Where county commissioners, and afterward the ordinary as sole commissioner of the county, leased for ten years, with the privilege of renewal, land on which was located a filling-station, at a stated rental, and a successor ordinary entered an order declaring that the property was valuable and useful to the county, and that the lease for commercial use was terminated, it was error to sustain a demurrer to a petition by the lessee for injunction against interference with his use of the leased property, and for general relief.

No. 13939. MARCH 11, 1942.

On December 5, 1923, the board of commissioners of roads and revenues of Forsyth County leased to L. A. Wheeler and John D. Black, a described tract of land on which was located a filling-station. The lease was for a period of five years, with the privilege of renewal, at a rental price of $100 per annum. Subsequently the above property was leased to Black Motor Company, of which Black was the chief stockholder. On March 28, 1936, during his term of office, R. L. Bagley, as ordinary and sole commissioner having charge of the fiscal affairs of Forsyth County, entered into a written contract leasing the same property to Black for a period of ten years, with the privilege of renewal. The rental price was $100 per annum, payable quarterly. The last-mentioned lease was entered on the minute-book where the acts of the ordinary as county commissioner were recorded. The leased property is not "serviceable" and is separated by a sidewalk from the land used for the court-house grounds, which latter contains a sufficient amount of land to amply answer all demands for county purposes. Black has been interested in the lease from 1923 to date, during which time the county has received as rent $100 per annum. On January 1, 1941, J. P. Fowler, having been elected ordinary, as successor to Bagley, became vested with sole power and authority over the fiscal affairs of the county. On March 25, 1941, Black offered to pay the amount of rent that was due. On May 5, 1941, Fowler entered an order stating that the property was valuable and useful to the county, and that the lease, having been made for commercial use, was terminated.

On May 13, 1941, Black instituted an action against Fowler as an individual and as ordinary, and against Forsyth County. The petition as amended alleged facts substantially as indicated above, and the following: Fowler has caused notice to be served, directing Black to remove all fixtures and buildings which were placed upon the lot at the latter's expense, amounting to $2000. Fowler is insolvent and unable to respond for any injury caused by tearing down the building. The county would not be liable for illegal acts in excess of Fowler's authority, and Black would suffer irreparable loss. In addition to the amount originally expended in erecting a building, Black, in March, 1941, upon the faith of the lease executed by the county through its proper officers in 1936, expended another $1000 in further improving the property. The county, by acceptance of rents and sitting by and allowing the expenditure of $3000, is now estopped to deny the validity of the lease contract. A copy of the lease contract was attached as an exhibit. It was prayed that defendants be temporarily and permanently enjoined from interfering with petitioner in the use of the leased property; and for general relief.

The exception is to an order sustaining a demurrer and dismissing the action. The grounds of demurrer the court sustained were: (1) The allegations of the petition as amended show no cause of action. (2) The petition as amended does not set out any matter or thing of equity, and the plaintiff is not entitled to the equitable relief prayed for. (3) The alleged contract is an attempt to engage the county in a commercial transaction, and to deprive succeeding county officials of the exclusive use of the property for county purposes for an indefinite period. (4) The contract shows upon its face that it is an attempt to make such a disposition of county property as would become inconsistent with the county's exclusive use of the property for a period much longer than the tenure of office of the official charged with executing the same.

ATKINSON, Presiding Justice.

1. The act approved August 18, 1919 (Ga. L. 1919, p. 652), creating the board of commissioners of roads and revenues of Forsyth County was repealed by the act approved August 7, 1924 (Ga. L. 1924, p. 332), and it was provided in the repealing act that "all the powers and duties conferred upon said board of commissioners of roads and revenues of Forsyth County by said act approved August 18, 1919, together with all other provisions of the laws of this State in regard to the administration of county affairs, shall be vested in and discharged by the ordinary of Forsyth County."

2. The ordinary when sitting for county purposes, in counties whose fiscal affairs are not under the management and control of a statutory board of commissioners, has original and exclusive jurisdiction in the matter of "directing and controlling all the property of the county as he may deem expedient according to law" (Code, § 23-701), and "may by order to be entered on his minutes direct the disposal of any real property which may lawfully be disposed of, and make and execute good and sufficient title thereof on behalf of the county" (Ga. L. 1935, p. 110; Code Ann. § 91-602), provided that the property can not be used advantageously by the county in the exercise of its public functions. Code, §§ 91-803, 91-804; Dyer v. Martin, 132 Ga. 445, 449 ( 64 S.E. 475); Killian v. Cherokee County, 169 Ga. 313 ( 150 S.E. 158).

3. Under the foregoing laws, the ordinary of Forsyth County after passage of the amending act of 1935 (Ga. L. 1935, p. 110), had power in 1936 to lease directly to an individual the realty in question, for use in operating a filling-station, as it was then being and had been used since 1923, at an annual rental of one hundred dollars a year. And such a lease, having been so executed by the ordinary, was not void, as contended, on the ground that the lease was not authorized by law, or that the interest thereby created extended beyond the term of the ordinary then in office, or that it amounted to a commercial transaction in which the county was not authorized by law to engage. This ruling is not contrary to the decision in Town of Decatur v. DeKalb County, 130 Ga. 483 ( 61 S.E. 23), decided before passage of the act of 1935, supra, where it was held that the county did not have power to lease a part of the court-house square then in public service for a term of ninety-nine years, to be devoted to a use by the lessee inconsistent with the use in which it was employed by the county.

4. On application of the foregoing rulings to the pleadings in the instant case, the judge erred in sustaining the specified grounds of the defendant's demurrer, and dismissing the action.

Judgment reversed. All the Justices concur.