STATE OF GEORGIA v. CHATHAM COUNTY

The petition of the State of Georgia, filed in its behalf by the Solicitor-General of the Eastern Judicial Circuit on October 13, 1960, in the Superior Court of Chatham County, for the confirmation and validation of certain described serial bonds in the amount of $1,000,000, alleged the following material facts: On November 4, 1952, a proposed amendment (Ga. L. 1951, p. 833) to Art. VII, Sec. VII, Par. I of the Constitution of Georgia ( Code § 2-6001) was voted on and ratified by the qualified voters of this State in the general election held on that date. Section 1 of said amendment provided: "Be it enacted by the General Assembly of the State of Georgia, and it is hereby enacted by authority of the same, that Article 7, Section 7, Paragraph 1 of the Constitution of the State of Georgia incorporated in the Code of Georgia of 1933 as Section 2-6001, which has heretofore been amended, shall be further amended by adding at the end thereof a new paragraph to be appropriately numbered and worded as follows; to wit: And except that the County of Chatham in addition to the bonded indebtedness heretofore authorized by the Constitution and laws of Georgia, may issue serial bonds not to exceed one million dollars ($1,000,000.00) for the purpose of expanding the same or any part thereof for the establishment and the construction of an additional new road to Savannah Beach, Tybee Island, Georgia, along the old right-of-way of the Central of Georgia Railway Company or at some other location which in the judgment of the county commissioners they may deem best suited for the purpose. It being the intent of this amendment that the proceeds of said issue of bonds shall be used by the county commissioners to supplement in such amounts as may be necessary, the proceeds derived from the issue of any revenue certificates which may be issued in the event the county commissioners should determine to make said road a toll road. The Board of County Commissioners and Ex Officio Judges of Chatham County shall provide for the assessment and collection of an annual tax sufficient in amount to pay the principal and interest of said serial bonds as they become due. Said serial bonds when issued shall mature in twenty annual equal amounts beginning ten years from the date of issuance and maturing each year thereafter for a period of twenty years. Said serial bonds shall be issued and validated when authorized by a resolution adopted by the affirmative vote of a majority of the membership of the Board of County Commissioners and Ex Officio Judges of Chatham County who are also authorized by a majority vote to fix the rate of interest of said bonds, the date of issuance and all other details incident to the issue and sale of said bonds."

Pursuant to this amendment the Commissioners of Chatham County and Ex Officio Judges thereof on October 6, 1960, passed a resolution authorizing the issuance of said bonds in the amount of $1,000,000 to be known as "Chatham County Tybee Road Bonds for 1960." On October 13, 1960, the commissioners personally notified the solicitor-general to institute the instant proceedings for the purpose of confirming and validating said bonds.

The petition further alleged that the proceeds from the sale of said bonds would be used for the purposes of "obtaining rights-of-way necessary for the widening and/or constructing and building of roads, the building of new roads, the opening, grading, repaving, reconstructing and resurfacing of roads and for purchasing, condemning and/or acquiring of rights-of-way and improvements, the building of bridges and approaches thereto, and all things necessary and/or useful in connection with the roadway known as President Street Extension for Savannah Beach Expressway and Spur to Savannah Beach, Tybee Island, Georgia."

The trial court on October 13, 1960, allowed the petition filed and ordered the County of Chatham to show cause on October 21, 1960, why said bonds should not be confirmed and validated as prayed. Chatham County filed its answer admitting the allegations of the petition.

On the date set for the hearing S. L. Peters, as a citizen and taxpayer of Chatham County, acting pursuant to the provisions of Code Ann. § 87-304, filed an intervention in the present proceedings in which he objected to the validation of the bonds on two grounds: (1) that the laws of this State require that the governing body of Chatham County should have commenced the proceedings necessary to confirm and validate the bonds within six months of the declaration of the results of the election in 1952 and that said proceedings were not commenced until October 6, 1960; and (2) that the voters at the general election held on November 4, 1952, voted "For ratification of amendment to Article 7, Section 7, Paragraph 1, of the Constitution authorizing the County of Chatham to issue serial bonds for the purpose of establishment and construction of an additional new road to Savannah Beach, Tybee Island, Georgia," while the petition shows that the funds will be used to construct a roadway to Whitemarsh Island, Georgia.

The judgment under review is the order of the court of October 31, 1960, sustaining the objections of the intervenor and granting his motion to dismiss the petition.

JORDAN, Judge.

1. Code Ann. § 87-301 provides: "When any county, municipality, or political division, desiring to incur any bonded debt, as prescribed in Paragraphs I, II, and III of Section VII, Article VII of the Constitution (§§ 2-6001 to 2-6003) shall hold an election in accordance with the provisions of the Constitution and laws of this State controlling and regulating such elections, and the returns of such election shall show prima facie that such election is in favor of the issuance of said bonds, the officer or officers of such county, municipality, or political division charged by law with the duty of declaring the result of said election, shall, within six months after so declaring the result of said election, notify the solicitor-general of the judicial circuit in which such county, municipality, or political division shall be, in writing, of the fact that an election was held and that the election was in favor of the issuance of such bonds. The service of such notice shall be personal upon the solicitor-general, but in the event he is absent from the circuit, it shall be served in person upon the Attorney-General." It was the contention of the intervenor that the Superior Court of Chatham County did not have jurisdiction to validate the bonds in question since the mandatory provisions of this section had not been complied with in that the required statutory notice of the results of the election of 1952 had not been given to the solicitor-general by the proper authorities within six months of the election. While the provisions of this section are mandatory and must be strictly complied with (see Roff v. Town of Calhoun, 110 Ga. 806, 36 S.E. 214), the fallacy in the intervenor's contention is simply this: the election of 1952 was not a bond election to incur bonded indebtedness under Art. VII, Sec. VII, Par. I of the Constitution ( Code § 2-6001) but was an election for the ratification of an amendment to this provision of the Constitution. The amendment thus became a part of the Constitution itself and expressly authorized the Commissioners of Chatham County to issue the bonds in question by a resolution of that body. The amendment did not purport to limit the time in which the authority thus granted could be exercised by the commissioners and we know of nothing which would prevent the commissioners from waiting eight years as was done to authorize the issuance of the bonds in question. Accordingly, since the petition alleged that the resolution of the commissioners authorizing the issuance of the bonds was passed on October 6, 1960, and that personal notice of same was given to the solicitor-general on October 13, 1960, and the instant proceedings were instituted on that date, the trial court erred in its order of October 31, 1960, in ruling that the court was without jurisdiction in the matter because of the alleged non-compliance with the terms of Code Ann. § 87-301.

2. Since the allegations of the petition disclose that the proceeds from the sale of the bonds would be used for the purpose of constructing the roadway known as President Street Extension for Savannah Beach Expressway and Spur to Savannah Beach, Tybee Island, Georgia; and since the exhibits attached to the petition disclose that the said President Street Extension would constitute 3.2 miles of a new road, the remainder of which would be constructed by the State Highway Department of Georgia and would connect with the existing road to Tybee Island, known as Ga. 26 and U.S. 80, at a point approximately 500 yards west of the Bull River Bridge, the trial court erred in ruling that the pleadings show that the proceeds from the sale of the bonds would not be used for the purpose authorized in the amendment to Art. VII, Sec. VII, Par. I of the Constitution which was ratified in the election of 1952. See Gracen v. Mayor c. of Savannah, 142 Ga. 141 (3) ( 82 S.E. 453).

Accordingly, the judgment of the court below, granting the intervenor's motion to dismiss the proceedings and dismissing the same, must be reversed.

Judgment reversed. Townsend, P. J., Carlisle and Frankum, JJ., concur.