Aliotta v. Gilreath
| Decision Date | 09 April 1970 |
| Docket Number | 25677,Nos. 25676,s. 25676 |
| Citation | 226 Ga. 263,174 S.E.2d 403 |
| Parties | Frank A. ALIOTTA et al., Aldermen, v. B. Arthur GILREATH, Mayor et al. B. Arthur GILREATH, Mayor et al. v. Frank A. ALIOTTA et al., Aldermen. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. The statutory requirement that in a proceeding involving the validity of a municipal ordinance, the municipality shall be made a party, is not applicable to this action where one faction of a municipal governing body is seeking a declaratory judgment and other relief against the other faction, concerning the proper method of passing an ordinance and voting on other matters.
2. The municipal government of the Town of Thunderbolt is vested in the mayor and six aldermen, and in the absence of any provision of the city charter fixing a different quorum, a majority of four votes is required to enact a lawful ordinance. It was not error to enjoin the passage of any ordinance unless concurred in by the vote of four aldermen, or the mayor and three aldermen.
3. Under the city charter, the mayor is entitled to vote only in the election of officers and where there is a tie vote.
4. In the absence of any statutory authority for the calling of a special election, the trial judge correctly held that the only method of filling the vacancy in the office of alderman is an election by the mayor and remaining aldermen, as provided in the city charter.
Aaron Kravitch, Lionel E. Drew, Jr., Savannah, for appellants.
Smith, Cook & Portman, Barnard M. Portman, W. Lance Smith, Savannah, for appellees.
The mayor and two of the aldermen of the Town of Thunderbolt brought an action for declaratory judgment and other relief against three other aldermen. The controversy arose because of the death of one of the six aldermen of the town, and the failure of a majority of the mayor and remaining aldermen to agree on the filling of the vacancy, and their dispute concerning the attempted dismissal of the chief of police.
The defendants filed an appeal from the judgment which declared the rights of parties, enjoined the defendants from passing any ordinance unless concurred in by the vote of four aldermen, or the mayor and three aldermen, and ordered certain action by the parties in the nature of a mandamus absolute. The plaintiffs filed a cross appeal, enumerating as error the refusal of the judge to order a special election by the voters of the Town of Thunderbolt to fill the vacant office of alderman.
1. The defendants assert that the action does not comply with Ga.L.1945, pp. 137, 138 (Code Ann. § 110-1106), which requires that: 'In any proceeding involving the validity of a municipal ordinance or franchise, such municipality shall be made a party and shall be entitled to be heard as a party.' The purpose of this statute is to allow a municipality to be heard where private parties question the validity of a municipal ordinance, and it does not apply to a situation where the members of the governing body of a municipality are in dispute as to the proper method of passing a valid ordinance under the city charter, and all of the members of the governing body of the municipality are parties.
The parties appear to be in hopeless conflict as to the meaning of the charter provisions of the Town of Thunderbolt, and as to the actions which they may legally take under the charter, and the case was a proper one for declaratory judgment.
2. The trial judge in his order declared that no lawful ordinance can be enacted by the Mayor and Aldermen of the Town of Thunderbolt unless it is voted for by at least four aldermen, or, in the event of a tie, by three aldermen and the mayor, and the attempt of the defendants to enact an ordinance which makes three members a quorum is void and of no effect.
Section 3 of the Act of 1921 (Ga.L.1921, pp. 1122, 1125), Ga.L.1966, p. 2883, provides that 'the municipal government of the Town of Thunderbolt shall be vested in a mayor and six aldermen * * *.' Section 5 (Ga.L.1921, p. 1126) provides that in case of a vacancy in the office of the mayor, aldermen, or clerk of council, 'his successor shall be elected by a majority vote of the remaining Mayor and Aldermen.' Section 14 (Ga.L.1921, pp. 1130-1131) provides that the mayor 'shall have the right to vote in elections for officers, * * * and upon all other questions before said body where there is a tie vote, * * *.'
There is no specific provision of the charter of the town fixing the number of votes required to pass a valid ordinance. The trial judge applied the rule of statutory construction in Code § 102-102(5), as follows: 'A joint authority given to any number of persons, or officers, may be executed by a majority of them, unless it is otherwise declared.' He held that it required a majority of those to whom the power to govern was given to pass a lawful ordinance, which would be four aldermen, or in the event of a tie, three aldermen and the Mayor. The trial court was correct in this...
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...199 N.W. 451 (1924)). The interpretation by the Attorney General has support in the case law of other states. In Aliotta v. Gilreath, 226 Ga. 263, 174 S.E.2d 403 (1970), the Supreme Court of Georgia interpreted a statute that provided "a joint authority given to any number of persons, or of......
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