186 Ga. 519 | Ga. | 1938
Lead Opinion
Before January 15, 1938, the municipal authority of the City of Manchester was vested in three citizens, known as the Board of Commissioners, two of whom would constitute a quorum. Ga. L. 1923, p. 739, §§ 3 and 4. See also Ga. L. 1933, p. 1033. On January 15, 1938, the General Assembly passed an act purporting to amend the charter of the City of Manchester so as to increase the number of commissioners from three to seven. This act named the following additional commissioners: Edward L. Neely, A. J. Routon, A. H. NeSmith, and Mrs. Eugene Brown; and section 9 provided that four members should constitute a quorum. It provided also that all conflicting laws “are hereby repealed, and this act shall become effective immediately upon its passage and approval by the Governor, any provisions of any law calling for a referendum to the contrary notwithstanding.” Ga. L. Ex. Sess. 1937-1938, p. 1204. The four commissioners specifically named in this statute immediately assumed office, and soon afterward T. A. Hoover and several others, as citizens and taxpayers of the municipality, instituted against each of them a separate action in the nature of an application for the writ of quo war
After the judgments had been rendered and the jurisdiction of the Supreme Court had attached, the General Assembly at the same session passed a third act, purporting to amend section 69-101 of the Code by providing, among other things, that it should not apply to cities having a population of not less than 3600 nor more than 3800 according to the census of 1930 “or any future census.” This act was approved February 16, 1938. Ga.
Section 69-101 of the Code is as follows: “No local law seeking repeal of a municipal charter of a city of less than 50,000 inhabitants or an amendment to any municipal charter of a city of less than 50,000 inhabitants, which amendment materially changes the form of government of a municipality or seeks to substitute officers for municipal control other than those in control under the existing charter, shall become effective until such repeal or amendment shall be voted upon by the qualified voters of the municipality to be affected as hereinafter provided.” One of the contentions of the defendants is that this is not a general law, but is a special law, and therefore that it could be amended by a special act, as the act of January 15, 1938, purporting to amend the charter of the City of Manchester. It is claimed that this section of the Code should be treated as a special law, because, as contended, there exists no reasonable basis for the classification therein made of municipalities. We can not agree to this contention. The classification is broad, in that as to cities having a population of less than 50,000 inhabitants the charters shall not be subject to repeal or amendment so as to change the form of government or to substitute officers for municipal control, without submission to the qualified voters; whereas no such referendum is required in municipalities having a population of 50,000 or more. In view of the stated objects of this legislation and the broad range of classification, it can not be said by this court that the classification is not based upon reasonable ground. Stewart v. Anderson, 140 Ga. 31 (78 S. E. 457) ; Adams Motor Co. v. Cler, 149 Ga. 818 (102 S. E. 440); Cooper v. Rollins, 152 Ga. 588 (110 S. E. 726); Wright v. Hirsch, 155 Ga. 229 (116 S. E. 795);
It is further contended that section 69-101. expresses a mere rule of legislative procedure 'which was not, and could not be, controlling upon subsequent legislatures. Nor can we sustain this contention. This section embodies a general law by which the charters of municipalities within a specified class are so fixed that no repeal, and no amendment having either of the objects stated therein, shall become effective without submission to the qualified voters. This statute does not purport to bind future legislatures. Being a mere statute, it may be amended or repealed in a lawful manner by any subsequent legislature; although, being a general statute, it can not under the constitution be so amended or repealed except by another general law. The decision in Mayor &c. of Americus v. Perry, 114 Ga. 871, 877 (40 S. E. 1004, 57 L. R. A. 230), was rendered before the passage of this statute, and contains nothing contrary to what is ruled in the present case. Nor does the decision in Orr v. James, 159 Ga. 237 (6) (125 S. E. 468), support the contention that section 69-101 states a mere rule or policy of legislative procedure. That decision had reference to a provision in the Civil Code of 1910, § 486, to the effect that elections for a change of “county-site” shall not occur of tener than once in five years. The decision was expressly based on the ground that the power-granted by the constitution to enact statutes removing county-sites “can not be limited by act of the legislature so as to bind subsequent legislatures.” See Code, § 2-8205. It was said that in this respect one legislature can not bind another legislature. This is a very different question from that presented in the instant ease.
The act of January 15, 1938, by which the number of commissioners was increased from three to seven, and the number necessary to constitute a quorum was changed from two to four, was an amendment to the charter of the City of Manchester, seeking “to substitute officers for municipal control other than those in control under the existing charter.” The act provided that it would become effective without a referendum, although the City of Manchester had a population of less than 50,000 inhabitants and not
Under the rulings hereinbefore stated, judgments should have been rendered in favor of the relators, unless the invalidity of the act of January 15, 1938, was cured by the subsequent act of January 25, 1938. The latter act purported to be a general act amending the general law as contained in section 69-101, by providing that the terms of this section should not apply to any municipality having a population of not less than 3600 nor more than 3800 by the United States census of 1930. It also attempted as a general law to ratify and confirm any' previous act amending the charter of any such city. This statute is unconstitutional and void, as contended by the relators, since it is clearly apparent that the narrow classification therein stated is not based upon any reason
Ordinarily a motion to dismiss a writ of error is the first matter for decision; but in this instance the motions to dismiss, depended upon principles involved in the cases themselves, and for this reason decision thereon has been reserved as the last matter for determination. After the rendition of the judgments under review and after jurisdiction of the eases had become vested in the Supreme Court, the General Assembly on February 16, 1938, passed a third act purporting again to amend section 69-101. So far as here material, the provisions of this amendment were the same as those contained in the act of January 25, 1938, except that after statement of population by the census of 1930 the words “or any future census” were added. The motions to dismiss the writs of error were based upon the asserted ground that the passage of the act of February 16, 1938, cured any possible defects in the two previous acts, rendering the judgments valid, and causing the questions raised by the relators in this court to become moot. The relators, who are the plaintiffs in error, replied by challenging this act upon grounds similar to those urged against the previous acts of January 15 and January 25. Under the principles ruled above, this act is likewise unconstitutional for the reason that it is based upon no reasonable classification, and is therefore only a special statute seeking by its terms to amend a general law. In view of the narrow classification stated therein, the addition of the words “or any future census” does not alter the case. Gibson v. Hood, 185 Ga., 426 (195 S. E. 444). It has often been held that this court will not pass upon the constitutionality of a statute unless the point was distinctly made and decided in the court below. In the circumstances of this case the plaintiffs had no op
Judgments reversed.
Rehearing
ON REHEARING.
A joint motion for rehearing was filed by the defendants in error in these cases. Only two contentions were pressed in this motion. First, the movants urge again that the act of January 15, 1938, purporting to amend the charter of the City of Manchester, did not involve such a substitution of officers as to require a referendum on that ground, under the Code, § 69-101. As stated in the original opinion, this section was derived from the act of 1925 as amended by the act of 1927. Ga. L. 1925, p. 136; Ga. L. 1927, pp. 244, 245. The caption of the former act referred to “the naming of other municipal officers other than those holding under existing charters.” It also contained the words “for other purposes.” It did not include the words “for municipal control.” Nor was the latter phrase contained in section 3, which, so far as here material, has been codified to read as follows: “This law shall in no event have reference to amendments, . . except such as seek . . the substitution of municipal officers other than those holding existing offices.” Code, § 69-103. While the caption and all provisions of the act are to be considered in its interpretation, the omissions just noted would not warrant this court in construing section 1 as if the words “for municipal con
The second contention is that the act of January 15, 1938, purporting to amend the particular charter, should not have been declared unconstitutional as a whole, and that at most only section 11 should have been held invalid, with the remaining portions sustained as valid and to become effective on approval by the qualified voters. Accordingly, it is insisted that our decision should be so modified as to permit a referendum, or so as to apply section 69-102 in reference thereto. Counsel emphasize in this connection the provision of section 10, “that if any portion or section of this act be declared unconstitutional it shall not affect the remaining sections of this act, and the same shall remain in full force and effect.” This provision can not change the result, in view of section 11. It was provided by that section that “this act shall become effective immediately upon it§ passage and approval by the Governor, any provisions of any law calling for a referendum to the contrary notwithstanding.” It is plain from this language that the existing rule as to referendum was recognized or in mind in the enactment of this statute; and that instead of a mere failure to observe it, there was a positive intention that it should not be applied to this measure. In other words, it is apparent from this section that the legislature not only did not intend a referendum, but consciously intended exactly the contrary. It follows that an approval of the act by the voters would be utterly without force, because inconsistent with the intention of the lawmaking body.
In view of section 11, referring to the act as a whole and expressly excluding from the whole all right of referendum, section 10 can be taken to mean only that if any portion of the act considered as a presently effective statute should be declared uncon
Judgment adhered to on rehearing.