47 S.E.2d 582 | Ga. | 1948
Lead Opinion
1. The amendment to the charter of the City of Augusta by the act of 1947 (Ga. L. 1947, p. 320) offends article 3, section 7, paragraph 15 of the Constitution of this State, in that the enrolled act does not contain proof of advertisement as there required, and is, therefore, unconstitutional and void.
2. That the act contains a provision for a referendum and requires the approval of a majority of the votes cast as a condition precedent to its becoming operative, and the records shows that it was approved by a majority of the voters, does not excuse the noncompliance with the constitutional requirement as to advertisement. The Constitution makes no exception, but applies alike to any and all local or special bills, and in obedience to the Constitution this court will make no exception.
3. Where the charter amendment became operative on January 1, 1948, and the city has been operated thereunder since then, but prior to that time the present action was filed, seeking a judgment declaring the act unconstitutional, these facts do not justify application of the doctrine of argumentum ab inconvenienti by this court in order to hold the act valid.
W. D. Page, on December 31, 1947, filed an answer admitting all of the allegations of the petition, alleging that he was Mayor of the City of Augusta and was legislated out of office by the said act of 1947, and he prayed that the other defendants be enjoined from interfering with him in the performance of his duties as mayor.
Arthur Balk, John W. Burke, Henry Giebner, Frank Loyal, and H. S. Cook filed, on December 31, 1947, an answer admitting all the allegations of the petition, and alleging that under the old charter they were members of City Council of the City of Augusta and would hold over until their successors were elected and qualified, and praying that the other defendants be restrained and enjoined from interfering with them in the performance of their duties as such members as provided in the charter as it existed prior to the enactment of the alleged unconstitutional act of 1947. *513
James J. Harbin filed, on January 2, 1948, an answer admitting all the allegations of the petition, and praying that the court enter a declaratory judgment as prayed.
City Council of the City of Augusta, A. W. Lucky Jr., Thomas G. Bailie Jr., R. J. Wilkinson, Lawrence Carry, L. E. Palmer, Ollie Williamson, and John P. Cooney, on January 2, 1948, filed an answer setting up that the old charter of the City of Augusta had been repealed by the said act of 1947, that the act was constitutional, of full force and effect and valid in every respect, and that under its terms they constituted all the members of City Council of the City of Augusta and were entitled to conduct the affairs of the city; and that, as appears from the allegations of the petition and the answers of the other defendants, chaos and confusion would result in the administration of the affairs of the city council and in the conduct of the government of the City of Augusta unless the petitioners and the other defendants be enjoined from molesting or interfering with them in the exercise of their duties in the conduct of the government of the City of Augusta. They prayed for a declaratory judgment and that the petitioners and the other defendants be enjoined from molesting and interfering in any way with them in the exercise of their functions in the conduct of the government of the City of Augusta under the terms of the said act of 1947.
A. H. Lehmann filed, on January 2, 1948, an answer alleging that for want of sufficient information he could neither admit nor deny the allegations of the petition, but praying that the said act of 1947 be declared constitutional and valid in every respect.
The case came on for a hearing before the presiding judge. The petitioners introduced in evidence their verified petition and a certified copy of the enrolled act under consideration, certified by the Secretary of State; the said copy of the enrolled act as signed by the Speaker of the House and the presiding officer of the Senate, and approved by the Governor on March 24, 1947, not having attached thereto and made a part thereof a copy of a notice published in the newspaper in which the sheriff's advertisements for the locality affected are published, certified by the publisher, and neither was it, as certified, accompanied *514 by an affidavit of the author of the bill to the effect that notice had been published as provided by law.
The verified answers of the defendants were introduced in evidence.
City Council of Augusta and the defendant members, A. W. Lucky Jr., R. J. Wilkinson, Thomas G. Bailie Jr., Lawrence Carry, L. E. Palmer, Ollie Williamson, and John P. Cooney, introduced in evidence a resolution adopted by City Council of Augusta on March 26, 1947, to the effect that, pursuant to the said act of 1947, a referendum election would be held on the first Wednesday in May, 1947, for the purpose of submitting to the qualified voters the question of the adoption of the provisions of the said act of 1947; also a copy of a notice which appeared in The Augusta Chronicle under dates of March 28, April 4, April 11, and April 18, 1947, as to the referendum election to be held as aforesaid; also a copy of the minutes of City Council of Augusta held on May 8, 1947, declaring the results of the referendum election held on May 7, 1947, the consolidated returns showing "for city manager government" 6010, and "against city manager government" 5149, and declaring the said act adopted in the said referendum election. The same defendants introduced in evidence, over objection of the petitioners, a certified copy of House Bill No. 51 as introduced in the House of Representatives on January 23, 1947, read the third time, and passed by the said House on January 29, 1947, the same being an exact copy of the said act as approved March 24, 1947, but not having affixed thereto the signatures of the Governor, the Speaker of the House and the presiding officer of the Senate. There was attached thereto and made a part of the said bill notice of intention to apply for passage of the act under consideration, and also affidavit of the publisher of The Augusta Chronicle as to publication of the notice on December 14, 21, and 28, 1946. Also attached was a certificate of the Secretary of State as to the correctness of the copy of the said House Bill No. 51. The petitioners objected to the admission in evidence of the said bill on the ground that it was irrelevant, immaterial, and illustrated none of the issues involved in the case, and for the further reason that the courts could not go behind the signature *515 of the Governor, the Speaker of the House and the presiding officer of the Senate in determining what happened with reference to a bill pending in the General Assembly, and no sort of evidence should be allowed as against what was shown by the enrolled act itself.
The petitioners, G. C. Smith, C. Y. Kreps, H. L. Baston, H. E. Kernaghan, and M. W. Edelstein, were sworn as witnesses, and each testified that he had voted in the referendum election on the question of the adoption of the new city charter and had voted against the adoption. It was stipulated between counsel for all parties that the defendants, W. D. Page, Frank Loyal, Arthur Balk, John W. Burke, Henry Giebner, H. S. Cook, and James J. Harbin, would give similar testimony if called to testify.
The court, on January 3, 1948, entered the following order: "It is considered, ordered, adjudged, and decreed that pending the further order of this court: (1) G. C. Smith, C. Y. Kreps, H. L. Baston, H. E. Kernaghan, M. W. Edelstein, W. D. Page, Arthur Balk, John W. Burke, Henry Giebner, Frank Loyal Sr., H. S. Cook, James J. Harbin, and A. H. Lehmann, and all of their agents and employees and every other person whomsoever be and they are hereby restrained and enjoined from interfering with A. W. Lucky Jr., Thomas G. Bailie Jr., R. J. Wilkinson, Lawrence Carry, L. E. Palmer, Ollie Williamson, and John P. Cooney in the discharge of their duties under the act of the General Assembly of 1947 (Georgia Laws 1947, pages 320-346) as members of the City Council of Augusta or any other officers, agents, or employees of the City Council of Augusta in the discharge of their duties pursuant to the act of the General Assembly of 1947 (Georgia Laws 1947, pages 320-346). (2) That the prayers of petitioners and of defendants, W. D. Page, Arthur Balk, John W. Burke, Henry Giebner, Frank Loyal Sr., and H. S. Cook for injunctive relief be and the same are hereby denied."
The petitioners, by bill of exceptions in case No. 16154, assign error on such judgment, naming as defendants in error all of the defendants named in their original petition; and it is contended that the judgment is contrary to law because the act in question is violative of article 3, section 7, paragraph 15 of the Constitution of this State. *516
The petitioners, by bill of exceptions in case No. 16169, naming as defendants in error all of the defendants named in their original petition, assign error on the judgment of the court in admitting in evidence, over their objection, the resolution of the City Council of Augusta on March 26, 1947, providing for a referendum election as hereinbefore shown; it being contended that it was void and unconstitutional for the reason that the act of 1947 under consideration, providing for the said referendum election, was unconstitutional and void because in violation of article 3, section 7, paragraph 15 of the Constitution of this State, and because the act contained no provision authorizing the City Council of Augusta to call a referendum election. Error is also assigned on the admission in evidence, over their objection, of the aforesaid notice which appeared in The Augusta Chronicle on the dates mentioned, as to a referendum election on the first Wednesday in May, 1947; it being urged that the act did not provide for the publication of a notice of the referendum election, and therefore the notice was without legal authority, and also without legal effect because the notice published by the clerk of council was without authority and direction. Error is also assigned on the admission in evidence, over their objection, of a copy of the minutes of the city council held on May 8, 1947, declaring the results of the referendum election, on the ground that the act under consideration was unconstitutional and void and, accordingly, any referendum election held under it would be void and without legal effect. Error is also assigned on the admission in evidence, over their objection of copy of House Bill No. 51, upon the grounds of objection made when the evidence was offered and as hereinbefore stated. Error is also assigned upon the final judgment, it being contended that the act in question is a local or special bill and was passed in violation of article 3, section 7, paragraph 15 of the State Constitution, and a finding was demanded that it was unconstitutional and void.
The defendants, W. D. Page, Arthur Balk, Frank Loyal, Henry Giebner, John W. Burke, H. S. Cook, and James J. Harbin, by bill of exceptions in case No. 16180, naming as defendants in error the petitioners, assign error in the same respects as did the plaintiffs in error in case No. 16169. *517
1. The controlling question here is whether or not the charter amendment of the City of Augusta (Ga. L. 1947, p. 320) is valid under the Constitution, article 3, section 7, paragraph 15. The enrolled copy, which was signed by the presiding officers of the two branches of the General Assembly and approved by the Governor, does not have attached thereto and made a part thereof proof of the advertisement as required by the Constitution. This court held in Smith v. McMichael,
2. There was no referendum in the Smith case, supra. It is, therefore, contended by counsel for the defendants in error here that, since the present act provided for a referendum and required that it be approved by a majority of the voters before it would become operative, the decision in the Smith case, supra, is not controlling here. It is contended that the wishes of the people affected should outweigh all other considerations when we come to pass upon the validity of the act. We recognize that the supreme authority in this State is the people, but the State Constitution was established by the people and must be obeyed, not only by the three coordinate branches of the government, but by the people as well. The clause of the Constitution here *518
involved is a deliberate creation of the whole people, and it will not yield, so long as it remains a part of the Constitution, to the wishes or temporary convenience of anyone. This court has been repeatedly required to hold unconstitutional and invalid legislative acts which have been approved by the people affected in a referendum. Sellers v. Cox,
But counsel for the defendants in error cite Paulsen v.
Portland,
The defendants in error do not, and indeed could not, contend that the act would ever become effective in the absence of its approval in the referendum, since by its terms it expressly provides for the referendum as a condition precedent to its operation. It is obvious, therefore, that the legislature intended the portions of the act providing for a referendum to become effective immediately upon its approval by the Governor. To become effective it must become a law, but under the Constitution the absence of the required proof of advertisement prevents it from becoming a law. It follows that the referendum was unlawful, and the result of the unlawful referendum was likewise unlawful. See Cox v. Hapeville,
3. Finally, counsel for the defendants in error contend that, *520
even though the act be unconstitutional, this court should apply the doctrine of argumentum ab inconvenienti, as was done inSolomon v. Commissioners of Cartersville,
Judgment reversed in each case. All the Justices concur.Jenkins, C. J., concurs specially.
Concurrence Opinion
Although I dissented in the case of Smith v. McMichael,