180 Ga. 444 | Ga. | 1935
Lead Opinion
1. An act approved August 22, 1905 (Ga. L. 1905, pp. 792-814), was entitled: “An act to create a new charter for the City of Dublin, in the County of Laurens, and to consolidate and declare the rights and powers of said corporation; and for other purposes.” The act contained 75 sections. In section 1 it was declared: “That from and after the passage of this act, that the municipal government of the City of Dublin shall consist of a mayor and seven aldermen, who are hereby constituted a body corporate under the name and style of the Mayor and Council of the City of Dublin, and by that name shall have perpetual succession, shall have a common seal, and be capable in law and equity to purchase, have and to hold, receive and enjoy, possess and retain to them and their successors, for the use of the City of Dublin, any estate or estates, real or personal, of whatever kind or nature, within or without jurisdictional limits of the City of Dublin, and shall by said name be capable to sue and be sued in any court of law and equity in this State, and shall succeed lo the rights and liabilities of the present corporation of the City of Dublin.” (Italics ours.) The succeeding sections refer to matters that are usual and appropriate for municipal government, and do not purport to be amendatory of any previous act. In section 37 it was declared that “there shall be . . a city attorney.” In section 41 it was declared:
(a) This comports with the principle stated in Horn v. State, 114 Ga. 509 (40 S. E. 768), “that when the legislature intends to revise a former act or charter or to deal exhaustively with the subject of all or a part of the original act, and a portion of the original act is left out, such omitted portion is repealed by implication.”
(&) The former charter of 1893 having been repealed, the provision in section 5 thereof, relating to qualifications as .to persons entitled to hold the office of city attorney, was also repealed and rendered void.
2. An act approved August 15,1910 (Ga. L. 1910, pp. 618-659), was entitled: “An act to create a new charter for the City o£ Dublin in the County of Laurens, and to reincorporate said city and define its territorial limits, to continue in operation, confirm, and consolidate all acts heretofore passed incorporating said city and amending the charter thereof,” etc. This act contained 80 sections and
(a) “While the General Assembly has full power to amend its legislative enactments, an amendatory act, to be valid as such, must relate to an existing statute, and not to one which, having been repealed, is wholly inoperative.” Lampkin v. Pike, supra.
(b) Section 79 of the act of 1910 was in effect an effort to amend a repealed statute, and was ineffective for that purpose.
3. Under the provisions of the new charter of the City of Dublin of 1910, it is not essential that the city attorney shall be a resident of the city or shall be a qualified voter. See Beazley v. Lunceford 178 Ga. 683 (173 S. E. 852). The court did not err in sustaining the general demurrer to the petition for quo warranto, and in entering a final order refusing a rule absolute.
Judgment affirmed.
Rehearing
ON REHEARING.
A decision was rendered in this case on January 16, 1935, reversing the judgment of the trial court. On rehearing the opinion then delivered is withdrawn, and the foregoing opinion is substituted.