Gibbs v. City of Social Circle , 191 Ga. 422 ( 1940 )

In Goolsby v. Board of Drainage Commissioners,156 Ga. 213 (10) (supra), it was held that where bonds issued under the drainage laws of this State were duly validated, landowners who had notice of the validation proceedings and failed to intervene therein were estopped from attacking the constitutionality of the statute under which such bonds were issued. The decision in that case was concurred in by all the Justices, and is binding here, provided it is applicable. While the provisions for validation were added by amendment to the drainage law and merely incorporated by reference other statutes relating to validation, the writer is of the opinion that the ruling in that case is applicable in the case at bar, although the soundness of it is not conceded. It seems to the writer that the better view would be that if a statute as a whole is unconstitutional and provisions for validation are a part of it, any purported judgment of validation would not estop a taxpayer where he did not become a party to such proceeding, or where, if he did become a party, no question as to the validity of such statute was made and adjudicated against him. Moore v.Wheeler, 109 Ga. 62 (35 S.E. 116); Griffin v. Eaves,114 Ga. 65 (39 S.E. 913); McDonald v. State, 126 Ga. 536 (55 S.E. 235); State Board of Medical Examiners v. Lewis,149 Ga. 716 (2) (102 S.E. 24); Andeppa v. Kidwell, 179 Ga. 233 (175 S.E. 555); Reynolds v. State, 181 Ga. 547 (182 S.E. 917).

The writer is of the further opinion that even regardless of the ruling in the Goolsby case there is no merit in the present writ of error, for the reason that the statute here under attack is not unconstitutional as a whole, nor is the part of it relating to validation invalid as contended. There being no merit in the constitutional questions raised, then the judgment of validation did estop the plaintiff as to other questions. With this explanation and addition, I concur in the opinion as prepared for the court by Mr. Justice Duckworth, and in the judgment of affirmance.