Spence v. Rowell
Spence v. Rowell
Dissenting Opinion
dissenting. The vice of the decision of the majority in the present case is based upon a limitation which is wholly unauthorized by the law. The majority seize upon the word “city” where it twice appears in Code § 69-101, and the reference to “city” authorities in § 69-102, to the exclusion of other provisions of the law, which leave no doubt as to the intent and purpose of the General Assembly in its enactment. In § 69-101 the word “municipal,” or “municipality,” is used five times in connection with the word “city” which appears twice. In § 69-102 the word “municipal,” or “municipality,” appears seventeen times, and § 69-102 clearly relates to the repeal of any municipal charter.
Under general definitions the word “municipality” refers to a
Considering §§ 69-101 and 69-102 together, there would appear to be no doubt but that the General Assembly intended the act to apply to all municipal corporations having less than 50,000 inhabitants. If there should be any room for doubt after a consideration of these sections together, it must be dissipated in its entirety by §§ 69-103 and 69-104. “This law shall in no event have reference to amendments to existing municipal charters except such as seek a material change in the municipal form of government or the substitution of municipal officers other than those holding existing offices.” § 69-103. “No provision of this law shall be construed as preventing the municipal officers of any municipality from abolishing any office which may have been created by such municipal officers, nor from preventing the creation of new officers to perform the duties of such abolished office.” § 69-104. These sections are limited in their application to “municipal charters,” “municipal form of government,” “municipal officers,” and “municipality,” all of which have application to any city or town incorporated by the General Assembly.
This court has twice considered the proper construction to be given to §§ 69-101, 69-102, 69-103, and 69-104. In Hoover v. Brown, 186 Ga. 519, 523 (198 S. E. 231), cited in the majority opinion, Mr. Justice Bell stated for a unanimous court: “This section [69-101] embodies a general law by which the charters of municipalities within a specified class are so fixed that no repeal, and no amendment having either of the objects stated therein, shall become effective without submission to the qualified voters.” This ruling applied §§ 69-101, 69-102, 69-103, and 69-104 to all municipalities. In Savannah Beach, Tybee Island v. Bergman, 202 Ga. 670 (44 S. E. 2d 245), this court applied
It is pointed out in the majority opinion that the General Assembly is presumed to know of the decisions of this court. This, of course, is the rule. The General Assembly, however, is a law-making body and is not called upon to make fine technical distinctions and applications of the law; and it is not, therefore, required to apply to a proposed act rules of law unrelated to the subject matter of the act. Decisions of this court wholly unrelated to the present subject matter, and pertaining to city courts, their creation and location, can not by any proper application defeat the clear and unambiguous intent of the law as contained in §§ 69-101, 69-102, 69-103, and 69-104.
With further reference to the knowledge of the General Assembly of the decisions of this court, and presumptively with this knowledge, the General Assembly construed its own act (§ 69-101, et seq.) by an act approved February 16, 1938 (Ga. L. 1937-38, Ex. Sess., p. 272), wherein by amendment the General Assembly provided: “Nothing in this section shall apply to towns or municipalities or cities having a population of not more than 2,285 and not less than 2,280 according to the United States Census of 1930, and all future census, and also cities of a population of not less than thirty-six hundred (3600) and not more than thirty-eight hundred (3800) according to the United States Census of 1930 or any future census.” The General Assembly thus construed § 69-101, et seq., to include towns, municipalities, and cities, and this is true although this court in Hoover v. Brown, 186 Ga. 519, supra, held the classification based on population to be unconstitutional and void.
Since the above Code sections apply alike to all municipalities, whether a town or a city, having a population of less than 50,000, and have been so construed by decisions of this court and by the General Assembly, I must dissent from the majority opinion.
Opinion of the Court
(After stating the foregoing facts.) Code § 69-101 declares: “No local law seeking repeal of a municipal charter of a city of less than 50,000 inhabitants, or an amendment to any municipal charter of a city of less than 50,000 inhabitants which amendment materially changes the form of government of a municipality or seeks to substitute officers for municipal control other than those in control under the existing charter, shall become effective until such repeal or amendment shall be voted upon by the qualified voters of the municipality to be affected as hereinafter provided.” And Code § 69-102 provides that, where by local law the charter of a city having less than 50,000 inhabitants is repealed, or where by local law the form of government of a city having less than 50,000 inhabitants is materially amended or seeks to substitute officers for municipal control other than those in control under the existing charter, it shall be the duty of the city authorities to call an election to be
We will now deal with the act of 1939, for, if that act legally repealed the act of 1910 which incorporated the Town of Lilbum, then for no reason alleged or shown is the act of 1955 which incorporated the City of Lilburn ineffective. Do the provisions of Code §§ 69-101 and 69-102 apply to the repeal of a charter granted to a town having a population of less than 50,000, as they do to a city having such a population? We do not think so. The legislative power of this State is by the Constitution vested in a General Assembly, which consists of a Senate and House of Representatives. Code (Ann.) § 2-1301. A municipal corporation is a political division of the State, and is a public corporation, having for its object the administration of a portion of the power of government delegated to it for such purpose. Code § 22-103. Penick v. Foster, 129 Ga. 217 (58 S. E. 773, 12 L. R. A. (NS) 1159, 12 Ann. Cas. 346); Maner v. Dykes, 183 Ga. 118, 121 (187 S. E. 699). It is a creature of the General
Judgment affirmed.
Dissenting Opinion
dissenting. The unambiguous statute (Code §§ 69-101, 69-102) beyond all doubt seeks the single objective of insuring the people a voice in any proposed legislative change in the form of their local government. This democratic purpose is in no remote degree affected by whether that local government is called a “Town” or a “City.” Both are municipal governments, serving identical purposes and having identical relationship to the people. The controlling rule for construing laws requires us to give effect to this plain legislative intent. Code § 102-102 (9); Carroll v. Ragsdale, 192 Ga. 118, 120 (15 S. E. 2d 210); Ford Motor Co. v. Abercrombie, 207 Ga. 464 (1) (62 S. E. 2d 209).
I have never been impressed or persuaded by what seems to me to be mere judicial gymnastics of this court in its numerous decisions that seek to draw a legal distinction between municipal corporations based solely upon whether they are named towns or cities. Wight & Weslosky Co. v. Wolff & Happ, 112 Ga. 169 (37 S. E. 395); Atkinson v. State, 112 Ga. 402 (37 S. E. 746); Savannah F. & W. Ry. Co. v. Jordan, 113 Ga. 687, 688 (39 S. E. 511); Mayor &c. of Smithville v. Dispensary Commrs. of Lee County, 125 Ga. 559 (54 S. E. 539).
Reference
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