GA Code § 36-82-20 (2021)
2021 Georgia Code|Title 36 - Local Government|Chapter 82 - Bonds|Article 2 - Validation of Bonds|Part 1 - General Provisions|§ 36-82-20. Notice to District Attorney or Attorney General of Election or Resolution Favoring Issuance of Bonds or Refunding Bonds

  When any county, municipality, or political subdivision desiring to incur any bonded debt, as prescribed in Article IX, Section V, Paragraphs I and II of the Constitution of Georgia, holds an election or passes a resolution in accordance with the provisions of the Constitution and laws of this state controlling and regulating such elections or the passage of such resolutions and the returns of such election or resolution show prima facie that the election or resolution is in favor of the issuance of the bonds, the officer or officers of the county, municipality, or political subdivision charged by law with the duty of declaring the result of the election or resolution, within six months after so declaring the result of the election or of the passage of the resolution, shall notify the district attorney of the judicial circuit in which the county, municipality, or political subdivision is located, in writing, of the fact that an election was held or that a resolution was passed and that the election or resolution was in favor of the issuance of the bonds. The service of the notice shall be personal upon the district attorney; in the event that he is absent from the circuit, the notice shall be served in person upon the Attorney General.   It is expressly provided that when the governing body of any county, municipality, or political subdivision desiring to issue refunding bonds as provided by Article IX, Section V, Paragraph III of the Constitution of Georgia shall have adopted a resolution or ordinance authorizing the issuance of refunding bonds, the proper officer or officers of such county, municipality, or political subdivision, within six months after the adoption of such resolution or ordinance authorizing the issuance of such refunding bonds, shall notify the district attorney of the judicial circuit in which such county, municipality, or political subdivision is located, in writing, of the fact that the requirements pertaining to the issuance of general obligation refunding bonds have been met and that the issuance of such refunding bonds has been authorized by a resolution or ordinance duly adopted by the governing body of such county, municipality, or political subdivision and shall furnish the district attorney with a certified copy of such resolution or ordinance authorizing the issuance of such refunding bonds. The service of such notice shall be personal upon the district attorney; in the event that he is absent from the circuit, the notice shall be served in person upon the Attorney General.    (Ga. L. 1897, p. 82, § 1; Civil Code 1910, § 445; Ga. L. 1920, p. 63, § 1; Code 1933, § 87-301; Ga. L. 1946, p. 80, § 1; Ga. L. 1961, p. 168, § 1; Ga. L. 1983, p. 3, § 57; Ga. L. 1984, p. 1362, § 5.)   Editor's notes.   - Ga. L. 1984, p. 1362, § 8, not codified by the General Assembly, provided: "The provisions of this Act [which amended this Code section] shall be liberally construed to effect the purposes hereof, and insofar as the provisions of this Act may be inconsistent with the provisions of the Georgia Constitution under circumstances where the General Assembly has been granted the power by law to enlarge or restrict such provisions of the Constitution or the provisions of any law, including any general, local, or special Act of the General Assembly creating or activating any municipality, this Act shall control."   Law reviews.   - For article discussing the impact on bond issues of challenges to voting procedures, see 15 Ga. St. B. J. 15 (1978).   JUDICIAL DECISIONS    This section is not unconstitutional on the ground that it makes no provision for a trial by jury in reference to the matters for the investigation of which provision is therein made. Lippitt v. City of Albany, 131 Ga. 629, 63 S.E. 33 (1908).    This section is not unconstitutional on the grounds that the statute deprives citizens of property without due process of law by excluding further investigation as to validity of the bonds after judgment of confirmation and validation. Lippitt v. City of Albany, 131 Ga. 629, 63 S.E. 33 (1908).    This section does not violate Ga. Const. 1877, Art. VII, Sec. VII, Para. I (see now Ga. Const. 1983, Art. IX, Sec. V, Para. I), as there is no merit in the contention that the statute seeks to confer power to incur debts without the consent of two-thirds (now majority) of the voters by the authorizing of confirmation bonds which have not received the required vote. Lippitt v. City of Albany, 131 Ga. 629, 63 S.E. 33 (1908).   Limited unconstitutionality.    - Insofar as former Civil Code 1910, § 445 et seq. (see now O.C.G.A. § 36-82-20 et seq.), authorized the judge of the superior court to hear and determine the proceeding in a county other than that so fixed by the Constitution, the statute was invalid and must yield to the constitutional requirement on that subject. Ray v. City of Lavonia, 141 Ga. 626, 81 S.E. 884 (1914).   Constitutionality    - When the constitutionality of former Civil Code 1910, § 445 et seq. (see now O.C.G.A. § 36-82-20 et seq.) was not raised in a lower court, it was not considered in the Supreme Court. Edwards v. Town of Guyton, 140 Ga. 553, 79 S.E. 195 (1913).   Purpose of section.    - Purpose of this section is to provide a method by which it should be judicially investigated and determined whether the law, constitutional and statutory, has been complied with, so as to declare bonds referred to therein valid before their issuance. Lippitt v. City of Albany, 131 Ga. 629, 63 S.E. 33 (1908).    Provisions of this section are mandatory and must be strictly complied with. State v. Chatham County, 103 Ga. App. 390, 119 S.E.2d 120 (1961).   Validation upon substantial compliance.    - When the record discloses the fact that all the requirements in relation to notice and providing for an election to determine whether bonds should be issued were either literally or substantially complied with, judgment validating such bonds is affirmed. Wimberly v. County of Twiggs, 116 Ga. 50, 42 S.E. 478 (1902).   Absence of payment provision.    - It is not incumbent upon the court to inquire into the question as to whether provision for payment has been made in conformity with the requirements of the Constitution. The bonds are not to be issued until after they are validated. If nothing appears as to what provision is to be made with reference to payment of the bonds, it will be presumed that if provision has not already been made it will be made in accordance with the Constitution and laws. Wilkins v. City of Waynesboro, 116 Ga. 359, 42 S.E. 767 (1902); Oliver v. City of Elberton, 124 Ga. 64, 52 S.E. 15 (1905).   No validation if payment unlawful.    - If when the application is made to validate the issue of bonds it appears to the judge, either from the pleadings or otherwise, that the authorities of the municipality or county do not intend to make provision for the payment of the bonds in the manner required by the Constitution, the judge should not render a judgment validating the issue of bonds. Wilkins v. City of Waynesboro, 116 Ga. 359, 42 S.E. 767 (1902); Oliver v. City of Elberton, 124 Ga. 64, 52 S.E. 15 (1905).   Notice should be served as required by statute.    - Notice which this section requires to be given to the solicitor general (now district attorney) by the officers charged by law with the duty of declaring the result of an election held by any county, municipality, or division for the purpose of incurring any bonded indebtedness as therein provided, must be served upon the solicitor general (now district attorney) in the manner therein prescribed and within the time therein specified, and should notify the solicitor general (now district attorney) that an election for the issuance of bonds was held in the county, municipality, or division, and that the election was in favor of the issuance of such bonds; and it is not necessary to the validity of such notice that a copy of the resolution authorizing the election be incorporated in the notice or attached thereto. Rich v. Brinson Consol. Sch. Dist., 28 Ga. App. 530, 112 S.E. 164, cert. denied, 28 Ga. App. 819 (1922).   When notice properly served, bonds should be validated.    - When a notice of an election held for the purpose of incurring a bonded indebtedness was properly served upon the solicitor general (now district attorney) and gave to that officer the necessary notice required by law, and had attached thereto what purported to be a true and correct copy of the resolution passed by the proper authorities ordering the election, and which copy was referred to in the notice given to the solicitor general (now district attorney), it was not error, upon the hearing of an intervention to the proceeding to validate the bonds authorized by the election, for the trial judge, over the objection of the intervenors, to allow the officers giving the notice to amend the notice by withdrawing or striking the attached copy of the resolution authorizing the election and substituting in lieu thereof another copy, alleged to be a true and correct copy of the resolution authorizing the election. Rich v. Brinson Consol. Sch. Dist., 28 Ga. App. 530, 112 S.E. 164, cert. denied, 28 Ga. App. 819 (1922).   Single proceeding may be had to validate several series of bonds.    - When there are three series of bonds to be issued, each for a separate purpose, a single proceeding may be maintained to validate the bonds, the items being submitted separately. Sewell v. City of Tallapoosa, 145 Ga. 19, 88 S.E. 577 (1916).   Bonds may be valid notwithstanding refusal to validate.    - Judgment refusing to validate bonds not being based on the invalidity of the bonds is not the equivalent of a judgment declaring the bonds illegal. Bonds may be valid and binding notwithstanding a refusal of the court to confirm and validate. Tyson v. McIntosh County, 147 Ga. 233, 93 S.E. 407 (1917); Harrell v. Whigham, 147 Ga. 558, 94 S.E. 994 (1918).   Fact that judgment of validation void has no effect on bonds legally issued.    - Even if the proceedings to validate bonds were void, the sale of the bonds issued in conformity with former Civil Code 1910, § 441 et seq. (see O.C.G.A. §§ 36-82-2 et seq. and36-82-20), would not be enjoined merely because the judgment of validation was void. Durrence v. City of Statesboro, 147 Ga. 175, 93 S.E. 88 (1917); Tyson v. McIntosh County, 147 Ga. 233, 93 S.E. 407 (1917).   Extent of power of superior court.    - In a proceeding to validate bonds, it is within the power and jurisdiction of the superior court upon proper pleadings and sufficient evidence, to pass upon the validity of any votes cast in the election, and to eliminate such votes as are shown by the pleadings and the evidence to be illegal. King v. County Bd. of Educ., 174 Ga. 685, 164 S.E. 52 (1932).   Unlawful use of bonds.    - Fact that the city may intend to use the proceeds of the bonds in an unlawful manner, the bonds being voted for a lawful purpose, is not a ground for refusing to validate. Gracen v. Mayor of Savannah, 142 Ga. 141, 82 S.E. 453 (1914).   Refusal of validation no remedy for unlawful use of proceeds.    - If the public authorities should seek to use in an unlawful manner, or for an unlawful purpose, the proceeds of the bonds thus authorized, the remedy is not by a refusal to validate the bonds for the purpose for which the bonds were authorized. Lilly v. Crisp County Sch. Sys., 117 Ga. App. 868, 162 S.E.2d 456 (1968).   Validation not collusive because uncontested.    - Validation is not held to be collusive because the validation is uncontested for a complaining citizen has the right to become a party and contest the validation. Farmer v. Mayor of Thomson, 133 Ga. 94, 65 S.E. 180 (1909).    There is no law which would prevent any party to proceeding from introducing evidence which would establish existence of facts necessary to validation of bonds. Lilly v. Crisp County Sch. Sys., 117 Ga. App. 868, 162 S.E.2d 456 (1968).   Rights of taxpayers who failed to make themselves parties.    - When an election, held to determine whether municipal bonds should be issued, resulted in favor of such issuance, and the bonds were duly validated in accordance with these provisions, the citizens and taxpayers who could have made themselves parties to the proceedings to validate the bonds, but failed to do so, were concluded by the judgment rendered, and could not thereafter enjoin the collection of a tax to pay the interest and part of the principal falling due, on the ground that some of the bonds were for a purpose not authorized by the Constitution. Jenkins v. Mayor of Savannah, 165 Ga. 121, 139 S.E. 863 (1927).   Sufficiency of petition.    - Petition to validate bonds must set forth a strict compliance with the law by: service of the notice required by this section; the name of the political subdivision seeking to issue the bonds; the purpose for which the bonds are to be issued; the principal amount of the bonds; what interest the bonds are to bear, or the maximum per annum rate of interest specified in the election notice; and the amount of principal to be paid annually. Lilly v. Crisp County Sch. Sys., 117 Ga. App. 868, 162 S.E.2d 456 (1968).   Burden of proof in action to validate bonds.    - It was incumbent upon the petitioner in an action to validate bonds to make out a prima facie case by proving each of the substantial and material allegations set forth in former Civil Code 1910, §§ 441 and 445 (see now O.C.G.A. §§ 36-82-2 and36-82-20) as necessary allegations of the petition. When this was done the burden is cast upon the defendant, or upon a proper party as intervenor, to set up and establish any other fact which by aliunde proof would render the bond election invalid. King v. County Bd. of Educ., 42 Ga. App. 563, 156 S.E. 710 (1931), aff'd by operation of law, 174 Ga. 685, 164 S.E. 52 (1932).    Cited in Liner v. City of Rossville, 213 Ga. 756, 101 S.E.2d 753 (1958).   OPINIONS OF THE ATTORNEY GENERAL    Discussion of the hiring of private law firms by political subdivisions  for the purposes of validating and providing opinions as to the legality of state and municipal bonds. 1963-65 Op. Att'y Gen. p. 590.   RESEARCH REFERENCES   Am. Jur. 2d.   - 64 Am. Jur. 2d, Public Securities and Obligations, § 352.   C.J.S.   - 64A C.J.S., Municipal Corporations, § 2153 et seq.   ALR.    - Estoppel to deny validity of municipal bonds issued under an unconstitutional statute, 37 A.L.R. 1310.