Bleckley v. Vickers, 25388

• Decision Date: 29 September 1969
• Docket Number: No. 25388,25388
• Citation: 225 Ga. 593,170 S.E.2d 695
• Parties: L. M. BLECKLEY et al., v. Robert H. VICKERS, Ordinary et al.
• Court: Georgia Supreme Court

Page 695

170 S.E.2d 695

225 Ga. 593

L. M. BLECKLEY et al., v. Robert H. VICKERS, Ordinary et al.

No. 25388.

Supreme Court of Georgia.

Sept. 29, 1969.

John G. Davis, Clayton, for appellants.

V. D. Stockton, Knox Bynum, Clayton, Heard & Leverett, and L. Clifford Adams, Jr., Elberton, for appellees.

Syllabus Opinion by the Court

UNDERCOFLER, Justice.

L. M. Bleckley and four others filed suit in the Superior Court of Rabun County against Robert H. Vickers as ordinary of said county. The petition alleges that they are citizens, voters and taxpayers of Rabun County and are particularly interested in the political and financial affairs of said county; that the defendant is the duly elected and qualified ordinary of said county for a term of four years beginning January 1, 1969; that the defendant was elected to administer the government of Rabun County including the matters of roads and revenues; and that during the 1969 session of the Georgia General Assembly a local bill was finally passed which provided for a board of commissioners for Rabun County, Georgia. Various constitutional attacks were made on the validity of this bill which will be dealt with in the opinion. The petitioners allege that unless the defendant is enjoined he will call the election as provided for in the 1969 act (GalL.1969, p. 2397); that if the call for an election is made pursuant to the act, the plaintiffs will be deprived of any voice or expression of choice by ballot as to whether or not they desire to change the system or form of government for the county; that they have no adequate remedy at law and will suffer irreparable injury and damage if an election is held pursuant to the act. The petition sought to temporarily and permanently enjoin the holding of the election was provided in the act and for general relief.

An intervention was allowed on behalf of several interested citizens who alleged that they were entitled to intervene as a matter of right under Code Ann. § 81A-124(a) because their interest is or may be inadequately represented since the plaintiffs are opposed to the establishment of a board of commissioners and now seek to prevent the election of members in the manner provided by law; and that the defendant is presently the ordinary of said county and has opposed the establishment of a board of commissioners. By order of court the intervention was allowed.

After hearing evidence, the trial judge denied the application for interlocutory and permanent injunction.

The appeal is from this judgment. Held:

1. The petition alleges that notice of intention to introduce local legislation was published in the newspaper on January 2, 9, 16 and 23, 1969; that subsequent to said publication, Senate Bill No. 112 was introduced in the Senate on February 11, 1969, which created a Board of Commissioners for Rabun County and named certain persons to hold such offices initially; and that this bill was passed by the House but vetoed by the Governor. The petition further alleged that at later time during the 1969 session, Senate Bill No. 232 (Ga.L.1969, p. 2397) was introduced in the Senate without any advertisement or publication of intent to introduce such bill relating to local legislation contrary to Article III, Section VII, Paragraph XV of the Constitution of the State of Georgia (Code Ann. §§ 2-1915 and 47-801); that Senate Bill No. 232 was passed by the Senate and House and approved by the Governor; that said bill is invalid because of the failure to properly advertise and published any notice of intention to introduce such local legislation.

The following notice of intention to introduce local legislation was published on January 2, 9, 16, and 23, 1969: 'Notice is hereby given that there will be introduced in the regular session of the General Assembly of Georgia in 1969 a local bill to create a County Commission form of Government for Rabun County; to provide for a Board of Commissioners of Roads and Revenues; to prescribe all matters relative thereto; to abolish conflicting laws and for other purposes.'

This notice was a part of the enrolled bill. Ga.L.1969, pp. 2397, 2403. In Smith v. McMichael, 203 Ga. 74(4), 45 S.E.2d 431, 435-436, it was held: '(W)hen the enrollment of any local or special bill has incorporated therein the required proof of notice, and after it has been properly signed and filed with the Secretary of State, it will not only impute absolute verity as to its contents, but it will also conclusively show upon its face its validity with respect to the constitutional requirements as to proof of notice; whereas, if such enrollment fails to show the required proof of notice, it is upon its face invalid. It appears to be the manifest intention of the new provision of the constitution that the bill as finally enrolled as the statute shall speak for itself, and that no presumptions and no sort of evidence shall be allowed to speak in lieu of what the enrolled act says for itself.' For other cases so holding, see Walker Electrical Co. v. Walton, 203 Ga. 246, 252, 46 S.E.2d 184; Gay v. Laurens County, 213 Ga. 518, 100 S.E.2d 271. See also, Brown v. Clower, 225 Ga. 165, 166 S.E.2d 363.

There is no merit in this enumeration of error.

2. The petition alleges that Senate Bill No. 232 (Ga.L.1969, p. 2397) is violative of Article VI, Section XVII Paragraph XI of the Constitution of Georgia (Code Ann. § 2-5201) which provides that: 'The General Assembly shall have power to provide for the creation of county commissioners in such counties as may require them, and to define their duties.' for the reason that there has been no cause shown that a board of commissioners for Rabun County is required by the qualified voters of said county.

This provision of the 1945 Constitution was contained in the Constitutions of 1868 and 1877.

This court in Waller v. Perkins, 52 Ga. 233, 239 (1874) in dealing with the same provision of the Constitution of 1868 held: 'There is no limit on this power. Nor does the constitution point out how these officers shall be chosen. It leaves the whole matter to the discretion of the legislature. In other words, the people have not seen fit to restrict themselves to the mode of the choice of such officers' For similar rulings see Churchill v. Walker, 68 Ga. 681, 686; Bowen v. Lewis, 201 Ga. 487, 490, 40 S.E.2d 80; Hutchins v. Candler, 209 Ga. 415, 418, 73 S.E.2d 191.

It follows that there is no limit...