247 Ga. 64 | Ga. | 1981
Article IX, Section VIII, Paragraph II of the Georgia Constitution (Code Ann. § 2-6502) provides:
“The development of trade, commerce, industry and employment opportunities is hereby declared to be a public purpose vital to the welfare of the people of this State. The General Assembly may create Development Authorities to promote and further such purposes or may authorize the creation of such an Authority by any county or municipal corporation ... as it may deem necessary. The General Assembly may exempt from taxation Development Authority obligations, properties, activities or income and may authorize the issuance of Revenue Obligations by such Authorities which shall not constitute an indebtedness of the State within the meaning of Section VII of this Article [§§ 2-6401 through 2-6404].”
Beverly Enterprises is in the business of owning or leasing and managing health care facilities, particularly skilled and intermediate care nursing homes. Beverly wanted to acquire a health care facility known as the Moody Nursing Home. In November, 1980, Beverly requested the Development Authority of DeKalb County to adopt a resolution authorizing the issuance of tax exempt bonds to finance the project. The Authority refused to act on the resolution on the ground that it had been advised that the portion of the Development Authorities Law pertaining to nursing homes was unconstitutional. Beverly brought an action for mandamus against the Authority seeking to require it to consider the bond resolution.
We granted expedited review.
(1) The Authority argues that since the constitutional amendment (Code Ann. § 2-6502) does not specifically list the provision of health care as a public purpose to be promoted by
“Industry” has been defined as “any department or branch of art, occupation, or business conducted as a means of livelihood or for profit; especially, one which employs much labor and capital and is a distinct branch of trade.” Black’s Law Dictionary, (4th Ed. 1968) pg. 916. The term “nursing home” appears to fit within this definition and the Authority has not proven that it does not. Since a statute properly enacted is presumed to be constitutional, Bryan v. Georgia Public Service Commission, 238 Ga. 572, 573 (234 SE2d 784) (1977), and the Authority had not proven otherwise, we find that Code Ann. § 69-1501 (e) (11) is not contrary on its face to the amendment to the Georgia Constitution found in Code Ann. § 2-6502.
(2) It is conceded by both parties that Beverly’s acquisition of the Moody Nursing Home will increase or maintain employment in DeKalb County. We, therefore, need not address Beverly’s contention in its cross-appeal that such a showing is not required under the law.
Judgment in case no. 37172 affirmed; case no. 37173 dismissed as moot.
We note here that mandamus does not lie to compel an act which is absolutely discretionary, unless there has been a gross abuse of discretion. Code Ann. § 64-102. However, mandamus will lie to compel the exercise of that discretion. See Chandler v. Ault, 234 Ga. 346 (216 SE2d 101) (1975) involving the Board of Pardons and Paroles.