Town of McIntyre v. Baldwin , 61 Ga. App. 489 ( 1939 )

ON MOTION FOR REHEARING. In its motion for rehearing movant contends for the first time that the demurrer should not have been sustained for the reason that the act of March 23, 1939, § 4 (Ga. Laws, 1939, pp. 177, 179), as follows: "That all proceedings, which have been taken prior to the date this act takes effect, for the purpose of financing or aiding in the financing of any work, undertaking or project by any public body to which any loan or grant is under contract to be made by the United States of America through the Federal Emergency Administrator of Public Works for the purpose of financing or aiding in the financing of such work, undertaking or project, including all proceedings for the authorization and issuance of bonds, and for the sale, execution and delivery thereof, are hereby validated, ratified, approved and confirmed, notwithstanding any lack of power (other than constitutional) of such public body or the governing body or commission or officers thereof, to authorize and issue such bonds, or to sell, execute or deliver the same, and notwithstanding any defects or irregularities (other than constitutional) in such proceedings, and notwithstanding that such governing body may not have been elected, appointed or qualified for the offices they purported to hold," is conclusive of the question as to the right of the Town of McIntyre to issue bonds; and that if, under the charter, no such power was conferred, it was supplied by this statute, and the issuance of the bonds involved in the present proceedings was accordingly authorized.

It nowhere appears in the petition for the validating of these bonds that they were sought to be issued in furtherance of a contract made with the United States Government for assistance in making such public improvements. We decided the case on the record before us. It does appear in the record in the main bill, according to the answer filed by the Town of McIntyre to the petition for validation filed by the solicitor-general, that, in a notice for the holding of the election, it had stated that the United States Government had offered a grant of 45 per cent. of the cost of a waterworks system. In the petition there was no allegation at all in reference to Federal assistance or contracts therefor.

We adhere to our opinion heretofore rendered with the proviso that the plaintiff, if he so desires, may amend his petition before the judgment of this court is made the judgment of the court below and show, if he can, that the provisions of the act of 1939 are applicable to the proceedings for validation, which of course will open the matter again for demurrer. The judgment heretofore rendered is qualified to this extent. Nothing is decided with reference to the issues raised in the main bill of exceptions.

Rehearing denied. Broyles, C. J.,concurs.