City of Chamblee v. Village of North Atlanta
| Decision Date | 08 January 1962 |
| Docket Number | No. 21459,21459 |
| Citation | 123 S.E.2d 663,217 Ga. 517 |
| Parties | CITY OF CHAMBLEE v. VILLAGE OF NORTH ATLANTA. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. The charter of the Village of North Atlanta is valid as against the attack here made upon it.
2. The act approved February 15, 1952 (Ga.L.1952, p. 2618), purporting to annex to the City of Chamblee a portion of the territory located within the corporate limits of the Village of North Atlanta, refers to more than one subject matter, and contains matter different from that expressed in its title, and thus violates article 3, section 7, paragraph 8, of the 1945 Georgia Constitution (Code Ann. § 2-1908).
3. The instant suit is not barred by lapse of time, either on account of laches or dismissal of a previous suit pursuant to Ga.L.1953, Nov. Sess., p. 342 (Code Ann. § 3-512).
4. Accordingly, the trial judge properly overruled the City of Chamblee's demurrers to the Village of North Atlanta's petition and sustained the Village of North Atlanta's demurrers to and motion to strike the City of Chamblee's answer; and there being no issuable defense, he properly entered judgment on the pleadings in favor of the Village of North Atlanta.
Carl T. Hudgins, Decatur, for plaintiff in error.
T. B. Higdon and Wm. F. Lozier, Atlanta, Eugene Cook, Atty. Gen., for defendant in error.
The Village of North Atlanta brought suit against the City of Chamblee following the enactment of legislation (Ga.L.1952, p. 2618) purporting to annex additional territory to the City of Chamblee. North Atlanta attacked the constitutionality of that legislation and sought a declaration that the territory in question lay within its corporate limits instead of those of Chamblee, and also sought an injunction against Chamblee's exercise of any municipal jurisdiction over that area. To the petition as amended Chamblee interposed numerous demurrers and an answer. Asserting several grounds of defense, Chamblee's answer denied the validity of North Atlanta's charter and its claim to the territory in dispute and prayed for a decree that North Atlanta had no legal existence whatever and that Chamblee, not North Atlanta, had jurisdiction over the area in question. North Atlanta subsequently demurred and moved to strike that answer. The judge of the Superior Court of DeKalb County overruled Chamblee's demurrers, sustained those of North Atlanta, struck Chamblee's answer, and rendered judgment on the pleadings in favor of North Atlanta. Error is assigned here upon those rulings.
The issues of law fall into these categories: (1) the validity of North Atlanta's charter; (2) the constitutionality of the 1952 annexation statute (Ga.L.1952, p. 2618); and (3) the lapse of time in bringing the present suit. These issues reoccur in Chamblee's answer and demurrers and in North Atlanta's demurrer and motion to strike Chamblee's answer. We shall treat them in the order enumerated.
1. By attacking the validity of North Atlanta's charter, Chamblee challenged North Atlanta's right, as plaintiff, to maintain this suit. The attacks were directed at alleged discrepancies in the proceedings of North Atlanta's incorporation in 1924 and at the constitutionality of the incorporation statute. They urge that the requirements of the act of 1872 (Ga.L.1872, pp. 16-23) and section 685 of the Code of 1895 () were not complied with, and that Georgia Laws 1874, pp. 44-46, as well as the above-mentioned act of 1872 and sections 685, 686 and 687 of the Code of 1895, were unconstitutional; and also that the description of the territory included in the charter was void.
(a) As to compliance with the requirements of the act of 1872, the alleged discrepancies include such matters as lack of required freeholders living in the area of incorporation, insufficient number of applicants for the charter, and an incorrect date. Attack on North Atlanta's charter on the basis of these features is foreclosed by MacDonell v. Village of North Atlanta, 216 Ga. 559(2), 118 S.E.2d 460. There, this court ruled that such charter having been granted by the Superior Court of DeKalb County on January 15, 1924, 'any attempt to go behind this charter as to alleged discrepancies in dates and the failure to meet conditions precedent to the issuance of the charter can not be considered at this late date, and no collateral attack will be allowed [citing Code §§ 2-8005 and 3-702 and decisions of this court].'
(b) The objections urged as to non-compliance with a specified section of the Code of 1895 likewise can not be considered at this late date. The reasoning of MacDonell v. Village of North Atlanta, 216 Ga. 559, 118 S.E.2d 460, supra, quoted above, also applies to the 1895 Code.
(c) As to the constitutionality of the acts of 1872 (Ga.L.1872, pp. 16-23) and 1874 (Ga.L.1874, p. 44-46), this court ruled in the MacDonell case, 216 Ga. 559(1), 118 S.E.2d 460, supra, that North Atlanta was incorporated under authority of the Code of 1895, §§ 685 through 710, and thus, the attack upon North Atlanta's charter based on the alleged unconstitutionality of these acts is not meritorious. Therefore, the grounds raised here as to the constitutionality of the acts of 1872 and 1874 can not be considered.
(d) The instant case, however, goes a step farther than the MacDonell case, 216 Ga. 559, 118 S.E.2d 460, supra, and attacks the Code of 1895 itself, particularly sections 685, 686 and 687. It is contended that these sections violate (1) the due process clauses of the federal and state constitutions because of their lack of provision for contesting the incorporation proceedings, hearing objections, contesting the election provided for therein, and appealing from the order of incorporation; and (2) that they violate the equal protection guaranties because of exclusion of females as petitioners for incorporation.
These attacks cannot be considered. The rule is well established that, in order to raise constitutional questions, a party must show not only that the alleged unconstitutional feature injures him and deprives him of a constitutional right but he must establish that he himself possessed the right allegedly violated. He must be within the class of persons affected by the statute objected to.
Chamblee, not possessing any such rights as it claims the above sections violate, does not have standing to raise these constitutional objections to the incorporation of North Atlanta. Any such rights were possessed, not by Chamblee, but by private individuals who resided in the area, in this instance (1) those citizens who may have desired to oppose the incorporation, and (2) those female citizens who may have wished to join as applicants to obtain the incorporation.
The fact that sections 685 through 710 of the Code of 1895 were not later codified in the Code of 1910, which was in effect in 1924, did not result in their repeal. Cf. McCaffrey v. State, 183 Ga. 827, 831, 189 S.E. 825; Newcomb v. Niskey's Lake, 190 Ga. 565, 569, 10 S.E.2d 51. Nothing appears in the Code of 1910 to warrant or suggest repeal by implication. Repeal did not occur until express action by the legislature (Ga.L.1939, p. 329), and this did not operate retroactively.
(e) The attack upon the description of the territory appearing in North Atlanta's charter proceedings likwise fails because of the MacDonell case, 216 Ga. 559, 118 S.E.2d 460, supra. The same description was held valid there against the identical objections made here.
Thus, North Atlanta's charter is not subject to the attacks made upon it in the instant case and therefore, as a legal entity, it is a proper party plaintiff here.
2. We come now to the basis of North Atlanta's cause of action against Chamblee, the alleged unconstitutionality of the 1952 annexation statute (Ga.L.1952, p. 2618). North Atlanta, among other grounds, contends that this act violates article 3, section 7, paragraph 8, of the Constitution of 1945 (Code Ann. § 2-1908) because it refers to more than one subject matter and contains matter different from that expressed in the title.
These issues are likewise controlled by a recent decision of this court, Schneider v. City of Folkston, 207 Ga. 434, 62 S.E.2d 177.
In that case the controversy was over legislation purportedly annexing certain territory into the corporate limits of the City of Folkston by removing it from the Town of Homelant. The grounds of attack there were the same as here--that the act referred to more than one subject matter, and contained matter different from that expressed in the title. In that act the title was merely '* * * to amend the charter of the City of Folkston * * * [giving its county and state]; repealing all existing laws in conflict with the same; and for other purposes.' Laws 1950, p. 2373. Yet, in the body of the statute, the terms purported to add to Folkston territory which, as appeared upon the face of the statute, lay within the corporate limits of Homelant. Upon review this court held that 'It is not competent for the General Assembly in one...
To continue reading
Request your trial
-
Goodwyn v. Carter
...has a right to refile within six months from the automatic dismissal as the corrective remedy. City of Chamblee v. Village of North Atlanta, 217 Ga. 517, 522-523(3), 123 S.E.2d 663 (1962). Thus, under both OCGA §§ 9-2-61 and 9-11-41(e), the case may be refiled within six months as a matter ......
-
Harris v. U.S. Fidelity & Guaranty Co., 50027
...above are statutes of limitation as to the cause of action or the right to rebring a dismissed complaint. See, City of Chamblee v. Village of North Atlanta, 217 Ga. 517, 522(3, b), 123 S.E.2d 633. See, Allstate Ins. Co. v. Dobbs, 134 Ga.App. 225, 213 S.E.2d 915, decided March 10, 2. Where, ......
-
Stewart v. Davidson
...the act 'affects the private rights of the citizens and taxpayers of Fulton and DeKalb Counties.' In City of Chamblee v. Village of North Atlanta, 217 Ga. 517, 520(d), 123 S.E.2d 663, 666, this court held as follows: 'The rule is well established that, in order to raise constitutional quest......
-
Kraft v. Forest Park Realty & Ins. Co.
...opinion that, nevertheless, the situation is controlled by Rumph v. Truelove, 66 Ga. 480(1), followed in City of Chamblee v. Village of North Atlanta, 217 Ga. 517, 523, 123 S.E.2d 663, and Dowe v. Debus Mfg. Co., 52 Ga.App. 713, 184 S.E. The rule was referred to in Rountree v. Key, 71 Ga. 2......
-
Georgia's Constitutional Scheme for State Appellate Jurisdiction
...12. Prince v. Thompson, 215 Ga. 860, 861, 113 S.E.2d 772, 723 (1960). 13. City of Chamblee v. Village of North Atlanta, 217 Ga. 517, 520, 123 S.E.2d 663 14. Wright v. State, 216 Ga. 228, 115 S.E.2d 331 (1960). 15. Pollard v. State, 229 Ga. 698, 194 S.E.2d 107 (1972). 16. See id. at 698, 194......