Manning v. Upshaw

49 S.E.2d 874 | Ga. | 1948

1. Where the question is one of public and not mere private right, and the object of mandamus is to enforce the performance of a public duty, the relator need not show that he has any legal or special interest in the result, it being sufficient that he is interested in having the law executed and the duty enforced.

2. Where a citizen, taxpayer, and voter files a petition for the writ of mandamus against the mayor and councilmen of a municipality, asserting that they are extending their terms of office and refusing to call an election to elect their successors in violation of the terms of the charter of the municipality, and are predicating their position upon the provisions of an act of the General Assembly of 1947, the voter has such interest and right, and sustains such injury to himself by the enforcement of the terms of the act, as to authorize him to attack the act as being unconstitutional.

3. The act of 1947 (Ga. L. 1947, p. 519) is in violation of article 3, section 7, paragraph 15 of the Constitution of 1945 (Code, Ann. Supp., § 2-1915), in that the act did not have a copy of notice of publication attached to and made a part of the enrolled act.

No. 16359. OCTOBER 11, 1948. On February 16, 1948, S. N. Manning, as a citizen, taxpayer, resident, and voter of the Town of Alpharetta, and interested in the orderly and legal administration of its affairs, filed a petition for mandamus against J. T. Upshaw, as mayor, and other named parties as councilmen of said town, alleging: that each was elected under the terms of the charter of said town for a term of one year beginning February 1, 1947, and ending February 1, 1948, or until their successors are elected and qualified; that the charter provides that an election be held on the first Monday in January, and in case no election is so held a special election may be called by the acting mayor and council after giving twenty days notice; that in accordance with the terms of an amendment to the charter (Ga. L. 1931, p. 641), certain named citizens did, ten days before the first Monday in January, 1948, file with the city clerk a notice in writing of their intention to become candidates for mayor and councilmen; that said town authorities made no provision for holding said election, and none was held; and that under the charter only said town authorities can call an election.

It is alleged that the mayor and councilmen claim their office for a term of two years instead of one year, under the terms of an act (Ga. L. 1947, p. 519) extending their terms until February 1, 1949, and thereafter making the terms of the mayor and councilmen two years.

The petition asserts that the said act of 1947 is unconstitutional as being in violation of article 3, section 7, paragraph 15, of the Constitution of 1945 (Code, Ann. Supp., § 2-1915), in that the bill was passed without giving the notice therein required and without making the same a part of the enrolled act; and also that the said act is unconstitutional in that it is in violation of above-stated provision of the Constitution, in that it attempts to lengthen the term of office of the mayor and councilmen by a local or special bill without approval by the people of the jurisdiction affected in a referendum on the question; and that the said mayor and councilmen are holding their respective offices and refuse to call an election, under and by virtue of the said act of 1947.

The prayers were that the mayor and councilmen be required to call an election, to prepare ballots therefor, and to appoint election managers as required by the charter.

On the hearing of the mandamus nisi, the allegations of the petition were substantially proven, but the trial judge denied a mandamus absolute, and from this order the case is here by writ of error. 1. "In order for plaintiff to enforce a private right by mandamus he must show pecuniary loss for which he can not be compensated in damages." Code, § 64-105. But "where the question is one of public right and the object is to procure the enforcement of a public duty, no legal or special interest need be shown, but it shall be sufficient that plaintiff is interested in having the laws executed and the duty in question enforced." § 64-104; Plainfield Consolidated School Dist. v. Cook,173 Ga. 447 (160 S.E. 617); Atlanta Title Trust Co. v.Tidwell, 173 Ga. 499 (1) (160 S.E. 620, 80 A.L.R. 735);Pearce v. Wisdom, 175 Ga. 663 (1) (construing Constitution); Bankers Savings Loan Co. v. Better BusinessDiv., 177 Ga. 334 (1) (170 S.E. 291); Thomas v. Ragsdale,188 Ga. 238 (1) (3 S.E.2d 567).

The right involved in the instant case is a public one, the object to enforce the performance of a public duty; and therefore the petitioner, as a citizen and a voter, may maintain a petition for mandamus as one interested in having the laws executed and the duty in question enforced.

2. The mayor and councilmen do not contest the validity of the act, but contend that its constitutionality can not be asserted in this proceeding. They insist that a citizen and voter is precluded from attacking the constitutionality of the act for lack of an interest therein.

It is sound law that the constitutionality of a law can not be raised by one who alleges no injury to himself by its enforcement, or by one whose rights it does not affect, or where its enforcement is not an infringement of his rights of person or property; and that this court will not consider an attack upon the constitutionality of an act by one who does not show an injury to him by its enforcement. Reid v. Eatonton, 80 Ga. 755 (1) (6 S.E. 602); Plumb v. Christie, 103 Ga. 686 (2) (30 S.E. 759, 42 L.R.A. 181); Webb v. Atlanta, 186 Ga. 430 (5) (198 S.E. 50).

Applying the foregoing legal principles to the facts above stated, a question for determination is whether a citizen and voter of the Town of Alpharetta has such interest and right so as to assert injury to himself, as such, by the enforcement of the terms of the act of 1947 (Ga. L. 1947, p. 519), and authorize him to attack it as being unconstitutional. Under the charter of the Town of Alpharetta (Ga. L. 1920, p. 688), the right of a voter to vote and elect the mayor and councilmen is conferred. It can not be said that this is not a personal right, the denial of which would be an injury as an infringement of that right. Such citizens who are voters have the right to elect the mayor and councilmen of the town, and the denial of the right so to do is such an injury to the personal right of any voter as would authorize him to attack the constitutionality of an act upon which the mayor and councilmen relied in refusing to call an election, which was a duty required of them under the charter. To hold otherwise would necessarily strike down a fundamental principle of democratic government. It might be insisted that someone who sought to become a candidate would be the proper party to assert the unconstitutionality of the act, but we can not see that the right to become a candidate for mayor or councilman is a greater right than the right of a voter to select these officials. The right to attack the constitutionality of an act, under which the mayor and councilmen are relying to extend their terms and in refusing to call an election to elect their successors, is vested somewhere, otherwise the right of a municipality to have government under the Constitution would be abrogated; and unless this right can be asserted by a citizen and a voter, then a municipality could have government in violation of the Constitution with no remedy for its correction.

3. It is clear that the act of 1947 (Ga. L. 1947, p. 519), which seeks to change the terms of the mayor and councilmen from one year to two years, and extend the term of incumbents, is in violation of article 3, section 7, paragraph 15 of the Constitution of 1945 (Code, Ann. Supp., § 2-1915), as the evidence shows that the enrolled act did not have a copy of notice of publication attached to and made a part thereof, as required by the Constitution. Smith v. McMichael, 203 Ga. 74 (45 S.E.2d 431).

Accordingly, the court erred in not granting a mandamus absolute.

Judgment reversed. All the Justices concur, except Bell, J.,absent on account of illness.