Opinion
19070.
ARGUED SEPTEMBER 13, 1955.
DECIDED OCTOBER 13, 1955.
Petition for injunction. Before Judge Thomas. Camden Superior Court. July 1, 1955.
Gowen, Conyers, Fending Dickey, for plaintiffs in error.
Highsmith Highsmith, E. Way Highsmith, contra.
The allegations of the present petition relate to questions that could properly be for decision in the event a suit should be instituted seeking to prevent construction of the toll road. This court can not say, as a matter of law, that the county could not under any circumstances or state of facts, be authorized to file a suit against the Ocean Highway and Port Authority, a public corporation of the State of Florida, or to expend county funds for such purposes. If the proposed toll road interfered with roads or property the responsibility of which rests in the county authorities, would not the county have the right to test the constitutionality of the act under which it was sought to take, condemn, or otherwise interfere with county property? Without knowing what the county might allege in its suit, it cannot be determined that the county would be proceeding illegally. It follows that the allegations of the petition as amended failed to set forth a cause of action for the relief sought, and that the trial court did not err in dismissing the action on oral motion by the defendants.
Judgment affirmed. All the Justices concur.
ARGUED SEPTEMBER 13, 1955 — DECIDED OCTOBER 13, 1955.
Edison Casey and others as citizens and taxpayers filed in Camden Superior Court, against J. D. Proctor, Thomas G. Casey, C. L. McCarthy, Jr., and K. E. Kelly (who together with the petitioner Edison Casey constitute the Board of Commissioners of Roads and Revenue for Camden County), and J. Edwin Godley, the clerk of said board, a petition which as amended alleged substantially the following: Pursuant to an act (Ga. L. 1951, p. 149, as amended by Ga. L. 1952, p. 397), the State Highway Department has entered into an agreement with the Ocean Highway and Port Authority, a public corporation of the State of Florida, for the construction of a toll road through a described section of Camden County. On June 21, 1955, the defendants, as a majority of the Board of Commissioners passed a resolution providing that, "in order to protect the interest of Camden County, [said board] employ Highsmith and Highsmith as legal counsel on any matters that might arise concerning the proposed toll road through Camden County and to instruct the firm of Highsmith and Highsmith to obstruct the construction of the proposed toll road in any legal manner at their disposal." The petitioner, Edison Casey, voted against the resolution. The defendants intend to use public funds of Camden County to pay counsel for their services. Unless enjoined, the majority of the members of the board of commissioners will order its clerk to pay, and acting under such order the clerk will pay, said counsel from the public funds of Camden County. Robert Harrison is the duly elected and constituted county attorney for Camden County, and was discharging the duties of such office at the time of the adoption of the resolution. The decision to construct said road has been made heretofore by the General Assembly of Georgia and by the State Highway Department, and the defendants, as a majority of the board of commissioners, have no right to authorize and direct the expenditure of public funds to obstruct the construction of the toll road, or to authorize counsel to proceed in the name of Camden County in any legal action designed to prevent the construction of the road. The petitioners have no adequate remedy at law. Highsmith and Highsmith, using the resolution as authority, intend as attorneys for Camden County, to institute suits in the name of Camden County, designed to "obstruct the construction of the proposed toll road" without securing any other authority therefor from the county commissioners. The resolution constitutes an unlawful delegation of power belonging by law to the county commissioners. In the event the court holds that public funds can not be used for the purpose set forth in the resolution, the defendants, other than the clerk of the commissioners, have determined to pay the cost of taking the action set forth in the resolution from their own funds, and none of the defendants have any right to use the name of Camden County to obstruct the construction of the toll road. The prayers are: that process issue; that the court enjoin the defendants from employing counsel for the purposes set forth in the resolution, and from expending public funds to pay counsel or using public funds to obstruct the construction of the road, and from authorizing any attorneys to proceed in the name of Camden County in any action designed to obstruct or prevent the construction of such road; and for general relief.
When the case, upon agreement of counsel, came on to be heard, the trial court sustained an oral motion by the defendants and dismissed the action, to which ruling the petitioners excepted.