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Touchton v. Echols County

Supreme Court of Georgia
Oct 11, 1954
84 S.E.2d 81 (Ga. 1954)





Mandamus. Before Judge Lilly. Echols Superior Court. June 17, 1954.

J. E. B. Stewart, for plaintiff in error.

John W. Langdale, contra.

1. The petition, as amended, stated a cause of action for mandamus, and the court did not err in overruling the demurrers of the respondent.

2. The amendment to the response, in so far as it related to the authority of the county commissioners and their acts prior to the judgment of validation, was insufficient to show any valid defense, since all these questions were settled by the judgment of validation.

( a) The amendment to the response, which sought to excuse inaction by the respondent because of an alleged illegal contract for the sale of the bonds, constituted no defense.

3. It is the duty of the clerk of the superior court to sign a validation certificate and attach the seal of his office to all county bonds regularly validated. The law contemplates, however, that a certification by the clerk shall speak the truth, and he may not be required by a mandamus, or otherwise, to certify an instrument that does not conform to the records in his office.


On March 3, 1954, the Board of Commissioners of Echols County filed a petition for mandamus against A. W. Touchton, as Clerk of the Superior Court of Echols County, and the petition, as later amended, in substance alleged: On August 6, 1953, a judgment was signed "validating and confirming courthouse bonds of Echols County, Georgia, in the amount of $80,000." The judgment of validation was affirmed by the Court of Appeals. Subsequently bonds were printed in form pursuant to the validation judgment, and on February 22, 1954, and on March 1, 1954, the clerk refused to sign the validation certificates, and refused to affix the seal as Clerk of the Superior Court of Echols County. The law requires that the bonds must have printed thereon the words, "Validated and confirmed by judgment of the Superior Court," signed by the Clerk of the Superior Court.

The plaintiffs prayed for rule nisi, requiring the clerk to show cause why he should not be required to sign the validation certificates; that, on the hearing, the mandamus be made absolute; and for process. A copy of the bonds was attached to the petition, and this copy contains the following statement: "This bond is one of a series of like tenor except as to numbers and dates of maturity, aggregating the principal amount of $80,000, issued for the purpose of constructing and furnishing a courthouse in said county."

The respondent demurred to the original petition and to the petition as amended. He filed a response (which was later amended), in which he denied some of the material allegations of the petition, and contended that he should not be required to sign the certificate because of matters alleged to invalidate the bonds.

On March 30, 1954, the matter came on to be heard in the Superior Court of Echols County before a jury, at which time the respondent's demurrers to the petition were overruled, and the amendment filed by the respondent was stricken on motion. After hearing evidence, the trial judge directed the jury to return a verdict in favor of the plaintiffs, and a judgment was entered requiring the respondent to sign the validation certificate and affix the seal as Clerk of the Superior Court of Echols County to bonds numbered 4 through 80, inclusive, "each in the amount of $1,000 principal, designated as `Courthouse Bonds.'" The respondent filed a motion for new trial, which was later amended, and was overruled.

In his bill of exceptions the respondent assigns error on the judgments overruling his demurrers, sustaining demurrers to a part of his response, striking on oral motion the amendment to his response, and overruling his motion for new trial.

The parties will be referred to in the opinion as they appeared in the trial court.

Only the third headnote requires any elaboration. Mandamus is a proper remedy for official inaction. Code § 64-101. It does not lie to control the action of an officer vested with a discretion, in the absence of a gross abuse of such discretion. City of Atlanta v. Wright, 119 Ga. 207 ( 45 S.E. 994); Wood v. Board of Education of Washington County, 137 Ga. 808 ( 74 S.E. 540); Richmond County v. Steed, 150 Ga. 229, 232 ( 103 S.E. 253); McGinty v. Gormley, 181 Ga. 644 ( 183 S.E. 804); Ward v. Drennon, 201 Ga. 605 ( 40 S.E.2d 549).

The plaintiffs contend that there is no statutory provision in this State with reference to the form of county bonds, and they insist that, under the provisions of Code § 87-306 (which requires the clerk of the superior court to sign a certificate on county bonds, "validated and confirmed by judgment of the superior court," specifying the date the judgment was rendered, and the court wherein it was rendered), it was the duty of the clerk to sign such certificate without reference to the contents of the bond. The plaintiffs are correct in their contention that our statutes do not require any particular form or any specific statement in bonds issued by any county of this State.

It is a well-established principle of law in this State, however, that Code sections related to the same subject matter shall be construed together. Pickett v. Bank of Ellijay, 182 Ga. 540 ( 186 S.E. 426); Merritt v. Jowers, 184 Ga. 762, 763 ( 193 S.E. 238); Winston v. State, 186 Ga. 573 (3) ( 198 S.E. 667, 118 A.L.R. 719); Fulenwider v. Fulenwider, 188 Ga. 856, 866 ( 5 S.E.2d 20); Newcomb v. Niskey's Lake, Inc., 190 Ga. 565 ( 10 S.E.2d 51). Code § 38-601 provides that the certificate of any public officer of this State, or of any county, shall give sufficient validity to any copy or transcript of any record pertaining to their respective offices to admit it in evidence. Code § 24-2715 (14), pertaining to the duties of clerks of the superior court, provides for a correct transcript, properly certified, of any minute, record, or file in the office of such clerk. This section of the Code does not contemplate that an incomplete record, or one that does not represent the whole truth, shall be certified by the clerk as being the record on file in his office.

In the present case the resolution of the county commissioners calling the bond election recited that the members of the board deemed it necessary "for the best interest of the county to construct and furnish a courthouse and jail," and that, in order to raise the necessary funds "for constructing and furnishing said courthouse and jail," it is necessary that bonds be issued. The petition of the solicitor-general to validate the bonds recited that a resolution calling for an election was duly passed "to provide funds for the purpose of constructing and furnishing a court-house and jail." The judgment of validation recited that bonds "as prayed for in petition" be validated. The bond form presented to the clerk of the superior court to be certified contained wording that the bond was one of a series "for the purpose of constructing and furnishing a courthouse in said county."

The clerk of the superior court, as custodian of all records pertaining to the validation proceedings, was called on by the commissioners to certify a bond that did not conform to the record. Under the rule that the validity of any process must be attacked in limine (in the beginning), ( Rucker v. Tabor, 126 Ga. 132, 54 S.E. 959), the clerk could not have signed the certificate and thereafter sought to invalidate his own act.

It is a general rule of law that "Statutory provisions authorizing the issuance of bonds will be more strictly construed in actions to prevent such issuance than in actions to prevent the payment of the bonds after they have been issued and negotiated." 20 C. J. S. 1195, § 269.

There is no statutory requirement in Georgia that any statement be made in the bond form as to the purposes for which the bonds were voted and validated. If the bond purports to state the purpose of the bond issue, it should conform to the record and correctly set forth the purposes of the issue. A certification by the clerk that the bonds had been voted solely for the construction and furnishing of a courthouse would not have conformed to the record. Clerks of the superior courts of this State are no less liable for the negligent performance of their official duties than for a failure to perform. Collins v. McDaniel, 66 Ga. 203.

This court has long required strict adherence in the application of bond funds to the purposes for which they were voted. See Dubberly v. Morris, 163 Ga. 144 ( 135 S.E. 718); Marks v. Richmond County, 165 Ga. 316 ( 140 S.E. 880); City of Fayetteville v. Huddleston, 165 Ga. 899 ( 142 S.E. 280); Allen v. City of Atlanta, 166 Ga. 28 ( 142 S.E. 262); City of Cornelia v. Wells, 181 Ga. 554 ( 183 S.E. 66); Board of Education of Paulding County v. Gray, 203 Ga. 583 ( 47 S.E.2d 508); Walker v. Wheeler, 210 Ga. 432 ( 80 S.E.2d 691).

There appears to be no legal or valid reason why the recitals in a bond, if any purpose is stated therein, should not conform to the intents and purposes of the bond issue. Since our law contemplates that clerks of the superior courts shall make correct certificates, the trial court erred in making the mandamus absolute, and in ordering the clerk to sign a certificate that was not in accord with the record.

Judgment reversed. All the Justices concur.

Summaries of

Touchton v. Echols County

Supreme Court of Georgia
Oct 11, 1954
84 S.E.2d 81 (Ga. 1954)
Case details for

Touchton v. Echols County

Case Details


Court:Supreme Court of Georgia

Date published: Oct 11, 1954


84 S.E.2d 81 (Ga. 1954)
84 S.E.2d 81

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