Cain v. Smith

• Decision Date: 08 April 1903
• Citation: 44 S.E. 5,117 Ga. 902
• Parties: CAIN et al. v. SMITH et al.
• Court: Georgia Supreme Court

44 S.E. 5

117 Ga. 902

CAIN et al. v. SMITH et al.

Supreme Court of Georgia

April 8, 1903

Syllabus by the Court.

1. The power of legislation may be taken away from the lawmaking body by the Constitution, as well by implication as by express prohibition, and prohibitions against legislation which result by implication are equally as effectual as when they are express, and are to be regarded in the one case no less than in the other.

2. It is to be necessarily implied, from the provisions of the Constitution in relation to the incurring of indebtedness by municipalities, that the General Assembly has not the power to provide for the submission of such questions to the qualified voters in connection with other issues entirely foreign to the matter of the debt sought to be incurred.

3. The question as to the establishment of the enterprise or project for which the debt is to be incurred may be submitted in connection with the question of incurring the debt, but the better practice, even in such cases, is to submit these questions separately.

4. If a statute is valid in part and in part invalid, and the objectionable portion is so connected with the general scheme of the statute that, should it be stricken out, effect cannot be given to the legislative intent, the whole statute must fall.

5. Applying the principles above laid down to the facts of the present case, the court erred in not granting the injunction prayed for.

Error from Superior Court, De Kalb County; L. S. Roan, Judge.

Action by T. R. Cain and others against C. W. Smith and others. Judgment for defendants, and plaintiffs bring error. Reversed.

King Spalding & Little and Abbott & Goree, for plaintiffs in error.

Arnold & Arnold, for defendants in error.

COBB J.

On December 2, 1902, an act was approved providing for a new charter for the town of Edgewood. Acts 1902, p. 409. The first section of the act repealed the act of 1898 (Acts 1898 p. 175) incorporating the town. The second section declared "that the city of Edgewood, in the county of De Kalb be, and the same is, hereby incorporated as a city under the name of city of Edgewood." The third section defines the corporate limits of the city, and within the limits thus prescribed is embraced more territory than was embraced within the corporate limits of the town. The following 13 sections of the act confer upon the city authorities many of the usual powers granted to municipal corporations, provide for a form of government, etc. The seventeenth and eighteenth sections relate to the establishment of a system of public instruction in the city. The nineteenth section authorizes the city to issue bonds, not to exceed $10,000 in amount, the proceeds to be used for the purpose of erecting school buildings and purchasing sites for the same. The twentieth section extends the corporate limits over certain territory for police purposes only. The twenty-first section is in the following words: "This act shall go into effect and become operative upon its adoption by a two thirds vote of the qualified voters of said city of Edgewood, at a special election to be held for that purpose on the first Wednesday in January, 1903, which election shall be held in the same manner and under the same rules as elections for mayor and aldermen under this act; provided, the notice of the intentions to hold said election has been given as required by section 377 of the Code of Georgia, 1895 (volume one); and in said special election those voting for the adoption or ratification of this act shall have upon their ballots the words 'For bonds and adoption,' and those voting against the adoption or ratification of this act shall have the words 'Against bonds and adoption.' In the event that two thirds of the qualified voters of said city of Edgewood shall vote in favor of the adoption of this act, it shall, upon the certificate of such result by the election managers, go into effect and become operative. If this bill shall fail of adoption at the first election, it may be again submitted to a vote at another election, to be held one year from the first election, and thereafter annually if recommended by the mayor and council of the town of Edgewood." An election was held at the time fixed in the section of the charter above quoted, and it is claimed that two-thirds of the qualified voters embraced within the territory described in the act as the city of Edgewood voted "For bonds and adoption." Certain persons who resided within the limits of the territory above referred to, and would be taxpayers and citizens of the city of Edgewood if the act was adopted, brought their petition praying that the persons claiming to have been elected as mayor and aldermen at the election be enjoined from carrying the act into effect. The judge refused to grant the injunction prayed for, and this ruling is assigned as error.

The Constitution provides that local laws having for their object the establishment of public schools within the limits of municipal corporations shall not "take effect until the same shall have been submitted to a vote of the qualified voters in each county or municipal corporation, and approved by a two-thirds vote of persons qualified to vote at such election"; the General Assembly having authority to prescribe who shall vote on such question. Civ. Code, § 5909. The Constitution also provides that no municipal corporation shall incur any new debt, except for a temporary loan to supply casual deficiencies of revenue, not to exceed one-fifth of 1 per cent. of the assessed value of taxable property therein, "without the assent of two-thirds of the qualified voters thereof, at an election for that purpose, to be held as may be prescribed by law." Id. § 5893. The General Assembly has power to create municipal corporations, and there is no restriction in the Constitution upon this power. The General Assembly may incorporate a town or city by a legislative act simply declaring such town or city to be a municipal corporation. It may declare that the territory embraced within given limits shall be a city or town upon certain conditions named in the act, as that a certain proportion of the people embraced within such territory shall give their assent to the creation of the corporation. If the General Assembly, in its discretion, sees proper to submit this question to the people to be affected, then the number who shall give their assent is also purely within the discretion of the General Assembly. It will thus be seen that the General Assembly has power to authorize a municipal corporation to have an election on the question of the establishment of public schools, to have an election on the subject of incurring a debt, and also to authorize the persons to be affected by the creation of the municipal corporation to determine whether the corporation shall come into existence. The controlling question in the present case is whether the General Assembly has authority to provide that the qualified voters within a given territory shall pass upon all of these questions at one time. Has the General Assembly authority to provide...