ga. 766. An election had previously been held, at which the people declined to authorize the issuance of bonds; and the commissioners doubtless exercised a wise discretion in determining to no longer delay the matter, but to presently meet the emergency by awarding a contraet'for the construction of the building and levying a tax to meet the necessary expense. It was not within the power of the court to override their decision as to this matter, even though the judge may have been justified in his conclusion that the necessity of erecting a suitable building was not so “urgent” as to make improper the delay incident to holding another election. The only question he was called on to decide was whether the necessity existed, and, if so, whether the proposed tax wouíd be exorbitant. The commissioners having determined to exercise their power to levy a tax, the court had no power to order an election, nor any authority to delay action on the part of the commissioners in order that the people might, vote on the advisability of issuing bonds.

Judgment on main bill of exceptions reversed; on cross-bill affirmed.

All the Justices concur, except Simmons, C. J., absent