175 Ga. 749 | Ga. | 1932
Lead Opinion
1. By section 215(b) of the act of 1913 amending the charter of the City of Atlanta (Ga. L. 1913, pp. 507, 599), it is provided as follows: “Whenever ten per cent, of the registered voters, as disclosed by registration sheets of the last preceding general municipal election, shall request, in a petition filed in the office of the clerk of council of said city, the submission of an ordinance
2. In this view it is unnecessary to determine whether the charter provision as quoted above should in all cases be limited strictly to legislative as distinguished from executive or administrative matters, or to rule upon other questions besides that referred to in the preceding note.
3. The conclusion reached in this case is not in conflict with the decision in Green v. Atlanta, 162 Ga. 641 (135 S. E. 84).
4. Under the above rulings, the trial court erred in overruling
Dissenting Opinion
dissenting. I can not concur in the reversal of the judgment of the learned trial judge in this case. As will be seen from the statement of facts, this writ of error involves a proper construction of section 215(b) of the act of 1913 (Ga. L. 1913, p. 599), with reference to municipal initiative and referendum, and questions of validity of an ordinance adopted by the city council of Atlanta in 1927. The petitioners ask for a mandamus requiring the mayor and city council of Atlanta to call an election for the purpose of adopting a resolution awarding some of the public printing of the City of Atlanta to the Journal of Labor, a newspaper publication of that city. The petition for this election is based upon the provisions of section 215(b) of the act of 1913, supra, which declares: “Whenever ten per cent, of the registered voters, as disclosed by registration sheets of the last preceding general municipal election, shall request, in a petition filed in the office of the clerk of council of said city, the submission of an ordinance or resolution, the substance of which is incorporated in said petition, for adoption by vote of the people, an election shall be called therefor within thirty days after same has been read in council. If at said election said resolution or ordinance receives a majority of the votes cast, it shall become operative and can not thereafter be repealed except by an election similarly called. Provided, however, if the Mayor, and General Council adopt the resolution or ordinance so petitioned for, then no election shall be called.” The petition also contained a prayer that the mayor and city council be restrained and enjoined from awarding the contract to the Atlanta Constitution. The city filed a demurrer as well as an answer in resistance to the grant of injunction. The judge overruled the demurrer and granted an interlocutory injunction, and to this judgment the mayor and the council excepted. The city’s demurrer is based upon the ground that the petition filed with council did not comply with an ordinance of the City of Atlanta adopted in 1927, and also upon the ground that the provision for initiative and referendum supplied by the amendment to the charter of the City of Atlanta, only
1. This court takes judicial cognizance of the charter provisions of the City of Atlanta. Civil Code (1910), § 5797; Central of Ga. Ry. Co. v. Qwynes, 153 Ga. 606 (113 S. E. 183), and cit. The courts do not take judicial cognizance of municipal ordinances. Porter v. Thomasville, 16 Ga. App. 313 (85 S. E. 283); Hill v. Atlanta, 125 Ga. 697 (54 S. E. 354, 5 Ann. Cas. 614). In likening the municipality to the State, and the legislative charter by which a municipality is created to the constitution of a State, the ordinances of the mfmicipality (which by its charter or constitution the city is empowered to pass) may well be denominated the legislative enactments of the municipality. As the legislature can not pass legislation for the State in excess of the power conferred upon the General Assembly by the constitution, semble and a fortiori a municipality can not pass an ordinance which is in excess of the powers expressly conferred by the charter granted by the General Assembly. A municipality may pass such ordinances as may be in aid of its charter powers, in order thereby to give effect to the intent of the General Assembly in the passage of the charter. But a municipal legislature can no more extend or restrict, by the passage of municipal ordinances, the charter powers which the General Assembly has conferred, than the General Assembly can amend a paragraph of the constitution by a mere legislative act. Learned counsel for the plaintiff in error, in a very correct synopsis of the questions raised by the demurrer, in his brief says: “(1) Does section 416 authorize initiative on administrative or executive matters as well as legislative matters ? (2) Was this resolution with reference to matters legislative or administrative? (3) Is section 416 self-executing, and even so, have the council of the City of Atlanta the right to enact legislation so as to aid in the proper functioning thereof ? (4) Was the act of 1927 a proper proceeding in aid of section 416? (5) Was the proposed resolution of such character and so complete in itself as to authorize its submission to the registered voters of the City of Atlanta ?”
2. If the ordinance passed in 1927 is a proper proceeding in
With the foregoing well-settled rules in mind, we will now compare the provisions of the ordinance of 1927 with section 215(b) of the act of 1913, supra. The ordinance in what we may call the preamble states that “ Whereas experience has shown that in the preparation of petitions for initiating legislation it has become the practice to have them signed at various times and places, upon separate sheets and without reference to the qualifications of the signers as voters, and this has tended to cause confusion and delay in checking up the signatures: Therefore, when such petitions are hereafter prepared, same shall be filed in the office of the clerk of council, and parties desiring to sign such petition shall sign same in said office in the presence of the clerk or his deputies, and shall take the oath of a voter in the form prescribed in the present city code, and shall present a tax receipt showing their taxes paid for the previous year or make a showing that they are not subject to taxation; and petitions otherwise prepared shall not be considered
3. It is true that in many States which have adopted the initiative, referendum, and recall, it has been held that initiative is confined to legislative matters, and does not extend to administrative or executive matters. Biit since Georgia law contains no provision for initiative, referendum, and recall as a statewide proposition, it is my opinion that the only question with which we are concerned is as to the regulations appertaining to the initiative, referendum, and recall within the City of Atlanta. For many years Georgia has had the referendum as to various subjects of legislation — the stock law, road law, liquor laws, school laws, etc. However, where the legislature proposes legislation subject to ratification by the people, that is a referendum, and altogether different from the initiative. The initiative is the right conferred by law upon the people of themselves to propose legislation. The right of the people to initiate action when their representatives do not— even though only a small proportion of the qualified voters are proposing it — is thus recognized by law, and the people may then adopt it, without any further legislative action, by a majority of such voters as may be fixed by the law allowing the popular initiative or proposal of a new law. Since Georgia has no general law upon the subject, the general rules pertaining to either initiative or referendum in States which have adopted these forms of legislation are not pertinent here.
The initiative provision of section 215(b) of the act of 1913, amending the charter of the City of Atlanta, draws no distinction between matters executive or administrative, and matters purely
And so I hold that under the language employed in this statute, it was the plain purpose of the General Assembly to allow the people of Atlanta, if the necessary ten per cent, of the registered voters were willing for the question to be passed upon, to have the
4. It is insisted that the resolution submitted by the petitioners for initiative was so vague, general, and indefinite as not to present the matter for submission to the voters. I agree that any resolution permissible under the initiative should be so complete in itself as to furnish the registered voters of the City of Atlanta a plain proposition upon which they can vote intelligently. However, I think that the resolution, “Kesolved that the bid of the Journal of Labor for publishing the advertisements of marshal’s sales during 1932 be accepted,” is in such plain words as not to be “so vague, general, and indefinite” that it fails to present a matter for submission to the voters. If js but seldom that tbe fqrm in which' amepd
5. I do not think the court erred in granting the interlocutory injunction. The judge being of the opinion that a mandamus should be issued (as I think he correctly held), the failure to grant an interlocutory injunction might operate to deny to the petitioners for the initiative the right of expression accorded them by the law. The fact that the mayor and council, in obedience to the mandamus, would order the election, would not prevent further municipal action toward carrying out the contract with the Atlanta Constitution, whereby liability would be imposed upon the taxpayers of the municipality. It is true, as recently said in Morton v. Waycross, 173 Ga. 298 (160 S. E. 330), that “A court of equity will not interfere with the discretionary action of the governing officers of a city within the sphere of their legally delegated powers, unless such action is arbitrary, and amounts to an abuse of discretion.” But this is only an exception to a general rule of equity. The general rule is that equity will intervene and interpose its strong arm to prevent wrong or preserve rights, whenever in any circumstances the rules of law are inadequate to provide a remedy. Civil Code (1910), §§ 4519, 5506. In such instances the exception must yield to the general rule. I find no error in the judgment of the lower court.