Barge v. Camp

• Decision Date: 16 April 1952
• Docket Number: No. 17801,17801
• Citation: 209 Ga. 38,70 S.E.2d 360
• Parties: BARGE et al. v. CAMP et al.
• Court: Georgia Supreme Court

Page 360

70 S.E.2d 360

209 Ga. 38

BARGE et al. v. CAMP et al.

No. 17801.

Supreme Court of Georgia.

April 16, 1952.

Syllabus by the Court.

1. A citizen and taxpayer of a county or municipality has a pecuniary interest in the sum made up from taxes, and this interest will authorize him to maintain an action to prevent an illegal diversion of tax money or property belonging to the county or municipality.

2. 'While, under the Constitution, the judiciary has the power and duty to declare void legislative acts in violation of the Constitution of the State or of the United States, the conflict between the act and the fundamental laws must be clear and palpable before the act of the coordinate department of the government will be declared unconstitutional. It is the duty of courts to put such construction upon statutes, if possible, as to uphold them and carry them into effect.'

3. 'The General Assembly may make classification for the purposes of legislation and may enact general laws with reference to such classes. Where the basis of classification is that of population, in order to be a general law it is necessary that such classification shall be open to let in any county or city which by any future census might have the stipulated population.' The act approved February 21, 1951, Ga.L. 1951, p. 591, makes such a classification, and is general in terms, and founded upon a proper and legitimate basis of classification, and is general, and not special, legislation, though but a single county may now be embraced within the class affected by it.

4. A general law may be repealed or modified by another general law.

5. The act approved February 21, 1951, Ga.L. 1951, p. 591, and the proposed contract between the Fulton County Commissioners and the City of Atlanta under the terms thereof are authorized by article 7, section 6, paragraph 1 of the Constitution of 1945, Code Ann. § 2-5901, and are not unconstitutional for any reason alleged in the plaintiffs' petition.

6. 'The criticism of a statute duly enacted by the legislature of this State, upon the ground that it is void because contrary to public policy, is without merit.'

7. The petition failed to state a cause of action, and the trial court did not err in sustaining the general demurrers thereto.

W. M. Barge, R. M. Moreland, and Clyde Morris, Jr., as plaintiffs, alleging themselves to be taxpayers, citizens and registered voters of that portion of Fulton County without the corporate limits of the City of Atlanta, brought an equitable petition, against Thomas L. Camp, I. Gloer Haley, R. L. Doyal, J. H. Aldredge, and Jack Towns, Commissioners of Roads and Revenues of Fulton County, A. E. Fuller, County Manager of Fulton County, Mrs. Mabel Abbott MacNeill, Treasurer of Fulton County, G. Neal Ellis, Chief of the Fulton County Police Department, and the City of Atlanta, wherein they attacked the constitutionality of the act of the General Assembly approved February 21, 1951, Ga.L.1951, p. 591, upon various grounds which will be hereinafter referred to, and seek to enjoin the County Commissioners of Fulton County from entering into a contract with the City of Atlanta to supply police services in the unincorporated areas of Fulton County, to prevent them from transferring to the City of Atlanta all of the motor vehicles, crime laboratory equipment, weapons, filing equipment, and other equipment of all kinds used by or assigned to the Police Department in the normal course of its operation, alleged to be of the value of $300,000, and to prevent the payment from the county treasury of approximately $131,000 to the City of Atlanta for such services, and to restrain and enjoin each and all of the defendants from doing anything or committing any act the effect of which will cause the property of the county to be transferred and delivered to the City of Atlanta, and from paying over to the City of Atlanta by check or otherwise any of the funds belonging to and in the treasury of the county, and to declare null and void the resolution attempted by the Fulton County Commissioners, and the proposed contract to be executed by them and the City of Atlanta under the terms of said act.

The act here attacked, which is an amendment to Chapter 23-14 of the Code, and which authorizes all counties of the State to elect or appoint county police, and to levy a tax for the expense thereof, provides substantially: (1) It applies to all counties in which there is located all or the greater part (of the population) of a city or municipality with a population of 300,000 or more, according to the U. S. census of 1950 or any future U. S. census. (2) It declares that police problems in large urban areas are different from those in less populated areas and that it is more economincal to have one large department than two or more small ones. (3) The act shall become effective on June 1, 1951, as to any counties to which it applies according to the U. S. census of 1950; and, as to any other counties to which it shall become effective according to any future census it shall become effective on June 1st of the first calendar year after the year in which such census was taken. In all counties in the latter category the year in which it becomes effective and the first year thereafter shall be substituted for the years 1951 and 1952, respectively, whereever such years are mentioned in the act. (4) The county commissioners of the counties involved shall determine what police services are needed in the unincorporated areas of the county and shall certify to the city involved the needs of the county for police services. (5) The city involved shall furnish to the county such services as are needed at actual cost. (6) Any county to which the act applies desiring to have a county police force after the end of the year in which it is required to contract therefor shall not be authorized to have an independent police department. (7) The city policemen shall have power to make arrests outside the incorporated areas as well as inside. (8) The county shall transfer to the city all of the motor vehicles, crime laboratory equipment, weapons, filing equipment, and other equipment of all kinds used by or assigned to the county police department prior to being discontinued as required by the act.

It is alleged by the plaintiffs that under this act, the proposed contract between the county commissioners and the City of Atlanta pursuant thereto, and the transfer of property and the payment of money by the county authorities to the City of Atlanta thereunder are all unconstitutional, illegal and void because against the public policy of the State, and are violative of and repugnant to the following provisions of the Constitution of the State of Georgia:

Article 1, section 4, paragraph 1, Code Ann. § 2-401, which provides that 'Laws of a general nature shall have uniform operation throughout the State, and no special law shall be enacted in any case for which provision has been made by an existing general law', in that the act by the classification therein contained applies only to Fulton County, and is in conflict with the general law of Chapter 23-14 of the Code providing for County Police, and in conflict with the general law known as the County Purchasing Act of 1941, Ga.L.1941, p. 408, and in conflict with the general law contained in Code, § 91-804 with respect to the manner of disposing of county property.

Article 11, section 1, paragraph 7, Code Ann. § 2-7807, dealing with the method of consolidating county and municipal governments, and article 15, section 1, paragraph 1, Code Ann. § 2-8301, dealing with the right of the General Assembly to provide for uniform systems of county and municipal governments and for optional plans of both, in that the act here merges and consolidates part of the county government with the city government, and accomplishes by piecemeal what these provisions of the Constitution prohibit being done as a whole except in the manner therein provided.

Article 7, section 4, paragraph 1(8), Code Ann. § 2-5701, which authorizes a county to levy a tax to pay county police, and article 7, section 1, paragraph 2, Code Ann. § 2-5402, which provides that 'The General Assembly shall not by vote, resolution or order, grant any donation or grantuity in favor of any person, corporation or association.'

It is further alleged and insisted by counsel in their brief that the act here under attack is against the public policy of the State and that it tends to impair the right of local self-government by the county authority and to centralize governmental power in the City of Atlanta.

It is contended that for all of these reasons plaintiff's as taxpayers and citizens of the unincorporated area of the county, are being deprived of the equal protection of the law and of their rights and property without due process of law in violation of article 1, section 1, paragraphs 1-3, Code Ann. §§ 2-101 to 2-103, and of the Fourteenth Amendment to the Constitution of the United States, Code, § 1-815.

To this petition as amended the defendants, except R. L. Doyal, interposed their general demurrers upon the grounds that the petition stated no cause of action; that the alleged injury to the plaintiffs is vague, indefinite, and shows no damage, loss or substantial injury to the plaintiffs' personal or property rights; that the petition is premature because any damage to the plaintiffs is speculative, apprehensive and remote; that the plaintiffs are not as a matter of law entitled to any particular police protection, and the question of what protection will be afforded the unincorporated areas of Fulton County is a matter for the county commissioners to determine, and their discretion cannot be controlled by the court; that it affirmatively appears from the petition that all of the acts sought to be restrained can be legally done by the defendants under a contract with the City of Atlanta pursuant to ...