Manry v. Gleaton

138 S.E. 777, 164 Ga. 402, 1927 Ga. LEXIS 203

• Court: Supreme Court of Georgia
• Decided: June 25, 1927
• Docket: No. 5583
• Status: Published

Opinions

Atkinson, J.

This is a suit by citizens and taxpayers of Calhoun County against the board of commissioners of roads and revenues of that county, for the writ of mandamus to compel the respondents to erect a court-house at Arlington, the new county-site. The exception is to a judgment overruling a general demurrer to the petition, and striking portions of the answer of the respondents, and granting a mandamus absolute. There was no contention by the respondents that they did not have authority to erect a court-house, or that the authority formerly devolving upon the justices of the inferior courts, and latterly upon the ordinaries of the counties when sitting for county purposes, does not now devolve upon them; nor that mandamus was not an available remedy for official inaction with reference to a public duty devolving upon officials. But it was contended by them that they had a discretion as to whether they would “erect” a court-house, and that under the facts and circumstances of the case they had' not abused their discretion. The controlling question of law is as to this discretion. It is provided in the Civil Code (1910), § 400: “It is the duty of the ordinaries to erect or repair, when necessary, their respective court-houses and jails, and alb other necessary county buildings, to furnish each with all the' furniture necessary for the different rooms, offices, or cells, and to procure a fire-proof safe, or safes, sufficient to hold at least all the minute-books and books containing records of judgments, books of officers’ bonds, all recognizances, the bonds of administrators and guardians, the record of wills and of appraisements and sales, unless the courthouse has a fire-proof vault; such books and papers, and all others that can, must be placed in such safes or vaults at night, or when the officers are absent.”

The case of Commissioners v. Porter Manufacturing Co., 103 Ca. 613 (30 S. E. 547), concurred in by all the'Justices, involved authority and discretion of the commissioners to levy a tax to build a new court-house in Habersham County. The county had an old court-house, and the commissioners determined to build a new one. When a special tax was levied to build the new court-house, an injunction was sought to prevent collection of the tax, one of the grounds of complaint being that a new court-house was not needed, and that in the. circumstances it was an abuse of discretion to build ■the new court-house. The opinion in that case deals at length with the subject of discretion of the commissioners as to county affairs coming under their administration. Quoting from and paraphrasing what is now § 400 of the Civil Code, the opinion contains the following: “It is the duty of the county authorities having jurisdiction of county matters ‘to erect and repair, when necessary, their respective court-houses and jails and all other necessary county buildings/ furnishing each of .the buildings with such furniture and appliances as are necessary to accomplish the ends for which they were erected, and to preserve the public records and property which are required to be there kept. There is not, and never has been, any general law of this State, undertaking to determine when public buildings in the various counties shall be erected, and what character of buildings are to be built, or what their cost shall be. From necessity, no general law dealing in matters of detail in regard to these subjects could be satisfactory to the people of the different counties. The necessities of the various counties in regard to these matters are to be determined by the peculiar conditions surrounding each county; and therefore the sound judgment of the county authorities in each case must be relied upon to provide the public with proper buildings on the one hand, and to protect the taxpayer from useless and unnecessary burdens in regard to such matters on the other. While the power of the county authorities to levy taxes for certain purposes is limited as to amount to be levied, and as to others the power is dependent upon a recommendation of the grand jury (Political Code [1895], §§ 397, 399), still, in reference to the duty of providing the county with public buildings whenever in the judgment of the county authorities public buildings are needed, the right to levy a tax sufficient to carry into effect such purpose is unlimited as to amount, and requires no action by the grand jury. Political Code, § 395. This duty, however, is to be discharged under the revision of the judge of the superior court; and if the tax be an exorbitant tax, or an unnecessary tax, a taxpayer lias a right to complain to the judge by application for injunction against the alleged wrongful levy. Political Code, § 396. 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. See Barlow v. Ordinary of Sumter County, 47 Ga. 639; Waller v. Perkins, 52 Ga. 233. The matter is left in the first instance to the discretion of the county authorities, to be controlled only by the discretion of the superior court to be exercised within limits. This discretion is to be wisely and cautiously exercised by the county authorities, and the judge of the superior court in dealing with their action must exercise that wisdom and caution which is required of those whose conduct is under review.” The trial court had enjoined collection of the tax, holding in effect that the commissioners did not have a discretion to act in the matter of levying the tax to build the new court-house; and the judgment was reversed.

In the case of Anderson v. Newton, 123 Ga. 512, 521 (51 S. E. 508), the trial court refused to interfere with the discretion of the commissioners in determining to build the new court-house, and that judgment was affirmed. It was said in the opinion: “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 court-house 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/” In Gaines v. Dyer, 128 Ga. 585 (58 S. E. 175), the trial court refused to enjoin levy of a tax and making a contract to build two bridges across the Chattahoochee river, one on the site of a public road and the other on the site of a proposed public road. It was'held, under application of the above-quoted principles from the cases cited, that the commissioners were acting within their discretion as related to the first bridge; but that there was an abuse of discretion relatively to the second bridge, because the county did not have authority to levy a tax and contract to build a bridge that was not a part of an existing public road. In Dyer v. Martin, 132 Ga. 445, 450 (64 S. E. 475), a county having two farms proceeded to sell one of them. A judgment enjoining the commissioners from making the sale was reversed. It was said: “When the commissioners ordered the sale of the pauper farm, they exercised an administrative act; and the courts have no authority to inquire into the expediency of their action, unless it is made to appear that they either exceeded their powers under the law, or in the exercise of that power there was a manifest abuse of discretion. When their action within the scope of the powers conferred, on them by law is sought to be restrained by a complaining taxpayer, the question is, not whether the court or other taxpayers may have honestly differed with the commissioners as to the wisdom of their course, but whether that course of action is so palpably against the best interest of the county as to amount to an abuse of their discretion. Wé are aware that a judge of the superior court in passing upon an application for interlocutory injunction is also vested with a discretion, and this court has repeatedly held that his discretion upon the facts will not be disturbed unless it is abused. But it must also be borne in mind that a court of equity will not interfere with the administrative action of the governing officials of a county within the scope of the powers delegated to them by the law, unless the act complained of is arbitrary, and amounts to an abuse of discretion.” See also Odom Realty Co. v. Mayor &c. of Macon, 144 Ga. 96 (3) (86 S. E. 243); Tietjen v. Mayor &c. of Savannah, 161 Ga. 125 (6) (129 S. E. 653).

Each of the foregoing cases involved injunctive relief to prevent administrative action, while the case under consideration is a mandamus proceeding to compel administrative action. Both classes of proceedings involve the exercise of discretion upon the part of the administrative officers, and upon reason the foregoing principles are applicable whether the proceeding be of one kind or the other. Similar principles were applied in State ex rel. Matheny v. County Court, 47 W. Va. 672 (9) (35 S. E. 959), which was a mandamus proceeding to compel the administrative officers of the county to build a new court-house. The trial court rendered a judgment awarding a writ of peremptory mandamus compelling the county officials to build a new court-house. On review that judgment was reversed. Several reasons were staged in the opinion by Brannon, Judge, including among them: “It seems to me that the county court would not be bound to build a new court-house at Oceana, if for no other reason, while the relocation of the county-seat was not only in contemplation, but a petition had already been signed, ready to be presented to the county court, for a vote of the people on the removal of the county-seat. It seems to me that the county court had, under such particular circumstances, discretion to postpone for a reasonable time action on the matter.” These suggestions by Judge Brannon are replete with sound practical judgment which the administrative officers of the county were expected to exercise, and, owing to the similarity of the cases, are peculiarly applicable to the ease under consideration. If it should be attempted to avoid the force of the comparison with the above and several of the other foregoing decisions by the statement that each of them had reference to the building of “a new court-house” in instances where the county had an old court-house, the reply would be that the several decisions did not recognize any such distinction. Moreover such distinction would not give due weight to the fact, as alleged in the portion of the answer which was stricken, that the county authorities had provided a court-house by leasing and equipping a building that was suitable for the purpose. According to the portion of the answer that was stricken, it was a matter of serious consideration as to whether the newly created county-site at Arlington would not be removed at an election for such purpose. If in the face of such probability the respondents should build a new court-house in Arlington and the county seat should be removed as the result of the election, the court-house would no longer be serviceable and would probably result in great financial loss.

In the language of Mr. Justice Cobb in Commissioners v. Porter Manufacturing Co., supra, these respondents “must be relied upon to provide the public with proper buildings on the one hand, and to protect the taxpayer from useless and unnecessary burdens in regard to such matters on the other.” In the circumstances the respondents would seem to abuse their discretion if they should ignore the probability of a change in the county-site and proceed to build a court-house, in lieu of carrying out for the time being their policy of providing a court-house by lease of a building suitable for the purpose. It is insisted that § 400, quoted above, is mandatory as compelling the respondents to “build” a court-house “forthwith.” The statute should not be so construed, and was not so construed in any of the prior decisions of this court. In the case just cited it was construed as relating to a duty to “provide.” The word “provide” is used all the way through the opinion, the manner of providing being left to a sound discretion on the part of the commissioners. A construction of the statute as mandatory to “build” a court-house “forthwith” would in effect strike the words “when necessary” as they are used in the statute, which can only be done by legislative enactment. A construction of the statute that would make it mandatory upon the respondents to “build” a court-house would compel them to construct a court-house building, even though they might be able to obtain by purchase or lease or donation a building already constructed that would be the counterpart of such a court-house as they would build if the county did not have one. The Civil Code of 1910 was regularly adopted by'the legislature, and consequently § 400 thereof has the force of a statute. Central of Georgia Ry. Co. v. State, 104 Ga. 831 (31 S. E. 531, 42 L. R. A. 518); Lee v. Rogers, 151 Ga. 838 (108 S. E. 371); O’Berry v. State, 153 Ga. 644, 647 (113 S. E. 2). To that section of the code there is a marginal note: “Act 1796, Cobb, 182,” thus indicating the first legislation on the subject of the duty of county authorities to build or provide court-houses. The section of the code prescribed a duty “to erect or repair, when necessary, their respective court-houses and jails,” etc. This exact language as contained in § 400, supra, first appeared in the Code of 1861, § 469. It has since so appeared in each of the succeeding' codes. Those of 1861 and 1895 were each also regularly adopted by the legislature, giving the section cited the effect of a statute. The Code of 1895 was in efEect at the time of the decision in Commissioners v. Porter Manufacturing Co., supra; and consequently in rendering the opinion in that case this section must have been construed as a statute. The act of 1796 (Cobb’s Digest, 182) did not contain the words “when necessary.” The language employed in that act was, “shall cause to be erected and kept in good repair (or where the same shall be already built), shall maintain and keep in good repair, at the charge of such county, one good and convenient court-house,” etc. The language was changed when the first code was adopted, and the words “when necessary” were employed, and, as indicated above, have continued to be used in each of the succeeding codes, thus making a statutory change in the original law on the subject. This change was no doubt made in order that the statute might not be considered mandatory, and in order that the administrative officers of the county might have a discretion in the matter of building a court-house or providing one by other means. This was evidently in the mind of the court in the case of Commissioners v. Porter Manufacturing Co., supra, when Judge Cobb used the word “provide,” etc.

It is insisted that the County of Calhoun has no court-house; that it has been without one since 1923, "at least; that it will never have one if the mere circulation and signing of a petition by a sufficient number of voters to authorize an election upon the subject of removal is a good ground for not building a court-house at the new site; that the existence of such petition furnishes no valid reason for the failure of the defendants to build a court-house at Arlington, as required by law. This is not an accurate statement of the contentions of the respondents as set out in the portions of their answer which were stricken. The answer does not indicate that the respondents were trifling, as this insistence seems to indicate.

Judgment reversed.

All the Justices concur, except Beck, P. J., and Hines, J., who dissent.