165 Ga. 520 | Ga. | 1928
In 1923 the General Assembly passed an act empowering cities and towns in this State to provide, maintain, and conduct supervised recreation systems, and to acquire and maintain playgrounds and other recreational facilities. This act was approved August 18, 1923, Ga. L. 1923, p. 107. Wilson brought a petition for mandamus to compel the City Council of Augusta to carry out the provisions of this act. The defendant demurred to the petition, and the court dismissed the action. The demurrer was based upon the following grounds: (1) No process was annexed to the petition. (2) No cause of action is set out. (3) The law upon which the petition is based is a local or special law, and is not a general statute and has no application to the City Council of Augusta. (4) The relator does not set forth facts which entitle him to the mandamus as prayed for. (5) The
The first ground of demurrer is based upon the allegation that no process was annexed to the petition. As the trial court dismissed the petition upon other grounds of the demurrer, and the defendant has filed no cross-bill of exceptions, it is doubtful if the failure of the judge to dismiss the petition for want of process is properly before this court for adjudication; but conceding that it is before us, the court did not err in disdaining to notice the first ground of the demurrer, for it would have afforded no reason why the petition should be dismissed under the circumstances of the present case. The defendant waived process by his general demurrer, the second paragraph of the demurrer being “that no cause of action is set out in said petition.” Under section 5559 of the Code of Í910, the defendant was pleading to the merits in the same breath that he was asserting that there was no process; but this court has uniformly held that the filing of a general demurrer is a waiver of process. Lyons v. Planters Bank, 86 Ga. 485 (12 S. E. 882, 12 L. R. A. 155). It is true that in the Lyons case the defendant raised the question of service after appearance at the first term, and demurred generally at a subsequent term; and the court held that under those circumstances it was too late, but the general principle stated by Chief Justice Bleckley is that demurring generally to the plaintiff’s petition is pleading to the merits. In view of the principle last stated, even if the defendant desired to raise the point that no process was annexed to the peti
Upon consideration we are of the opinion that the merits of the several attacks upon the constitutionality of the act may all be solved by determining whether the act is a local or special law or a general law. Eor this reason the demurrer really contains but two grounds which need be considered at this time. The learned trial judge placed his judgment sustaining the demurrer upon the ground that “The original bill of 1923, providing for municipal playgrounds, was a general bill, which required no notice. By amendment the following rider was put on it, to wit: 'Provided, however, that the provisions of this act shall not apply to recreation or pla3rground commissions, boards, or systems which are now created or which may hereafter be created by special acts of the legislature.’ The bill, thus amended, made it a special or local law, which required notice in such cases as required by law. If this bill had originally been a local bill, the City Council of Augusta would not now be heard to say that the proper notice was not given; but this law is made local only by the amendment above
Article 1, section 4, paragraph 1, of the constitution consists of three distinct parts, each referred to a distinct requirement or duty imposed upon the General Assembly. First, laws of a general nature shall have uniform operation throughout the State. Second, no special law shall be enacted for which provision has been made by general law. Third, no general law affecting private rights shall be varied in any particular case by s]jecial legislation, except with the free consent in writing of all persons to be affected thereby, etc. It is plain that the act of 1923 does not offend the second provision of art. 1, sec. 4, par. 1, because (even if the law were a special law) no provision as to
So the real question in this case is whether the adoption of the amendment set forth as section 11a renders the act unconstitutional, as held by the trial judge. This court is of the opinion that, conceding that the provisions of section 11a are obviously unconstitutional, it is our duty to so declare; and having thereby avoided section 11a, there remains no difficulty as to the constitutionality of the remainder of the act. Section 11a consists of two parts or provisions: the first declaring that the provisions of this act shall not apply to playground systems already created; and the second excepting from the operation of the law such playground systems as may hereafter be created by special acts of the legislature. It is plain that the second provision of section 11a is void and of no effect, because it obviously seeks to violate the paragraph of the constitution just referred to, by providing a superiority in rank for special acts which might possibly be passed in the future over the general law of the State upon the same subject. As to the first provision, it does not necessarily follow that a law is not a general law within the requirement of the paragraph of the constitution under consideration because perhaps an ancient law, local in its nature, is excepted from the operation of the general law because the exception is necessary to preserve a preexisting act of purely local scope, and the rights of the people of that particular locality which have been created by and are dependent upon such pre-existing local legislation. And even in very important general legislation such as the general local option law of 1885, an act to prevent the evils of intemperance, etc., this
We have not discussed the matter of lack of advertisement as required by the constitution for local and special bills, because, as indicated in the order of the judge, it must be presumed that there was advertisement as required, if a local or special bill has been passed by the General Assembly, unless it appears from the journals that there was no advertisement. The question of preliminary advertising of a local bill is for determination by the General Assembly before the passage of the bill. Peed v. McCrary, 94 Ga. 487 (21 S. E. 232); Burge v. Mangum, 134 Ga. 307 (67 S. E. 857). The courts must presume that the requisite publication was made, unless the contrary appears from the journals. Fullington v. Williams, 98 Ga. 807 (27 S. E. 183) ; Chamlee v. Davis, 115 Ga. 266, 271 (41 S. E. 691); Lee v. Tucker, 130 Ga. 43 (60 S. E. 164). We have referred to this because, even if the adoption of section 11a of the act as an amendment to what was previously' a general bill could have transformed it into a local or special bill, it must be presumed that the amendment was taken from a local bill which had been duly advertised. Lee v. Tucker, supra.
It was error to sustain the demurrer and dismiss the petition.
Judgment reversed.