Humthlett v. Reeves

• Decision Date: 09 November 1954
• Docket Number: No. 18736,18736
• Citation: 211 Ga. 210,85 S.E.2d 25
• Parties: W. R. HUMTHLETT et al. v. Byron E. REEVES et al.
• Court: Georgia Supreme Court

Page 25

85 S.E.2d 25

211 Ga. 210

W. R. HUMTHLETT et al. v. Byron E. REEVES et al.

No. 18736.

Supreme Court of Georgia.

Nov. 9, 1954.

Rehearing Denied Dec. 2, 1954.

Syllabus by the Court.

1. While it has been held that acts which have been classified upon the basis of population are general, and not special laws, where population has some reasonable relation to the subject matter of the law, and furnishes some legitimate grounds of differentiation, there can be no reason for classification of counties based upon the population of an adjoining county, and to so classify a county as coming within the purview of an act because of the population of some other county is purely arbitrary. Moreover, an act which makes the classification by population must be open to let in counties subsequently falling within the class. Under the foregoing principle, the act approved August 21, 1911, Ga.L.1911, p. 200, which purports to bring within the purview of the act of 1910, Ga.L.1910, p. 130, all counties which in 1911 adjoined a county having the population prescribed by the act of 1910, is violative of article 1, section 4, paragraph 1 of the Constitution of 1945, Code.Ann. § 2-401, which provides that laws of a general nature shall have uniform operation throughout the State and no special law shall be enacted in any case for which provision has been made by an existing general law.

(a) The doctrine of res judicata will not be applied on the theory of virtual representation where the original action is brought by a stranger to the subsequent action solely on his own behalf to protect his individual rights.

(b) While, under the rule of stare decisis, a principle of law which has become settled by a series of decisions generally is binding on the courts and should be followed in similar cases, that doctrine should not be followed to the extent that error may be perpetuated.

2. In case of a mistake in a reference in a statute to another statute, where the real intent of the legislature is manifest, and would be defeated by an adherence to the terms of the mistaken reference, and the act is otherwise a complete act within itself, the mistaken reference will be regarded as surplusage, or will be read and corrected, in order to give effect to the legislative intent.

3-6. The act approved December 27, 1937, Ga.L.1937-38, Ex.Sess., p. 790, conferring upon the County Commissioner of Cobb County the authority to zone property outside the incorporated cities of the county is not subject to the constitutional attacks thereon dealt with in divisions 3, 4, and 5 of the opinion.

W. R. Humthlett, Jr., and six other persons, alleging themselves to be the owners of property adjoining or in the immediate vicinity of described land owned and held by the defendants, brought their petition in equity, seeking to enjoin Byron E. Reeves and E. N. O'Beirne from constructing and establishing a cemetery upon the land described in an unincorporated area of Cobb County, Georgia, and for a declaratory judgment as to the validity of the act of 1911, Ga.L.1911, p. 200, which purports to make applicable to Cobb County the provisions of the act of 1910, Ga.L. 1910, p. 130, providing for the granting of permits by the County Commissioner or other county authority of counties having a population of 125,000 or more for the establishment of cemeteries in unincorporated areas of such counties. The petition as amended alleged that all of the land referred to in the petition, including that of various plaintiffs and of the defendants, and that upon which the defendants proposed to establish a cemetery, had been lawfully zoned exclusively for residential and agricultural purposes by an ordinance adopted by the Commissioner of Roads and Revenues of Cobb County on October 12, 1939, with the formalities required by the act approved December 27, 1937, Ga.L.1937-38, Ex.Sess., p. 790. The petition alleges that a permit previously granted to the defendants by the Commissioner of Cobb County in July, 1953, under the act of 1911, had been subsequently revoked, and that the defendants now had no permit; but even if such permit had not been lawfully revoked, the permit was invalid because the statute under which it was issued was unconstitutional and void for the reasons hereinafter dealt with. There are various other allegations made in the petition, but in the view we take of the case we do not deem it necessary to set them out in detail here. The defendants denied that the permit granted to them in July, 1953, had been lawfully revoked; they denied that the act of 1911 under which it was granted was invalid for any reason assigned; they denied that the property had been lawfully zoned exclusively for agricultural and residential purposes, because, as they contend, the act of 1943, Ga.L.1943, p. 902, as amended by the act of 1949, Ga.L.1949, p. 1499, conferring upon the Planning Commission of Cobb County the power of zoning property is unconstitutional and void for various reasons alleged in their answer; and, as they contend, the act of 1937, supra, conferring upon the Commissioner of Roads and Revenues of Cobb County the power to zone property, is invalid for various reasons which will be hereinafter dealt with. It appears from the record that the property has been zoned exclusively for agricultural and residential purposes under the provisions of the foregoing acts, unless they and the zoning thereunder should be held invalid for some reason urged by the defendants. The case was submitted to the trial judge to pass on all questions of law and fact without the intervention of a jury; and the judge rendered a decree: (1) that, under the acts approved August 9, 1910, and August 21, 1911, the defendant Reeves obtained from the Commissioner of Roads and Revenues of Cobb County, who was authorized to issue the same, a valid and binding permit dated July 2, 1953, and the same was, is, and remains entirely valid and lawful and authorizes the defendant Reeves to construct, maintain, and operate a cemetery upon the land involved; (2) that the said acts of 1910 and 1911 are entirely constitutional, valid, and binding as against all attacks made by the plaintiffs upon the constitutionality or validity thereof; (3) that the purported revocation of the permit by the Commissioner of Roads and Revenues of Cobb County is illegal and void; (4) that the act approved December 27, 1937, Ga.L.1937-38, Ex.Sess., p. 790, is invalid and unconstitutional, and that any purported zoning thereunder of the land involved for purposes which would exclude its use as authorized in said permit is not valid and binding; and sustained the attack made upon that act and the zoning thereunder by the defendants, upon the ground that the act was void since the act approved August 15, 1921, which it purported to amend, was never adopted or never became effective because not ratified by a vote of the people under the referendum provided for in section 20 thereof. To this judgment and decree the plaintiffs except.

Raymond M. Reed, Marietta, Powell, Goldstein, Fraser & Murphy, Atlanta, for plaintiffs in error.

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

HAWKINS, Justice.

(After stating the foregoing facts.) 1. Section 1 of Ga.L.1910, p. 131, 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, § 1, provides that, 'in all cases where it is now provided by the operation of existing laws that cemeteries * * * can not be established in the rural territory of any county without the permission of the Board of County Commissioners * * * it shall be likewise unlawful to establish any such cemetery * * * in any adjoining county without the permission' of the person or persons in charge of the county business. While this court, in Herrod v. O'Beirne, 210 Ga. 476, 80 S.E.2d 684, by a majority opinion held both of these acts to be valid as against the attack that they were unconstitutional because violative of article 1, section 4, paragraph 1 of the Constitution of 1945, CodeAnn. § 2-401, providing that 'Laws of a general nature shall have uniform operation throughout the State, and no special law shall be enacted in any case for which provision has been made by an existing general law', upon the theory that the classification by population makes them general and not special laws; and while, as there said, under the authorities there cited, acts which have been classified upon the basis of population have been held to be general and not special laws where population has some reasonable relation to the subject matter of the law, and furnishes some legitimate ground of differentiation--there can be no reason for classification of counties based upon population of an adjoining county, and to so classify a county as coming within the purview of an act because of the population of some other county is purely arbitrary. The population of one county cannot have any reasonable relation to the subject matter of a statute such as this so as to make it applicable to an adjoining county. Stewart v. Anderson, 140 Ga. 31, 78 S.E. 457; City of Atlanta v. Wilson, 209 Ga. 527, 74 S.E.2d 455; City of Atlanta v. Sims, 210 Ga. 605, 82 S.E.2d 130. The act of 1911, by its own terms, limits its operation to those counties which adjoined another county having a population in 1911 of 125,000, and makes no provision for counties that in the future would adjoin counties having a population of 125,000. In Tift v. Bush, 209 Ga. 769, 771, 75 S.E.2d 805, 807, this court held: 'In order...