City of Macon v. Hughes

• Decision Date: 12 May 1900
• Parties: MAYOR, ETC., OF CITY OF MACON v. HUGHES et al.
• Court: Georgia Supreme Court

36 S.E. 247

110 Ga. 795

MAYOR, ETC., OF CITY OF MACON v. HUGHES et al.

Supreme Court of Georgia

May 12, 1900

Syllabus by the Court.

1. Where an act was entitled "An act to amend the charter of" a named city by incorporating as a part thereof certain described contiguous territory, to define the duties and powers of the municipal authorities in the annexed territory, "and for other purposes," any legislation could constitutionally be embodied in the act which was germane to the general subject of amending the charter of the city.

2. Equity will enjoin municipal authorities from holding an election to determine whether a given territory shall be annexed to the city, when the ordinance calling the election was plainly ultra vires, and there was no warrant in law for holding the election.

Error from superior court, Bibb county; W. H. Felton, Jr., Judge.

Suit by D. G. Hughes and others against the mayor and counsel of the city of Macon. Judgment for plaintiffs, and defendants bring error. Affirmed.

Park & Gerdine, Jere Moore, Minter Wimberly, Hall & Wimberly, John P. Ross, M. W. Harris, and M. P. Callaway, for plaintiffs in error.

M. G Bayne, Hardeman, Davis & Turner, Guerry & Hall, and Dessau Harris & Birch, for defendants in error.

COBB J.

1. On November 21, 1893, the general assembly passed an act creating a new charter for the city of Macon. Acts 1893, p 240. The eighty-seventh section of that act declared "that territory contiguous to the corporate limits of the city of Macon may be incorporated as a part of said city by the consent of the mayor and council of the city of Macon and of a majority of the persons residing in the said territory qualified by law to vote for members of the general assembly of this state," and provided for the manner in which the election should be conducted and the result declared, and the terms upon which the territory should be annexed, if the result of the election was in favor of annexation. In 1897 the general assembly passed an act having the following title: "An act to amend the charter of the city of Macon by incorporating as a part of said city a portion of the territory of North Macon, the same being a portion of the lands recently connected with the city by the Spring street bridge crossing the Ocmulgee river, and containing about ___ acres, and more fully described by metes and bounds in said act, to define the powers and duties of said mayor and council in said territory so incorporated, and for other purposes." Acts 1897, p. 271. The first section of that act provided for the incorporation within the limits of the city of Macon of the territory referred to in the title. The second section provided that it should be unlawful to sell liquor within the territory thus brought within the limits of the city. The third section declared "that the charter of the city of Macon appearing in the act approved November 21, 1893, be amended as follows, to wit: That section eighty-seven of said act, which reads as follows, be taken from said act, and said entire section be, and the same is, hereby repealed,"--the section thus declared to be repealed being quoted in full. The authorities of the city of Macon have passed an ordinance providing for an election under the eighty-seventh section of the act of 1893, and certain property owners of the territory sought to be annexed filed a petition praying that the election be enjoined. Certain persons who are residents and taxpayers of the city of Macon, and who are owners of property within the territory sought to be annexed, were made parties to the petition, and united in the prayers of the original petition. The judge, after a hearing, granted the injunction, and error is assigned upon this ruling.

One ground upon which the injunction was sought was that the mayor and council of the city of Macon had no authority to call the election, for the reason that the eighty-seventh section of the act of 1893 was no longer of force, having been in terms repealed by the act of 1897. The reply of the defendants to this position was that the third section of the act of 1897 was inoperative, for the reason that it contained matter different from what was expressed in the title of the act. Is there any language in the title of the act of 1897 which would be sufficient to authorize the incorporation into the act of the third section therein contained? This question is answered in the affirmative by the application to the facts of this case of the former rulings of this court. The constitutional provision prohibiting the passage of laws containing matter different from what is expressed in the title appears for the first time in the constitution of 1798 in the following language: "Nor shall any law or ordinance pass containing matter different from what is expressed in the title thereof." Const. 1798, art. 1, § 17; Cobb's Dig. p. 1114. In Mayor, etc., of Savannah v. State, 4 Ga. 26, 38, Judge Lumpkin refers to the history of this clause in the following language: "I would observe that the traditionary history of this clause is that it was inserted in the constitution of 1798 at the instance of Gen. James Jackson, and that its necessity was suggested by the 'Yazoo Act.' That memorable measure of the 17th of January, 1795, as is well known, was smuggled through the legislature, under the caption of 'an act for the payment of the late state troops,' and a declaration in its title of the right of the state to the unappropriated territory thereof 'for the protection and support of its frontier settlements."' In Martin v Broach, 6 Ga. 21, it was held: "Where the title specifies some of the objects for which the statute was passed, and contains this general clause, 'and for other purposes therein contained,' portions of the act not specially indicated in the title are, nevertheless, good, under this general clause." The constitutionality of two acts of the general assembly, one of them approved December 15, 1810, was called in question in that case. The title of the act of 1810 was in the following words: "An act for the more effectually securing the probate of wills, limiting the times for executors to qualify and widows to make their elections, and for other purposes therein mentioned." Prince's Dig. p. 239. Section 8 of the act provided that the court of ordinary should have authority, upon complaint made by the security of any guardian or administrator that his principal was mismanaging his estate, to pass an order requiring such administrator or guardian to show cause why the security should not be discharged, and the administrator or guardian compelled to give new security, or their administration or guardianship revoked; and that upon the revocation of such administration, or upon the revocation of any letters testamentary as provided by law, and granting administration de bonis non, suits brought by or against the former administrator should not for this cause be abated, but, the removal of such administrator or executor being suggested of record, a scire facias might issue to make the administrator de bonis non a party to the record. It was held that the title was sufficiently broad to authorize the enactment of the section just referred to. In reference to this clause of the constitution, Judge Lumpkin in the opinion says: "This clause does not require that the title should contain a synopsis of the law, but that the act should contain no matter variant from the title. Now, the titles to each of these statutes, after enumerating certain objects for which they were passed, adds, 'and for other purposes therein mentioned.' This was sufficient to prevent surprise,--to induce the members either to call for the reading of the whole of the bill, or to look into it, during its progress through the legislature." There was nothing in the title of the act of 1810 which in terms put any one on notice that legislation in reference to administrators or guardians was in any way contemplated. The language of the title indicated that the legislation proposed was to refer to wills, executors, and the rights of widows to make an election. The eighth section related to a subject-matter entirely different from any thing indicated by the title, and in order to uphold this section of the act it was absolutely necessary that the words, "and for other purposes," should be given sufficient significance to include the matter dealt with in that section. The court, as has been seen, so held. It is to be noted that at the time of the passage of the act of 1810 there was no provision in the constitution prohibiting the passage of laws relating to more than one subject-matter. As many different subjects--matter could be embraced in one bill as the general assembly desired, provided the title of the act was sufficiently broad to embrace them. The effect, therefore, of the decision just referred to was to hold that if one object of legislation was stated in the title, and this was followed by the words, "and for other purposes," the incorporation into the body of the act of any law within the constitutional power of the legislature was authorized. It is neither profitable nor desirable for us to question the soundness of this ruling. This construction of the constitutional provision has been acquiesced in and followed as a precedent for more than 50 years. Many laws have, doubtless, been enacted upon its authority, and rights have grown up thereunder which ought not now to be disturbed. If there ever was a case where the doctrine of stare decisis should be applied, this is certainly one. That such a construction may impair seriously the beneficial results intended to be accomplished by the framers of the constitution is, perhaps, true; but it is too late to urge this as a reason for...