Ellis v. Stokes
Ellis v. Stokes
Opinion of the Court
Section 9 of the act creating the Fulton Planning Commission (Ga. L. 1939, p. 584) provides that, after
The plaintiffs contend that the amendment of July 2, 1947, to the comprehensive zoning resolution, under which the tract of property in question was rezoned from residential property to limited apartment use, was null and void because the notice given of the hearing before the County Commissioners did not specify the day and hour of the hearing, as required by the statute, nor did 30 days elapse between the date of the notice and the date of the hearing, as was required by the zoning ordinance of the County Commissioners.
The act approved December 3, 1880 (Ga. L. 1880-81, p. 508), creating the Commissioners of Roads and Revenues of Fulton County, fixed the regular time for the meeting of said commissioners as the first Monday in every month; but, by an amendment to this statute approved September 29, 1881 (Ga. L. 1880-81, p. 546), the time for the regular meeting of the commissioners was changed to the first Wednesday in each month. We know judicially that July 2, 1947, was on the first Wednesday in July, so the notice given by the commissioners complied with the statute as to the day of the hearing. Did the failure of the notice to name the hour numerically nullify the action taken by the commissioners? Under the evidence in this regard, we are of the opinion that it did not. Webster’s New International Dictionary (2d ed.) defines the word “hour” as meaning: “fixed time; a particular time or occasion; . . also, a time
Under the provisions of section 9 of the act of 1939 referred to above, publication of notice of the hearing before the County Commissioners was required once a week for 3 weeks. In the ordinance adopted by the commissioners, it is provided that the Planning Commission shall give notice of a hearing on its recommendation to amend the zoning resolution “at or before the next regular meeting of the County Commissioners after the lapse of 30 days from the date of the notice.” The notice provided for by the statute and resolution is as to the fact that the commissioners would act on a proposal to amend the zoning ordinance on the day and time fixed in the notice. There is no contention that the commissioners did not act on the proposal to amend the zoning ordinance on the day and at the time fixed in the notice. There is no contention that the period of time between the date of the notice and the date of the hearing did not comply with the statute. The commissioners could set any time, so long as the interval between the date of the notice and the date of the hearing was at least 3 weeks. When the commissioners fixed a period of 30 days after the date of the notice, they did so as a rule of their own procedure, which was subject to change at any time by them, as long as the interval of time between the notice and the hearing was not less than 3 weeks. This court has said: “The ordinance of January 17, 1929, whereby the franchise was granted to the South Georgia Power Company is not void because it was passed at a special meeting of council and not read twice in accordance with the provisions of an ordinance of the City of Nashville adopted in 1919. Rules of procedure passed by one legislative body are not binding upon a subsequent legislative body operating within the same jurisdiction. Courts ordinarily will not invalidate an ordinance enacted in disregard of parliamentary usage, provided the enactment is made in the manner provided by statute. A munici
The trial judge did not err in refusing to grant the prayer for a temporary injunction.
Judgment affirmed,.
Dissenting Opinion
dissenting. The law requires notice giving the day and the hour when the hearing will be had. This notice and no other will satisfy the plain requirement of the law. Since notice as required by law is essential to give the commissioners jurisdiction, any action taken by the commissioners adversely affecting the property of the petitioners was void for want of jurisdiction and was a denial of due process in violation of both the State and Federal Constitutions. For the foregoing reasons I dissent from division 1 and the corresponding headnote and from the judgment of affirmance. I am authorized by Presiding Justice Atkinson and Associate Justice Hawkins to say that they concur in this dissent.
Reference
- Full Case Name
- ELLIS Et Al. v. STOKES Et Al.
- Cited By
- 6 cases
- Status
- Published