Bracewell v. Warnock, 17580

• Decision Date: 09 October 1951
• Docket Number: No. 17580,17580
• Citation: 67 S.E.2d 114,208 Ga. 388
• Parties: BRACEWELL et al. v. WARNOCK, Mayor, et al.
• Court: Georgia Supreme Court

Page 114

67 S.E.2d 114

208 Ga. 388

BRACEWELL et al. v. WARNOCK, Mayor, et al.

No. 17580.

Supreme Court of Georgia.

Oct. 9, 1951.

Syllabus by the Court.

1. The plaintiffs as citizens and taxpayers were entitled to challenge the constitutionality of the act purporting to incorporate the Town of East Dublin, Ga.L.1951, p. 2921.

2. The provision of art. 3, sec. 7, par. 15 of the Constitution of 1945, Code Ann.Supp. § 2-1915, as to publication of notice of intent to introduce a local bill in the General Assembly, requires that the notice be published at least once a week during three separate weeks, and the first publication must not be more than sixty days before the bill is introduced, and the local bill cannot be introduced during the week embraced in the third publication.

3. The doctrine of argumentum ab inconvenienti has no application in this case.

4. The bill purporting to incorporate the Town of East Dublin, Ga.L.1951, p. 2921, having been introduced during the third week of the publication of notice of intent to introduce, is invalid.

R. I. Stephens, E. L. Stephens, Sr., Dublin, for plaintiffs in error.

W. W. Larsen, Harold Ward, Dublin, E. L. Rowland, Wrightsville, for defendants in error.

ALMAND, Justice.

At the 1951 session of the General Assembly, a local bill was introduced, having for its purpose the incorporation of the Town of East Dublin. The bill was introduced on February 7, 1951, and after passage by the General Assembly was approved by the Governor on February 21, 1951. Ga.L.1951, p. 2921. Attached to the enrolled act was an affidavit of the authors of the bill, dated February 6, 1951, that notice of their intention to introduce the bill in question, dated January 17, 1951, was published in the Dublin Courier Herald, a publication which the Sheriff of Laurens County used for his official advertisements, on January 27, February 3, and February 5, 1951. Pursuant to the provisions of this act creating the Town of East Dublin, there was held an election, in which a majority of the voters in the area affected voted to incorporate, and a second election, in which a mayor and members of council were chosen for the Town of East Dublin.

N. G. Bracewell and others, alleging themselves to be citizens of, owners of real and personal property, and doing business within, the territorial limits of the Town of East Dublin, brought their equitable petition against the individuals constituting the mayor and council, wherein they alleged that the act creating the Town of East Dublin was unconstitutional and void, in that said act was not introduced in conformity with the mandatory provisions of art. 3, sec. 7, par. 15 of the Constitution of 1945, Code Ann. § 2-1915, in that the enrolled act shows on its face that notice of intention to introduce the local bill was not published 'once a week for three weeks during a period of sixty days immediately preceding its introduction into the General Assembly.' The prayers were that the defendants, in the capacities of mayor and aldermen, be restrained and enjoined from attempting to carry out the powers granted to them by the charter, and that the purported charter creating the Town of East Dublin be vacated and said act of 1951 be declared void and unconstitutional.

On the hearing for interlocutory injunction, in addition to the facts set out above, several of the defendants testified that though they, the mayor and council, had not actually levied or attempted to levy any ad valorem taxes, or assessed any occupational taxes, it was their purpose to carry out and enforce the provisions of the charter and to exercise the powers and duties included in the charter.

The trial judge denied the prayers of the plaintiff, and the case is here on exceptions to that order.

1. Under the act purporting to incorporate the Town of East Dublin, Ga.L.1951, p. 2921, the mayor and council were authorized to borrow money, issue bonds and other evidences of debt for public purposes, to assess and collect ad valorem taxes on all property within the town limits, and to tax or license all kinds of businesses, trades, or professions. The undisputed evidence showing that the petitioners are citizens and taxpayers within the limits of the Town of East Dublin, and own property and carry on businesses therein, and that it is the purpose of the defendants, as the elected officials of the town, to carry out the powers conferred upon them by the charter, the petitioners were entitled to challenge the constitutionality of the charter under which the defendant officials proposed to exercise the authority granted them. Mayor, etc., of City of Americus v. Perry, 114 Ga. 871(6), 40 S.E. 1004, 57 L.R.A. 230; Gregory v. Quarles, 172 Ga. 45(2), 157 S.E. 306; National Linen Service Corp. v. City of Albany, 177 Ga. 81, 169 S.E. 894; Holcombe v. Georgia Milk Producers Confederation, 188 Ga. 358(1), 3 S.E.2d 705; City of Valdosta v. Singleton, 197 Ga. 194(2), 28 S.E.2d 759; Smith v. McMichael, 203 Ga. 74(1), 45 S.E.2d 431.

2. Art. 3, sec. 7, par. 15 of the Constitution of 1945, Code Ann. 2-1915, provides that no local bill shall be...