Fullington v. Williams

• Decision Date: 01 October 1896
• Citation: 27 S.E. 183,98 Ga. 807
• Parties: FULLINGTON et al. v. WILLIAMS et al.
• Court: Georgia Supreme Court

27 S.E. 183

98 Ga. 807

FULLINGTON et al. v. WILLIAMS et al.

Supreme Court of Georgia

October 1, 1896

Syllabus by the Court.

1. The truth of allegations in an equitable petition that certain constitutional requirements had not been complied with in the passage of an act incorporating a town cannot be shown either by admissions in an answer filed by the persons acting as mayor and councilmen of such town, who are the defendants to the petition, or by their failure to deny such allegations. The only evidence which can be legally invoked in such case is the journals of the two houses of the general assembly.

2. Following the decision of this court in the case of Adam v. Wright, 84 Ga. 720, 11 S.E. 893, the act of December 1, 1893 (Acts 1893, p. 65), to repeal the act of October 19 1891, "to provide the mode of granting charters," etc. (Acts 1890-91, vol. 1, p. 190), is not unconstitutional as being in violation of that provisions of the constitution which declares that no law shall be repealed by mere reference to its title. Code, § 5076. The repealing act sufficiently described the act repealed, by setting forth the title of the latter, and giving the date of its approval.

3. The law embodied in Code, §§ 774-797 (c), for the incorporation of towns and villages, is not one of a general nature having uniform operation throughout the state, for the reason that it does not apply "to any community, town or village within one mile of the corporate limits of any city in this state," and therefore a very considerable portion of the territory of the state is expressly excluded from its operations. Consequently, it is within the power of the general assembly to pass an act incorporating a town or village, without violating paragraphs 1, § 4, art. 1, of the constitution. Code, § 5027.

Error from superior court, Dooly county; W. H. Fish, Judge.

Petition by G. W. Fullington and others against W. L. Williams and others. From a judgment for defendants, plaintiffs bring error. Affirmed.

J. H Martin, for plaintiffs in error.

Busbee, Crum & Busbee and J. M. Terrell, for defendants in error.

SIMMONS C.J.

Fullington and others, for themselves and other citizens of the town of Pinehurst, brought their petition against Williams and others, to enjoin the defendants, their marshal, clerk, and treasurer, from exercising the privileges, etc., of mayor and councilmen of Pinehurst, or acting under the act of December 16, 1895, incorporating said town; the petitioners contending that the act referred to was unconstitutional and void, on various grounds set out in the petition. The injunction prayed for was refused, and the petitioners excepted.

1. One of the grounds of attack upon the act in question was that notice of the intention to apply for its passage was not given before the introduction of the bill, as required by the constitution (article 3, § 7, par. 16; Code 1882, § 5075) and by the act of December 3, 1878 (Code 1882, § 193a); and it is complained that the court below erred in declining to receive affidavits to this effect. The question here made is ruled by the decision of this court in the case of Speer v. Mayor, etc., 85 Ga. 49, 11 S.E. 802, where it was held that evidence outside of the journals of the legislature will not be received to show noncompliance with this requirement. The journals being silent as to whether such notice was given or not, and not being required to speak on the subject, the presumption is that the legislature did not disregard the requirement referred to. See 23 Am. & Eng. Enc. Law, art. "Statutes," 199 et seq. Nor could the court considered any admission of the defendants that such notice was not given. "Courts cannot act upon such admissions in determining the constitutionality of statutes. Facts may be admitted by parties to, suits, but the law cannot be made or abrogated by agreement." A statute "cannot be declared to be law or not law at the option of litigants." Board v. Stevenson, 46 N. J. Law, 186; Attorney General v. Rice, 64 Mich. 385, 31 N.W. 203; Happel v. Brethauer, 70 Ill. 166.

2. It was further contended that, at the time the act in question was passed, the legislature had no power to pass such an act, because by an act approved October 19, 1891 (Acts 1890-91, vol. 1, p. 190), it was provided that the general assembly should have no power or authority, by local or special enactment, to grant any charter incorporating any town of less than 2,000 inhabitants (to which class the town of Pinehurst belonged), but that all such charters should be granted by the superior court of the county in which the town was situated; and that, although it was sought to repeal this last-mentioned act by an act approved December 1, 1893 (Acts 1893, p. 65), the repealing act was ineffectual, because not in conformity to article 3, § 7, par. 17, of the constitution (Code, § 5076), which provides that "no law or section of the Code shall be amended or repealed by mere reference to its title, but the amending or repealing act shall distinctly describe the law to be amended or repealed, as well as the alteration to be made." In the repealing act above referred to, the act sought to be repealed, is described by giving its title in full, and the date of its approval; and under the decision in Adam v. Wright, 84 Ga. 720, 11 S.E. 893, this was sufficient. Leave to review that decision having been given, however, and the opinion of the court in that case, in so far as it bears upon this question, being very brief, it may be well to state more fully our views upon the subject.

The main, if not the sole, purpose of the provision of the constitution above quoted, was to provide for the identification of the law sought to be amended or repealed; and undoubtedly the act of 1893, supra, conforms to this purpose. It does not undertake to repeal the act of 1891 by "mere reference to its title." It gives, as we have seen, not only the title. A description of the prior law by its title alone might in many cases be insufficient as a means of identification, because there might be other laws having the same title; and, with no other guide than the title, it might be necessary to search through the legislation of many years in order to find the law sought to be amended or repealed. No such difficulty can arise, however, where both the title and the date are given, unless in the very exceptional case of two acts with the same title, and approved on the same day. Should such a case arise, the failure of the repealing act to make it appear which of the two is intended might well be held to render the description insufficient; but this is not such a case. It will not be contended that in the present instance there is the slightest uncertainty as to what law is referred to, or that there could be any difficulty whatever in finding it.

It has been argued that a further purpose of this provision of the constitution was to require such a description of the law sought to be amended or repealed as that the legislature from the information thus given as to the matter contained in the prior law, would, without having to consult that law itself, be put upon notice of the nature and effect of the proposed legislation. Whether this purpose was in the minds of the framers of the constitution or not, it undoubtedly was not their intention to require that there should be a full or detailed description, such a description as would enable the legislature and the public to understand the provisions of the prior law without examination of that law. Had they so intended, they would have required transcription, and not merely description; for it is not to be supposed that the framers of the constitution contemplated that the legislature would change or repeal laws...