Fullington v. Williams

CourtSupreme Court of Georgia
Writing for the CourtSIMMONS
Citation27 S.E. 183,98 Ga. 807
Decision Date01 October 1896
PartiesFULLINGTON et al. v. WILLIAMS et al.

27 S.E. 183
98 Ga. 807

FULLINGTON et al.
v.
WILLIAMS et al.

Supreme Court of Georgia.

Oct. 1, 1896.


Statutes—Enactment—Evidence—Amendment-Special Laws.

1. The truth of allegations in an equitable petition that certain constitutional requirements had not been complied with in the passage of an act incorporating a town cannot be shown either by admissions in an answer filed by the persons acting as mayor and councilmen of such town, who are the defendants to the petition, or by their failure to deny such allegations. The only evidence which can be legally invoked in such case is the journals of the two houses of the general assembly.

2. Following the decision of this court in the case of Adam v. Wright, 84 Ga. 720, 11 S. E. 893, the act of December 1, 1893 (Acts 1893, p. 65), to repeal the act of October 19, 1891, "to provide the mode of granting charters, " etc. (Acts 1890-91, vol. 1, p. 190), is not unconstitutional, as being in violation of that provision of the constitution which declares that no law shall be repealed by mere reference to its title. Code, § 5076. The repealing act sufficiently described the act repealed, by setting forth the title of the latter, and giving the date of its approval.

3. The law embodied in Code, §§ 774-797 (c), for the incorporation of towns and villages, is not one of a general nature having uniform operation throughout the state, for the reason that it does not apply "to any community, town or village within one mile of the corporate limits of any city in this state, " and therefore a very considerable portion of the territory of the state is expressly excluded from its operation. Consequently, it is within the power of the general assembly to pass an act incorporating a

[27 S.E. 184]

town or village, without violating paragraph 1, § 4, art. 1, of the constitution. Code, § 5027. (Syllabus by the Court.)

Error from superior court, Dooly county; W. H. Fish, Judge.

Petition by G. W. Fullington and others against W. L. Williams and others. From a judgment for defendants, plaintiffs bring error. Affirmed.

J. H. Martin, for plaintiffs in error.

Busbee, Crum & Busbee and J. M. Terrell, for defendants in error.

SIMMONS, C. J. Fullington and others, for themselves and other citizens of the town of Pinehurst, brought their petition against Williams and others, to enjoin the defendants, their marshal, clerk, and treasurer, from exercising the privileges, etc., of mayor and councilmen of Pinehurst, or acting under the act of December 16, 1895, incorporating said town; the petitioners contending that the act referred to was unconstitutional and void, on various grounds set out in the petition. The injunction prayed for was refused, and the petitioners excepted.

1. One of the grounds of attack upon the act in question was that notice of the intention to apply for its passage was not given before the introduction of the bill, as required by the constitution (article 3, § 7, par. 16; Code 1882, § 5075) and by the act of December 3, 1878 (Code 1882, § 193a); and it is complained that the court below erred in declining to receive affidavits to this effect. The question here made is ruled by the decision of this court in the case of Speer v. Mayor, etc., 85 Ga. 49, 11 S. E. 802, where it was held that evidence outside of the journals of the legislature will not be received to show noncompliance with this requirement. The journals being silent as to whether such notice was given or not, and not being required to speak on the subject, the presumption is that the legislature did not disregard the requirement referred to. See 23 Am. & Eng. Enc. Law, art. "Statutes, " 199 et seq. Nor could the court consider any admission of the defendants that such notice was not given. "Courts cannot act upon such admissions in determining the constitutionality of statutes. Facts may be admitted by parties to suits, but the law cannot be made or abrogated by agreement." A statute "cannot be declared to be law or not law at the option of litigants." Board v. Stevenson, 46 N. J. Law, 186; Attorney General v. Rice, 64 Mich. 385, 31 N. W. 203; Happel v. Brethauer, 70 Ill. 166.

2. It was further contended that, at the time the act in question was passed, the legislature had no power to pass such an act, because by an act approved October 19, 1891 (Acts 1890-91, vol. 1, p. 190), it was provided that the general assembly should have no power or authority, by local or special en actment, to grant any charter Incorporating any town of less than 2, 000 inhabitants (to which class the town of Pinehurst belonged), but that all such charters should be granted by the superior court of the county in which the town was situated; and that, although it was sought to repeal this last-mentioned act by an act approved December 1, 1893 (Acts 1893, p. 65), the repealing act was ineffectual, because not in conformity to article 3, § 7, par. 17, of the constitution (Code, § 5076), which provides that "no law or section of the Code shall be amended or repealed by mere reference to its title, but the amending or repealing act shall distinctly describe the law to be...

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38 practice notes
  • State v. Harden
    • United States
    • Supreme Court of West Virginia
    • September 5, 1907
    ...v. Richardson, 17 Mass. 122, 9 Am. Dec. 123; Commonwealth v. Parker, 2 Pick. (Mass.) 550; Cooley's Cons. Lim. 69; Eul-lington v. Williams, 98 Ga. 807, 27 S. E. 183; State v. Holcoinb, 46 Neb. 88, 64 N. W. 437; Wallace v. Bradshaw, 54 N. J. Law, 175, 23 Atl. 759. That certain municipal corpo......
  • State Highway Dep't Of Ga. v. Bass, No. 14709.
    • United States
    • Supreme Court of Georgia
    • February 15, 1944
    ...& F. R. Co. v. George, 92 Ga. 760(2), 19 S.E. 813; Silvey & Co. v. Phœnix Insurance Co, 94 Ga. 609, 21 S.E. 607; Fullington v. Williams, 98 Ga. 807(2), 27 S.E. 183; Puckett v. Young, 112 Ga. 578(2), 37 S.E. 880; Cunningham v. State, 128 Ga. 55, 57 S.E. 90; Tison v. City of Doerun, 155 Ga. ......
  • Gottstein v. Lister, 12995.
    • United States
    • United States State Supreme Court of Washington
    • December 10, 1915
    ...N.J. Law, 173; Legg v. Mayor et al., 42 [153 P. 603] Md. 203; Attorney General v. Rice, 64 Mich. 385, 31 N.W. 203; Fullington v. Williams, 98 Ga. 807, 27 S.E. 183; State v. Boise, 5 Idaho, 519, 51 P. 110; Harrison v. People, 57 Colo. 137, 140 P. 203. We proceed then in the light of judicial......
  • State Highway Dept. of Georgia v. Bass, 14709.
    • United States
    • Supreme Court of Georgia
    • February 15, 1944
    ...& F. R. Co. v. George, 92 Ga. 760(2), 19 S.E. 813; Silvey & Co. v. Phoenix Insurance Co., 94 Ga. 609, 21 S.E. 607; Fullington v. Williams, 98 Ga. 807(2), 27 S.E. 183; Puckett v. Young, 112 Ga. 578(2), 37 S.E. 880; Cunningham v. State, 128 Ga. 55, 57 S.E. 90; Tison v. City of Doerun, 155 Ga.......
  • Request a trial to view additional results
38 cases
  • State v. Harden
    • United States
    • Supreme Court of West Virginia
    • September 5, 1907
    ...v. Richardson, 17 Mass. 122, 9 Am. Dec. 123; Commonwealth v. Parker, 2 Pick. (Mass.) 550; Cooley's Cons. Lim. 69; Eul-lington v. Williams, 98 Ga. 807, 27 S. E. 183; State v. Holcoinb, 46 Neb. 88, 64 N. W. 437; Wallace v. Bradshaw, 54 N. J. Law, 175, 23 Atl. 759. That certain municipal corpo......
  • State Highway Dep't Of Ga. v. Bass, No. 14709.
    • United States
    • Supreme Court of Georgia
    • February 15, 1944
    ...& F. R. Co. v. George, 92 Ga. 760(2), 19 S.E. 813; Silvey & Co. v. Phœnix Insurance Co, 94 Ga. 609, 21 S.E. 607; Fullington v. Williams, 98 Ga. 807(2), 27 S.E. 183; Puckett v. Young, 112 Ga. 578(2), 37 S.E. 880; Cunningham v. State, 128 Ga. 55, 57 S.E. 90; Tison v. City of Doerun, 155 Ga. ......
  • Gottstein v. Lister, 12995.
    • United States
    • United States State Supreme Court of Washington
    • December 10, 1915
    ...N.J. Law, 173; Legg v. Mayor et al., 42 [153 P. 603] Md. 203; Attorney General v. Rice, 64 Mich. 385, 31 N.W. 203; Fullington v. Williams, 98 Ga. 807, 27 S.E. 183; State v. Boise, 5 Idaho, 519, 51 P. 110; Harrison v. People, 57 Colo. 137, 140 P. 203. We proceed then in the light of judicial......
  • State Highway Dept. of Georgia v. Bass, 14709.
    • United States
    • Supreme Court of Georgia
    • February 15, 1944
    ...& F. R. Co. v. George, 92 Ga. 760(2), 19 S.E. 813; Silvey & Co. v. Phoenix Insurance Co., 94 Ga. 609, 21 S.E. 607; Fullington v. Williams, 98 Ga. 807(2), 27 S.E. 183; Puckett v. Young, 112 Ga. 578(2), 37 S.E. 880; Cunningham v. State, 128 Ga. 55, 57 S.E. 90; Tison v. City of Doerun, 155 Ga.......
  • Request a trial to view additional results

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