Sammons v. Sturgis , 145 Ga. 663 ( 1916 )

Beck, J.

(After stating the foregoing facts.)

1. Touching the subject of the mode of contracting by county authorities having charge of the roads and revenues and the public buildings of a county, it is provided in the Code of 1910, § 387, that such authorities shall cause the same to be built or repaired by letting out the contract therefor to the lowest bidder at public outcry, after advertising the letting as provided in section 388, which provides, as to the notice that should be given of the letting of a contract, that "when the work to be done is likely to amount to less than $5,000.00, the noticé shall be published once a week for four weeks, and by posting notice for the same period.” In the present case the contract was let out by the county authorities on the 35th day of September, 1915, under the following notice:

“Legal Notice. Bids Wanted.

“Georgia, Glascock County. Sealed proposals will be received by H. G. Sammons, county commissioner of said county, at the office of the county commissioner of said county, at 13 o’clock noon (Central time) on Saturday, September 35th, 1915, for furnishing brick, lime, cement and mortar, coloring, and labor for building the walls for a new court-house for said county, according to plans and specifications now on file for inspection in the oflice of county commissioner of said county, at Gibson, Georgia. The right to reject any and all bids is reserved by said county commissioner. This 30th day of August, 1915.

“H. G. Sammons, County Commissioner of Glascock County, Georgia.”

This notice was published only three times. It was first published on September 8, again on September 15, and then on September 22, 1915; and sealed proposals were opened and the contract made on September 25, 1915. On September 1, 1915, prior to the publication of the notice of September 8th, there was published a notice substantially the same as that which we have quoted, except that it stated that the proposals would be received “at 12 o’clock noon (Central time) on Saturday, October 25, 1915.” This was a substantial variance between the notice as first published and that contained in the last three publications; and it was not a substantial compliance with the law in reference to the publication of notices of this character. The notice as first published, considered as one advertising for sealed bids to be submitted on September 25, 1915, was fatally defective. It is highly important to the public and to taxpayers of a county that the statutes which we have referred to should be complied with in the matter of making these advertisements; and this defective notice and advertisement as published was not a substantial compliance with the statute. And that being true, the contract let, after having failed to give the notice called for by the statute, was illegal and void; and the court below did not err in so holding, and in granting the restraining order as to the carrying out of this contract by the bidders and by the county authorities. It further follows, that, having held that the court-house could not be built under the contract, there was no error in enjoining the use of convict labor in erecting the contemplated building. Whether or not convict labor could be employed in erecting a court-house is not now decided.

But the court should not, under the evidence, have enjoined the collection of the tax levied for the purpose of raising a fund wherewith to build a court-house. If a court-house was necessary, the commissioner of roads and revenues had the authority to levy a tax for the purpose of building one. Such matters are primarily in the discretion of the county authorities; and there is nothing in the evidence to show that they abused their discretion in levying a tax for the purpose of building the proposed court-house. Dyer v. Erwin, 106 Ga. 845 (33 S. E. 63); Dyer v. Martin, 132 Ga. 445 (64 S. E. 475).

2. The injunction granted, which in terms restrained the commissioner and public authorities from locating the place for housing the convicts, road- machinery, etc., on the tract of land purchased by the commissioner, was not authorized by the pleadings in this case. The pleadings merely complain that to locate a convict camp on this land would be a perpetual nuisance to petitioners and to the citizens of Glascock County and the town of Gibson; that it would interfere with the court sessions and with the administration of justice, and would be and remain a nuisance to the court and to petitioners and to the citizens of the town and county, and a nuisance which would be irreparable in damages, even if the county were liable in damages for maintaining a nuisance; that it could only be abated, and therefore may be enjoined, and that should it become a private nuisance, as it necessarily would without water or other sanitary arrangements and protection, the citizens of the town of Gibson or the city authorities might, and no doubt would, have it abated at great and irreparable damage to the county and petitioners. There is no attempt to show in the pleadings that there would be any special damages to petitioners; and even where it is alleged that it might become á private nuisance, and that it necessarily would become such without water or other sanitary arrangement for protection, it is alleged that the city authorities no doubt would have it abated. If a public nuisance causes special damage to an individual, in which the public does not participate, such special damage gives a right of action to the individual. Civil Code, § 4455. But there is no allegation, even in the most general terms, of any special damage to any individual among the plaintiffs, in which the public would not participate. A court of equity will not grant an injunction at the instance of one or more private citizens to enjoin a public nuisance, no private injury actually accruing or threatened being alleged. Where the nuisance is purely a public one, it can only be restrained by the public on information filed by a public officer. Coast Line Railroad Co. v. Cohen, 50 Ga. 451. "Private citizens can not generally interfere to have a public nuisance enjoined, but the. petition must proceed for the public on information filed by the solicitor-general of the circuit.” Civil Code, § 5330.

3. In the petition a somewhat lengthy history of the way in which the town of Gibson acquired the "public square” in that town is given. It appears, however, to be given merely as a part of the history of the town; for the petitioners distinctly allege that they do not ask any injunction to restrain the county authorities from selling the land constituting the public square, and they do not seek an adjudication concerning the title thereto. They say in the petition that if it should become necessary to prevent the sale of the public square, they will file a separate suit. We are of the opinion, therefore, that the court was not authorized, under these pleadings, to adjudicate that the court-house square or public square was not an asset of the county and could not be sold.

4. The court properly enjoined the payment of the warrant given to W. D. Allen in payment of a part of the purchase-price of the lot upon which the contemplated court-house is to be built, as this was made payable out of the public-road fund; whereas such fund is to be used and expended only for the purposes set forth in § 696 of the Civil Code, relating to the county tax for roads, the purchase of a lot upon which to build a court-house not being one of the purposes specified in that section.

5. There was evidence authorizing the court to find that the issuance of these warrants was an attempt to create a debt of the county, without being authorized by a vote of the electors of the county. The mere fact that these warrants were made payable on January 1, 1916, that is, 'in the year subsequent to their issuance, does not necessarily show the creation of a debt; but there was evidence authorizing the court to find that the issuance of these warrants, which are payable out of the general fund, could not be discharged out of the money for the raising of which provision had been made by the tax levy for the year 1915, that is, the year in which they were issued; and that all the money coming in from the tax levy for the year 1915, not including the levy for the raising of money for the building of the court-house, would be exhausted by other legal demands against the county, and there would not be sufficient money provided during the year 1915 to discharge these warrants now under consideration. Consequently the court did not err in enjoining the payment of these warrants by the treasurer of the county.

Judgment affirmed in part, and reversed in part.

All tHe Justices concur.