These cases involve petitions to amend by referendum resolutions of the City of Claxton to close certain railroad grade crossings. In the center of Claxton, railroad tracks maintained by the Georgia Central Railway essentially run down the middle of the street. One side is named Main Street and the other Railroad Street. No buildings abut the tracks; the nearest buildings are on the side of Main and Railroad Streets away from the tracks. Newton Street and Peters Street perpendicularly cross the tracks, and cross Main and Railroad Streets.
In a resolution dated April 7, 1997, the Mayor and City Council concluded that the railroad crossings at Newton Street and Peters Street presented an unreasonable danger to the public and resolved to close those two crossings in the interest of public safety, pursuant to a plan originally proposed by the Georgia Central Railway. Kemp, and others who either are residents or own businesses in Claxton, sued to enjoin the City from enforcing the closure resolution on the ground that the City violated OCGA § 32-7-2 (c), which concerns procedures for declaring a city street abandoned. The plaintiffs claim that closing the crossings will reduce customer access to various businesses by disrupting the traffic flow on Newton Street, Peters Street, Main Street, and Railroad Street.
The superior court granted a temporary restraining order and set a hearing to determine whether permanent injunctive relief was required. Plaintiffs then submitted two petitions to amend by referendum the April 7, 1997, resolution, and to amend a resolution of February 17, 1997, which resolved not to oppose the Georgia Central Railway’s proposal to close the crossings. The City Clerk refused to accept the petitions or approve the form, contending that OCGA § 36-35-3 (b) (2), authorizes a referendum only if it affects the city charter, and because the resolutions enacted by the Mayor and Council did not affect the city charter, no petition for referendum could lie.
Plaintiffs amended their complaint to allege that OCGA § 36-35-3 (b) (2) entitled them to initiate petitions for referendums to amend or repeal these resolutions. They moved to add the City Clerk as a party defendant and asked that the court issue a writ of mandamus *174 to require the Clerk to accept and approve the form of the requested petitions. They also requested a temporary injunction until they received just compensation for injury to their respective properties, or until referendums on the City’s resolutions could be conducted.
The superior court denied injunctive relief. It found, however, that plaintiffs had the right to pursue repeal or amendment of the resolutions by petition and referendum and granted plaintiffs’ motion to add the City Clerk as a party defendant so that plaintiffs could pursue mandamus. In a subsequent order, the court refused to issue a writ of mandamus. Although the court agreed with the plaintiffs that OCGA § 36-35-3 (b) (2) allowed them to file petitions for referendums to amend resolutions of this kind, upon review of the proposed petitions the court determined that mandamus was not appropriate because the plaintiffs were attempting to enact original legislation by popular vote, a power the court concluded was not authorized by OCGA § 36-35-3 (b) (2).
Thereafter, Womble and others submitted two petitions for referendums that sought only to repeal, not amend, the April 7, 1997, resolution, and to repeal a January 16, 1990, resolution that stated the City approved of, and would help with, state efforts to widen to four lanes the federal highway of which Main Street is a part. 1 The City Clerk also refused to accept these petitions for filing, and Womble and his fellow petitioners instituted a new action seeking, inter alia, a writ of mandamus to compel the City Clerk to accept the petitions and approve their form. The court granted the writ after concluding that the City Clerk was obligated to accept and approve the petitions under OCGA § 36-35-3 (b) (2) (C).
In S97A1698, Kemp and his fellow plaintiffs appeal the court’s refusal to enjoin the City from eliminating the railroad crossings until just compensation had been paid. They also appeal the court’s ruling that their petitions did not properly seek to amend the resolutions under OCGA § 36-35-3 (b) (2). In S97A1884, the City of Claxton appeals the court’s grant of mandamus requiring the City Clerk to accept and approve for circulation the two petitions submitted by Womble and his fellow plaintiffs.
Case No. S97A1884
1. We first address the appeal from the most recent order. The City contends that the court erred in granting mandamus because the resolutions at issue did not affect the City’s charter and the petitions were therefore unauthorized.
*175 OCGA § 36-35-3 (b) states that “a municipal corporation may, as an incident of its home rule power, amend its charter by following either of the following procedures,” set forth in subdivisions (1) and (2). 2 OCGA § 36-35-3 (b) (2) (A) provides:
Amendments to charters or amendments to or repeals of ordinances, resolutions, or regulations adopted pursuant to subsection (a) of this Code section may be initiated by a petition, filed with the governing authority of the municipal corporation, containing, in cases of municipal corporations with a population of 5,000 or less, the signatures of at least 25 percent of the electors registered to vote in the last general municipal election . . . . 3
The superior court determined that this language allowed a petition to amend or repeal any ordinance, resolution, or regulation enacted by the Mayor and Council. The City urges that the petition and referendum procedure is available only to amend the city charter, or repeal an amendment to the charter, not to amend the type of resolution at issue here. Although OCGA § 36-35-3 was enacted as part of the Municipal Home Rule Act of 1965, this is a question of first impression.
The cardinal rule of statutory interpretation is to ascertain the legislative intent, “keeping in view at all times the old law, the evil, and the remedy.” OCGA § 1-3-1 (a);
Miller v. Ga. Ports Auth.,
Moreover, a statute is to be read as a whole, and the spirit and intent of the legislation prevails over a literal reading of the language.
Hargrove v. State,
Further, when examined in the context of the structure of OCGA § 36-35-3, the very concept of home rule suggests that the provisions of (b) (2) apply only to charter amendments. Municipal corporations are creations of the state, possessing only those powers that have been granted to them, and allocations of power from the state are strictly construed.
Porter v. City of Atlanta,
The petition procedure of OCGA § 36-35-3 (b) (2) applies only to amendments to municipal charters. Consequently, the superior court erred in granting mandamus and requiring that the City Clerk accept and approve the petitions at issue.
Case No. S97A1698
2. The superior court refused to issue a writ of mandamus requiring the City Clerk to accept and approve the form of the petitions that proposed amendments to the resolutions. The court determined that although plaintiffs did have the right to use the petition and referendum mechanism of OCGA § 36-35-3 (b) (2) to amend ordinances and resolutions that did not affect the city charter, the proposed petitions would adopt resolutions contrary to the ones already *177 passed and could not be considered “amendments.” As the procedure set forth in OCGA § 36-35-3 (b) (2) is available only for proposed amendments to the city charter, and the resolutions at issue do not affect the charter, a writ of mandamus was not warranted. See Division 1, supra.
3. Citing
MARTA v. Datry,
Rather, the plaintiffs’ complaint is based on inconvenience of access. Such inconvenience of access is compensable only if it is determined that the inconvenience is special to the landowner and not that shared by the public in general.
Dept. of Transp. v. Bridges,
Judgment affirmed in Case No. S97A1698 and reversed in Case No. S97A1884.
Notes
Plaintiffs oppose this resolution because they contend the purpose of the April 7,1997, resolution was merely to effectuate the January 16, 1990, resolution.
OCGA § 36-35-3 (b) (1) pertains to amending the charter by ordinances adopted by the municipal governing authority and is not applicable here.
It is uncontested that the population of the City of Claxton is less than 5,000 as recorded in the 1990 U. S. Census.