Herrod v. O'Beirne, s. 18449

• Decision Date: 08 February 1954
• Docket Number: 18450,Nos. 18449,s. 18449
• Citation: 80 S.E.2d 684,210 Ga. 476
• Parties: HERROD et al. v. O'BEIRNE et al. REEVES v. HERROD et al.
• Court: Georgia Supreme Court

Page 684

80 S.E.2d 684

210 Ga. 476

HERROD et al. v. O'BEIRNE et al.

REEVES v. HERROD et al.

Nos. 18449, 18450.

Supreme Court of Georgia.

Feb. 8, 1954.

Rehearing Denied March 10, 1954.

Syllabus by the Court.

1. The act of the legislature here attacked, Ga.L.1953, p. 2788, is unconstitutional for reasons stated in the body of the opinion.

2. The judgment of the court below, holding that the defendant was the holder of a permit from the sole Commissioner

of Cobb County, Georgia, and refusing to invalidate said permit, was not error.

Dr. N. R. Herrod and other citizens similarly situated brought, against E. N. O'Beirne and Byron E. Reeves, this petition, in which they sought to enjoin the defendants from constructing a cemetery on described property in Cobb County, Georgia, the petitioners being residents and property holders in the vicinity where the cemetery was about to be constructed. Other persons intervened and were made parties, who, in the view we here take, need not be set out.

It was contended that an act of the legislature of 1953, Ga.L.1953, p. 2788, seeking to eliminate from the jurisdiction of the Cobb County Planning Board the property in question and providing that this property be zoned for cemetery purposes, was unconstitutional on a number of grounds. Certain other acts of the legislature of 1910, 1911 and 1935, as will be set out in the opinion in this case, were also attacked on constitutional grounds.

The trial judge held that the act of 1953, supra, was unconstitutional. He further held that, under the act of the legislature of 1943, Ga.L.1943, p. 905, § 9, the sole Commissioner of Cobb County, Georgia, had the right to issue a permit for the construction of a cemetery, and declined to invalidate a permit so issued. The direct bill of exceptions complains of the ruling to the effect that the acts of 1910, 1911 and 1935 were constitutional, and the ruling refusing to invalidate the permit issued under the terms of these acts, and the judgment denying an injunction. The defendants in the court below by cross-bill complain about so much of the judgment of the trial court as held the act of 1953 to be unconstitutional, and raised certain other objections which, under the view we take of this case, it is not necessary to state here.

Raymond M. Reed, L. C. Hames, Jr., Marietta, Powell, Goldstein, Frazer & Murphy, Travers Hill, Atlanta, for plaintiff in error.

J. G. Roberts, Howell C. Ravan, Harold S. Willingham, Marietta, Bryan, Carter, Ansley & Smith, Moise, Post & Gardner, Atlanta, for defendant in error.

WYATT, Presiding Justice.

1. The first question presented is the validity of the act of the General Assembly, Ga.L.1953, p. 2788. This act is attacked on several grounds. One ground of attack is that the act provided for the zoning of the property here in question by the legislature, and that the legislature has no such power. In 1927, the legislature proposed a constitutional amendment that was ratified in 1928, Code Ann. § 2-1923, providing as follows: 'The General Assembly of the State shall have authority to grant the governing authorities of the municipalities and counties authority to pass zoning and planning laws whereby such cities or counties may be zoned or districted for various uses and other or different uses prohibited therein, and regulating the use for which said zones or districts may be set apart, and regulating the plans for development and improvements on real estate therein.' Prior to this time this court had consistently held that counties and municipalities were without authority to zone property even if the charter of the municipality gave them the right to zone. Among a number of cases holding to this effect, see the following: Smith v. City of Atlanta, 161 Ga. 769, 132 S.E. 66, 54 A.L.R. 1001, and Morrow v. City of Attlanta, 162 Ga. 228, 133 S.E. 354. It follows, that any right to zone property in this State must be found in the amendment to the Constitution above quoted.

A mere reading of this provision will disclose that the only authority therein granted to the legislature is the authority to delegate to counties and municipalities the right to zone. Neither under this provision of our Constitution, nor under any other provision of our Constitution or laws, has the legislature the right to zone property. This constitutional amendment vests this power in the local authorities where it properly belongs. It follows, the act of 1953, supra, is invalid.

Since under this ruling the act must fall, it becomes unnecessary to consider the other attacks made on the act.

2. The trial court, after holding the act of 1953 to be unconstitutional and void, further held that the defendant in the court below was the holder of a permit issued by the sole Commissioner of Cobb County to construct a cemetery on the property in question and refused to invalidate the permit so issued.

Ga.L.1910, p. 131, sec. 1, provides: 'Be it enacted, That in all counties in this State having a population of one hundred and twenty-five thousand (125,000), or more, the Board of County Commissioners, or if there be no such Board, the Ordinary of said county, shall have the power to grant or refuse permission to establish outside of the limits of incorporated towns, cemeteries, hospitals, sanatoriums, or similar institutions.' Ga.L.1911, p. 200, extended the provisions of the act of 1910, supra, to all counties adjoining counties having a population of 125,000 or more. Cobb County is a county coming within the terms of these acts. These acts were further amended, Ga.L.1935, p. 384, extending the provisions of the acts to other institutions not here involved.

All these acts are here attacked as being special laws and, therefore, unconstitutional. This court has many times held that the language of these statutes as to population does not have the effect of making statutes of this kind special laws. For a few of the many decisions so holding, see Jackson v. State Highway Department, 164 Ga. 434, 138 S.E. 847; Nichols v. Pirkle, 202 Ga. 372, 43 S.E.2d 306; Williamson v. Housing Authority of Augusta, 186 Ga. 673, 199 S.E. 43; Cooper v. Rollins, 152 Ga. 588, 110 S.E. 726, 20 A.L.R. 1105. It follows, there is no merit in the contention that these statutes violate article 1, sec. 4, par. 1 of the Constitution of Georgia.

The author of this opinion, speaking for himself only, as he has previously stated, is not in accord in his own thinking with many of the decisions of this court dealing with this question. It seems to me that this device has been used as a means of making a patchwork of our Constitution. However, we are bound by the many unanimous decisions of this court on the question.

It is next insisted that the above acts of the legislature, even if constitutionally enacted, were repealed by the Comprehensive Zoning Statute, Ga.L.1943, p. 902. The answer to this contention is that the zoning statute relied upon contained this provision: 'Be it further enacted that this Act shall not repeal any law now of force restricting the construction and defining the conditions under which cemeteries, hospitals and other similar institutions may be constructed and maintained within Cobb County, Georgia.' Ga.L.1943, p. 905, sec. 9. The effect of this provision was to require, as had theretofore been required, a permit from the county authorities before a cemetery could be constructed. We see no reason why this is not a perfectly valid provision of the zoning statute, and this provision was clearly authorized under the caption of the zoning statut...