Edward E. McGarity, District Attorney, George J. Hearn, III, William R. Childers, Jr., for appellee.Alfred D. Fears, Byrd, Groover & Buford, Denmark Groover, Jr., for appellants.

1, 6, 8. The indictments failed to allege offenses against the State law.

  (a) Mere authorization of purchase contracts, without allegations that the purchases were consummated, would not constitute violation of provisions of an Act requiring receiving of competitive bids "before contracting."

  (b) The Act creating the Henry County Board of Commissioners does not require competitive bidding for authorization of services.

  (c) The allegations failed to show that the low bids were for items of "the same quality."

2. Code 89-9907 is not unconstitutional on the ground of the vagueness of the expression "malpractice in office."

3. Code 89-9907 is not unconstitutional for lack of notice and hearing, which are provided for in 89-9908.

4. General laws pertaining to county commissioners need not have uniform operation throughout the State, the subject being covered also by special laws.

5. Code 89-9907 is not violative of the due process clause of the 14th Amendment to the U. S. Constitution.

7. The indictments were not defective because they included in different counts separate offenses, which were different transactions occurring at different times, arising out of the same type of conduct, but not the same conduct.

These are four separate cases, special presentments in which were returned by a grand jury in Henry County. Defendant Austin is charged with fourteen counts of malpractice in office for various transactions as alleged in the presentment against him. The other three defendants are each charged with twelve counts of malpractice in office for the same conduct as that charged against defendant Austin. The difference in numbers of counts arises by reason of the fact that some of the other three defendants did not participate in all of the transactions as charged against defendant Austin. Identical demurrers were filed in each case and the issues of law presented with respect to each case are identical. All demurrers were overruled and certificates of review voluntarily given by the court.

Each of the defendants is charged with the offense of malpractice in office for conduct allegedly occurring on specified dates. The conduct charged to be malpractice in office is the doing of certain acts on the dates specified without following the provisions of Sections 10 and 12 of Georgia Laws of 1921, page 490 et seq. which, it is alleged, constitutes malpractice in office in violation of Code 89-9907. In view of the fact that the special presentment against defendant Austin in Case No. 26461 contains charges which are common to all of the defendants in this brief, we will rule on the charges against Austin separately, for a disposition of the various counts with respect to him will dispose of the counts against the other defendants which are common to those against Austin.

1. Enumerated error 1 raises the questions whether the special presentment as a whole and each count thereof separately, allege an offense against any valid law of the State of Georgia. The latest Act creating the Board of County Commissioners of Henry County, Georgia, is contained in Georgia Laws of 1921, page 490 et seq. Sections 10 and 12 of the Act are pertinent. Section 10 of the Act reads as follows: "Be it further enacted by the authority aforesaid, That said Board of Commissioners shall be the sole purchasing agent for said county, and shall make all contracts for the purchase of all articles, goods, wares, material or merchandise for the use of said county; except in case of emergency when such items do not amount in bulk to more than $25, then the Chairman may contract and make said purchase, but he shall report the same at the next meeting of said Board. It shall be the duty of said Board of Commissioners before contracting to buy any articles, goods, wares, materials or merchandise which amount in bulk to more than $25, they shall have submitted to them at least three (3) competitive bids from dealers in the articles, goods, wares, materials or merchandise sought to be purchased, and they shall from the same quality of goods accept the lowest bid, and such bids, as well as all invoices of everything purchased, shall be kept on file by the Clerk in the office of the Board of Commissioners. No Commissioner shall receive any rebates, discounts, or prerequisites [sic] on account of any contracts or purchases they may make. Said Chairman shall have the right in only cases of emergency to employ a particular work or service for the county, and then in an amount not to exceed $25 for the whole of said work or service, which he shall report at the next meeting." (Emphasis supplied.) Section 12 of said Act reads as follows: "Be it further enacted by the authority aforesaid, That the failure of said Board of Commissioners to comply strictly with Sections 10 and 11 of this Act shall constitute malpractice on the part of each commissioner, and be cause for their removal."

  (a) All of the counts charging a law violation charging that the defendant "authorized" purchases to be made without obtaining three bids, are defective for the reason that the law applicable does not provide that "authorizing" a contract is equivalent to "entering into" or "making" a contract. Code Ann. 26-601 (Ga. L. 1968, pp. 1249, 1269). No consummation of a bilateral agreement following the alleged authorization is alleged. Even if we assume that evidence could be introduced to show final contracts, it would not suffice to correct the defective counts. Oliveira v. State, 218 Ga. 440 (128 SE2d 329) held invalid an indictment which attempted to charge that defendant with an offense no punishment for which was even provided by our statutes, and is not contrary to the Cargilecase, supra, as appellants contend. In the case of Smith v. Duggan, 99 Ga. App. 424 (108 SE2d 721). Here, the instances are alleged to be different transactions, occurring on various different days. See Phillips, supra (1b). Including multiple counts in the indictment did not violate the provisions of Code Ann. 26-506 (Ga. L. 1968, pp. 1249, 1267) because in the instant case the State did not rely on "the same conduct" to establish the commission of the offenses, but rather the same type of conduct, reoccurring in a number of instances. Enumerated error 7 is without merit.

8. Enumerated errors 8 through 21 complain of the same lack of specificity as to each individual count as does enumerated error 6 as to the allegations of the indictment as a whole, and these enumerated errors are likewise meritorious. See Division 6, hereinabove.

The trial court erred in its judgments overruling those demurrers to the indictments which are ruled on in Divisions 1, 6 and 8 hereinabove.

1971