Dancer v. Shingler , 147 Ga. 82 ( 1917 )

Evans, P. J.

(After stating the foregoing facts.)

1. The plaintiffs are proceeding against the officials of the county as composing the Board of Commissioners of Boads and Bevenues of Miller County. In the petition they were described as comprising the “Board of County Commissioners of Miller County.” A ground of demurrer raised the point that the action was improperly brought, because of a variance between the official title of the commissioners of roads and revenues, as defined in the act of their creation, and as alleged in the petition. The General Assembly devolved the management of the county affairs of Miller county upon a “Board of Commissioners of Boads and Bevenues.” Acts, 1905, p. 569. The description of the title of the county commissioners in the petition was slightly variant from their official title as designated in the act, and this variance was met by an amendment allowed over objection. There was no error in allowing this amendment. Civil Code (1910), § 5686; Commissioners of McIntosh County v. Aiken Canning Co., 123 Ga. 647 (51 S. E. 585).

2. It was further insisted at the hearing that an action to restrain the county commissioners from purchasing a farm to be devoted to the support of paupers and convicts of the county should have been brought against the county, and not against the officials in charge of county matters. The theory of the action is that the county has made no contract; that the conduct of the officials complained of was illegal; and the object is to enjoin the execution of an illegal contract by the officials of the county. It is not an open question in this State that a court of equity will, at the instance of citizens and taxpayers of a county, enjoin the authorities in charge of the affairs of such county from carrying into effect an unauthorized order or an illegal contract in the execution of which it will be necessary either to expend the money of the taxpayers, in the treasury of the county, or to incur illegal indebtedness by the county. Mitchell v. Lasseter, 114 Ga. 275 (40 S. E. 287); Henry v. Means, 137 Ga. 153 (72 S. E. 1021). The action was properly brought against the officials, and the county is not a necessary party. See Hamby & Toomer v. Georgia Iron & Coal Co., 127 Ga. 792 (56 S. E. 1033).

3. Upon a recommendation of the grand jury of a county, the ordinary, or the board of commissioners in those counties where commissioners supervise the county' affairs, has power and authority to purchase a house and farm, upon which farm they may require all paupers to labor who are not from old age and disease unable to work; and they have authority to levy and collect a tax for the purpose of purchasing such farm. Civil Code (1910), §§ 541, 544. If the investment can be made with funds on hand, or from taxes collected in the year in which the farm is purchased, the county authorities may proceed to carry out the recommendation of the grand jury. But the power to purchase a farm for the paupers is not. an authority to incur a debt in its purchase. The constitution forbids a county to incur any debt except for a temporary loan or loans to supply casual deficiencies of revenue, not to exceed one fifth of one per centum of the assessed value of taxable property therein, without the assent of two thirds of the qualified voters thereof at an election for that purpose, to be held as may be prescribed by law. Civil Code (1910), § 6563, A contract by the governing officials of a county, to purchase property for* the county and to pay therefor with interest-bearing warrants falling due for several years in the future, is a debt within the meaning of the constitutional prohibition. Renfroe v. City of Atlanta, 140 Ga. 81 (78 S. E. 449, 45 L. E. A. (N. S.) 1173). It is imma^ terial whether the proposed purchase be an advantageous plan for the support of the paupers and for taking care of the convicts engaged in building the roads of Miller County; the organic law condemns it, and county officials have no authority to incur a debt except in the manner pointed out by law. The effect of the contract of purchase, payable several years in the future, was to incur a debt, and the contract of purchase was illegal. The court did not err in granting the temporary injunction complained of.

Judgment affirmed.

All the Justices concur.’