GA Code § 36-82-21 (2021)
2021 Georgia Code|Title 36 - Local Government|Chapter 82 - Bonds|Article 2 - Validation of Bonds|Part 1 - General Provisions|§ 36-82-21. Petition to Superior Court to Show Cause; Service of Petition and Order; Answers

  Within 20 days from the date of the service upon the district attorney or the Attorney General of notice of the fact that an election was held or a resolution passed and that the election or resolution was in favor of the issuance of the bonds, the district attorney or the Attorney General shall prepare and file a petition in the office of the clerk of the superior court of the county in which the election was held or the resolution was passed, directed to the superior court of the county, in the name of the state, and against the county, municipality, or political subdivision desiring to issue bonds under the election or resolution. The petition shall set forth the service of the notice, the name of the county, municipality, or political subdivision seeking to issue the bonds, the principal amount of the bonds to be issued, the purpose for which the bonds are issued, the interest rate or rates which the bonds are to bear, and the amount of principal to be paid in each year during the life of the bonds and shall state that the election or resolution is prima facie in favor of the issuance of the bonds. The petition, in lieu of specifying the rate or rates of interest which the bonds are to bear, may set forth the wording which was used with respect to interest in the notice which was published calling the election to authorize the issuance of the bonds. The district attorney or the Attorney General shall obtain, from the judge of the court, an order requiring the county, municipality, or political subdivision, by its proper officers, to appear at such time and place, either in term or at chambers, within 20 days from the filing of the petition, as the judge of the court may direct, and to show cause, if any exists, why the bonds should not be confirmed and validated. The petition and order shall be served in the manner provided by law for the service of petitions upon counties, municipalities, or political subdivisions. The officers of the county, municipality, or political subdivision shall make sworn answers to such petition at or before the date set in the order for the hearing.   Within 20 days from the date of the service upon the district attorney or the Attorney General of notice of the fact that a resolution or ordinance was adopted by the governing body of the county, municipality, or other political subdivision authorizing the issuance of refunding bonds, the district attorney or the Attorney General shall prepare and file a petition in the office of the clerk of the superior court of the county in which the county, municipality, or other political subdivision desiring to issue refunding bonds is located, directed to the superior court of the county, in the name of the state, and against the county, municipality, or political subdivision desiring to issue refunding bonds under the resolution or ordinance. The petition shall set forth the service of the notice, the name of the county, municipality, or political subdivision seeking to issue the refunding bonds, the maximum principal amount of the refunding bonds to be issued, the interest rate or rates which the bonds are to bear, and also setting forth the principal amount of outstanding bonded indebtedness to be refunded, the amount of principal to be paid in each year over the remaining life of the bonds to be refunded, the interest rate or rates per annum said outstanding bonds which are to be refunded bear and a certified copy of the resolution or ordinance so adopted authorizing the issuance of the refunding bonds shall be attached to the petition and made a part thereof. The petition, in lieu of specifying the rate or rates of interest which the refunding bonds are to bear, may state that the refunding bonds when issued will bear interest at a rate or rates not exceeding a maximum rate per annum. The district attorney or the Attorney General shall obtain, from the judge of the court, an order requiring the county, municipality, or political subdivision, by its proper officers, to appear at such time and place, either in term or at chambers, within 20 days from the filing of the petition, as the judge of the court may direct, and to show cause, if any exists, why the refunding bonds should not be confirmed and validated. The petition and order shall be served in the manner provided by law for the service of petitions upon counties, municipalities, or political subdivisions. The officers of the county, municipality, or political subdivision shall make sworn answers to such petition at or before the date set in the order for the hearing.    (Ga. L. 1897, p. 82, § 2; Civil Code 1910, § 446; Ga. L. 1920, p. 63, § 2; Code 1933, § 87-302; Ga. L. 1960, p. 1034, § 1; Ga. L. 1961, p. 168, § 2; Ga. L. 1984, p. 1362, § 6.)   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."   JUDICIAL DECISIONS   Provision for time of hearing directory.    - Provision of this section, which prescribes the time within which the judge of the superior court shall fix the hearing on the petition to validate an issue of municipal bonds, and the time within which the judge shall hear and determine the same is directory only. Spencer v. City of Columbus, 150 Ga. 312, 103 S.E. 464 (1920); Perkins v. Norristown (42) Sch. Dist., 151 Ga. 414, 107 S.E. 42 (1921).   Provision as to time of filing petition mandatory.    - Provision requiring the solicitor general (now district attorney) to file the petition within 20 days from date of service upon the solicitor general (now district attorney) was not merely directory, but mandatory. Roff v. Town of Calhoun, 110 Ga. 806, 36 S.E. 214 (1900).   No right to file petition after 20 days.    - Solicitor general (now district attorney) has no authority, after the expiration of 20 days from the date of the service upon the solicitor general (now district attorney) of the notice provided for by Ga. L. 1987, p. 82, § 1 (see now O.C.G.A. § 36-82-20), relating to "the confirming and validating of" bonds, to file the petition prescribed by Ga. L. 1987, p. 82, § 2 (see now O.C.G.A. § 36-82-21), and such a petition, if filed too late, cannot be made the basis of any valid judicial action. Roff v. Town of Calhoun, 110 Ga. 806, 36 S.E. 214 (1900).   Sufficiency of petition.    - It is necessary, of course, to state the facts, and this should be done with sufficient particularity to meet the requirements of good pleading. A petition which fails to show, except by a bare conclusion, that the election resulted prima facie in favor of the issuance of the bonds is fatally defective and subject to general demurrer (now motion to dismiss). Edwards v. City of Clarkesville, 35 Ga. App. 306, 133 S.E. 45 (1926).   Necessary elements in petition.    - Petition to validate bonds must show that an election was held pursuant to the provisions of Article 1 of this chapter and that the result of the election was prima facie in favor of issuance of the bonds. Lilly v. Crisp County Sch. Sys., 117 Ga. App. 868, 162 S.E.2d 456 (1968).   Unnecessary allegations.    - Petition need not set out any details relating to the required number of voters. Spencer v. City of Clarkesville, 129 Ga. 627, 59 S.E. 274 (1907); Davis v. Orland Consol. Sch. Dist., 152 Ga. 76, 108 S.E. 466 (1921).    This section does not require that petition should allege that amount of bonds is within constitutional limitation as to the debt to be incurred by a municipal corporation or political division. Such matter, however, may be urged by an intervenor on the trial. If the intervenor should urge such matter, the burden is upon the intervenor to plead and prove the matter. Sewell v. City of Tallapoosa, 145 Ga. 19, 88 S.E. 577 (1916).    It is not necessary that a list of voters and tally sheets of an election should be set out in or attached to a petition. Stephens v. School Dist. No. 3, 154 Ga. 275, 114 S.E. 197 (1922).    Law does not require an allegation as to publication of the notice to the voters, or as to the furnishing of the list of the registered voters (it being sufficient merely to show the number of such voters), or as to the city's indebtedness not exceeding the limit allowed by the Constitution. Edwards v. City of Clarkesville, 35 Ga. App. 306, 133 S.E. 45 (1926).    Proceeding, brought by a solicitor general (now district attorney) to validate bonds to be issued by a school district in a county of this state, need only allege facts to meet the requirements of this section and it is therefore unnecessary that the solicitor general (now district attorney) allege that the school district was one "in which a local tax is now or may hereafter be levied for school purposes," or is a school district "in a county now levying a local tax." These matters are matters of defense to the validation proceeding. Hardrick v. State, 53 Ga. App. 299, 185 S.E. 577 (1936).    Misnomer of the municipality in petition to validate bonds does not vitiate judgment of confirmation, when it appears that the officers of the municipality acknowledged service of the petition and answered the petition under oath in its true corporate name, and the judgment of validation also sets forth the proper corporate name of the municipality. Rhodes v. City of Louisville, 121 Ga. 551, 49 S.E. 681 (1904).   Omission of statement of principal and interest from petition.    - When the petition under this section omitted to state how much principal and interest was to be paid annually and when the bonds were to be paid in full, but no objection was made in that proceeding to the sufficiency of the petition, and attached to the answer of the city as an exhibit was a copy of the ordinance providing for the issuance of the bonds, which showed the facts referred to above, so that it appeared from the record that provision on that subject was made, after judgment of validation the omission of the allegation above mentioned from the petition of the solicitor general (now district attorney) will not serve to render the entire proceeding void, or to authorize an injunction to prevent the payment of the bonds. Thomas v. City of Blakely, 141 Ga. 488, 81 S.E. 218 (1914).   Issuance of order prior to filing petition.    - Provisions of this section are satisfied if the notice is served and the petition is filed and the order nisi obtained within the several times specified, notwithstanding the issuance of the order nisi may have preceded the filing of the petition in the office of the clerk of the superior court. Durrence v. City of Statesboro, 147 Ga. 175, 93 S.E. 88 (1917).   Validation within jurisdiction of superior court.    - Proceeding to validate bonds embraces justiciable questions within the jurisdiction of the superior court. Lilly v. Crisp County Sch. Sys., 117 Ga. App. 868, 162 S.E.2d 456 (1968).   Venue in county in which bonds are situated.    - Venue of a statutory proceeding to validate municipal bonds is in the county in which the bonds are situated. Ray v. City of Lavonia, 141 Ga. 626, 81 S.E. 884 (1914); Murray v. City of Tifton, 143 Ga. 301, 84 S.E. 967 (1915).   Fixing of hearing in another county of circuit.    - Under the provision of this section, touching the validation of bonds, that, on due application, the judge of the superior court shall require the proper officers to show cause, "at such time and place . . . as the judge of said court may direct, why said bonds should not be confirmed and validated," it was held that the fixing, by the judge, of the place for the hearing in another county of the judicial circuit than that where the election was held was not beyond the terms of the Act. Farmer v. Mayor of Thomson, 133 Ga. 94, 65 S.E. 180 (1909).   Hearing on day not named in notice.    - When, prior to the hearing of a proceeding for the validation of county bonds under the provisions of this section the required statutory publication giving notice of the date of hearing has been duly made, the fact that the hearing was had before the judge on a day other than that named in the published notice does not render the judgment illegal, when it further appears that the case was regularly continued by the court from the day named in the publication to the day on which the hearing was had. Wimberly v. County of Twiggs, 116 Ga. 50, 42 S.E. 478 (1902); Moody v. Board of Comm'rs, 29 Ga. App. 21, 113 S.E. 103 (1922).   By whom notice given.    - Petition was not subject to demurrer (now motion to dismiss) because the notice to the solicitor general (now district attorney) was not given by the proper officer. This notice must be given by the officer or officers charged with declaring the result of the election. Stephens v. School Dist. No. 3, 154 Ga. 275, 114 S.E. 197 (1922).   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, §§ 445 and 446 (see now O.C.G.A. §§ 36-82-20 and36-82-21) as necessary allegations of the petition. When this was done the burden was 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).    Burden is on state to prove material facts which are requisite to obtain validation. Lilly v. Crisp County Sch. Sys., 117 Ga. App. 868, 162 S.E.2d 456 (1968).   When unqualified trustees act as de facto officers.    - When a school district is divided by the board of education of the county by proper resolution, and no new trustees are elected or qualified for that district from which another district is created, but the trustees of the original district continue to act therefor, and call an election for the purpose of determining whether bonds will be issued for the purpose of building and equipping a schoolhouse, and the election results in favor of the bonds, and the trustees give the proper notice to the solicitor (now district attorney), the trustees are acting in the matter as de facto officers and the trustees' acts cannot be attacked as null and void in the proceeding to validate the bonds. Hardrick v. State, 53 Ga. App. 299, 185 S.E. 577 (1936).    Cited in King v. County Bd. of Educ., 174 Ga. 685, 164 S.E. 52 (1932); Lilly v. Crisp County Sch. Sys., 224 Ga. 45, 159 S.E.2d 707 (1968).   RESEARCH REFERENCES   Am. Jur. 2d.   - 64 Am. Jur. 2d, Public Securities and Obligations, § 355 et seq.