Bray v. City of East Point

46 S.E.2d 257 | Ga. | 1948

Where the title of an act purports to enumerate the land lots and parts of land lots included in the territory to be annexed to a city, and the body of the act, describing the annexed territory, includes parts of two land lots omitted from the title, the act violates the constitutional prohibition against the passage of legislation which "contains matter different from what is expressed in the title," and is void.

No. 16022. JANUARY 16, 1948. REHEARING DENIED FEBRUARY 12, 1948. O. J. Bray, and others, as resident real-estate owners and taxpayers of certain territory annexed to the City of East Point by an act of the General Assembly of 1947 (Ga. L. 1947, p. 1001), brought a petition against the City of East Point and named persons as the Mayor and members of the General Council, the Chairman and members of the Zoning Committee of the City of East Point, and Charley Connally, the owner of certain real estate in land lot 185 of the 14th District of Fulton County. The petition attacked the constitutionality of the annexing act on several grounds, and attacked the election held pursuant to the act, which election resulted in favor of annexation. The petitioners alleged: The Mayor and General Council of the City of East Point are attempting to exercise power over the petitioners and others living in the annexed territory, claiming them to be citizens of the city, and subject to the obligations by law imposed upon them by the city; unless the defendants are restrained and enjoined from so doing, they will continue to seek to exercise dominion and control over such territory and endeavor to collect taxes from the residents thereof, to impose license fees upon persons engaged in business in such territory, to rezone such territory, and generally to deal with the citizens of the territory as legal residents of the city. The petitioners have expended large sums of money in improving and beautifying their homes upon the promise that the territory affected would remain for residential purposes only. Charley Connally, one of the defendants named, has applied to the Zoning Committee of the City of East Point to have certain property owned by him in this territory rezoned for business purposes. The petitioners believe that unless restrained and enjoined, the Zoning Committee will allow this rezoning, and that such action will be null and void. The petitioners are without adequate remedy at law. They prayed for process; that the Mayor and General Council of the City of East Point be restrained and permanently enjoined from exercising or seeking to exercise dominion, control, or supervision of the territory described, or any of the residents or citizens thereof, and from dealing with the territory as a part of the City of East Point; that the Zoning Committee and Charley Connally be restrained and permanently enjoined from changing the present zoning restrictions on the property owned by Connally; and for such further relief as they may be entitled to in the premises.

The trial judge sustained the general demurrers of the defendants, and dissolved the temporary restraining order previously granted, with certain conditions pending an appeal of the case. The exception here is to the order sustaining the demurrers and dismissing the petition. The title of the act extending the limits of the City of East Point states the purpose of the act to be to amend the act creating a charter for the City of East Point, and the several acts amendatory thereof, "so as to annex all of land lots 167 and 186 and part of land lot 154 of the 14th District of Fulton County . . and all of land lots 195, 196, 197, 198, 199, and part of land lots 194, 221, 222, and 223 in said 14th District of Fulton County. . ." Section 1 of the act describes in detail the territory annexed, which description includes not only the land lots and parts of land lots enumerated in the title of the act, but also includes parts of land lots 168 and 185 in the 14th District of Fulton County. One of the constitutional attacks made by the plaintiffs in error is that the inclusion of a part of these two land lots in the territory embraced by the act, when the lots were not mentioned in the title, violates art. 3, sec. 7, par. 8 of the Constitution of Georgia (Code, Ann. Supp., § 2-1908), which declares that no law shall pass which "contains matter different from what is expressed in the title thereof."

It is not necessary that the title of a local act be specific. In Holland v. State, 155 Ga. 800 (118 S.E. 203), it was said: "Where the title of an act puts every one on notice that a certain act is to be amended, this is sufficient for every one who may be affected to be on their guard as to all matters connected with the subject-matter of the act, which is recited in the title." But in the present case, as was said in Prothro v.Orr, 12 Ga. 36, 42, "the title is definite, and therefore, necessarily limited. And to permit other and totally different matter to be incorporated, would be to let in the very mischief intended to be prevented; and thus render the Constitution of none effect." The purpose of the provisions of art. 3, sec. 7, par. 8 of the Constitution was "to protect the people against covert or surprise legislation." Blair v. State, 90 Ga. 330 (17 S.E. 96, 35 Am. St. R. 206); Central Ry. Co. v. State,104 Ga. 831, 845, 846 (31 S.E. 531, 42 L.R.A. 518).

Since the title of the act under consideration purports to enumerate the land lots and parts of land lots to be included in the territory annexed to the City of East Point, but does not contain any reference to land lots 168 and 185, parts of which are included in the annexed territory described in the body of the act, the act "contains matter different from what is expressed in the title," in violation of the Constitution, art. 3, sec. 7, par. 8. Blair v. State, supra; Crabb v. State,88 Ga. 584 (15 S.E. 455); Harris v. State, 110 Ga. 887 (36 S.E. 232); Arrington v. State, 148 Ga. 115 (95 S.E. 980); Cowan v. Atlanta, 177 Ga. 470 (170 S.E. 356). It is unnecessary that any ruling be made on other constitutional attacks made on the act.

It was error to sustain the general demurrer of the defendants.

Judgment reversed. All the Justices concur, except Wyatt, J.,who took no part in the consideration or decision of this case.