De Kalb County v. City of Atlanta
| Decision Date | 18 June 1909 |
| Citation | 65 S.E. 72,132 Ga. 727 |
| Parties | DE KALB COUNTY v. CITY OF ATLANTA. RIVERS v. CITY OF ATLANTA et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
If the act of August 7, 1906 (Acts 1906, p. 121), providing for the change of county lines lying within the limits of incorporated towns and cities, by holding an election in such municipalities to determine within which of the counties the corporate limits should be entirely included, should be held to apply to the changing of county lines within the limits of municipalities which are county sites, it would be violative of the constitutional provision that "no county site shall be changed or removed, except by a two-thirds vote of the qualified voters of the county, voting at an election held for that purpose, and a two-thirds vote of the General Assembly." Civ. Code 1895, § 5927.
In view of the rule that if an act of the Legislature is subject to two constructions, one of which would make it constitutional and the other of which would render it unconstitutional, the former will be adopted, and also the rule that usually general words in a statute are not treated as including the government or affecting its rights, unless such an intent appears from the statute itself, the act of 1906 referred to in the preceding headnote is held not to apply to changing county lines lying within the limits of a municipality which is a county site.
Where a legislative act is complete, but it provides for an election in a particular municipality in order to determine whether a change of a county line shall be made in accordance with its provisions, such an election is not legislative in its character, and an injunction to prevent its being held or carried into effect will not be denied on the ground that it is an effort to enjoin legislation.
Where it is sought to hold an election as being under the provisions of the act of 1906, supra, and change a county line in accordance with the result thereof, without authority of law for so doing, one of the counties, a portion of the territory of which is involved in the attempted change of the county line, may bring an action to enjoin it. The county commissioner of De Kalb county has authority, in the name of the county, to institute such a suit as that just mentioned.
Where by an act of the Legislature, the corporate limits of a county site were so extended as to include territory lying in an adjacent county, and it was sought to change the county line so as to include the entire municipality in one or the other of the two counties, a citizen and taxpayer of the municipality thus extended could institute a proceeding to enjoin the election from being held and the county line from being changed in accordance with its result. The evidence showed that the plaintiff Rivers had such an interest as entitled him to file the petition in this case.
While generally the holding of an election is a political matter and will not be enjoined, and a court of equity will not ordinarily enter into a consideration of the details or irregularities in an election, and take the place of the ordinary methods of contesting the result, yet where it is sought, without authority of law, to hold a municipal election for the purpose of changing a county line and to carry into effect the result of the election so held injunction will be granted at the instance of one entitled to institute a proceeding for that purpose.
It does not appear that the acts sought to be enjoined have already been completed. If it may be inferred from the record that the election has been held, other things are necessary to be done in order to change the county line under the terms of the act of 1906, by virtue of which it was sought to hold the election. Injunction therefore cannot be denied on the ground that the acts sought to be enjoined have already been done.
A "county site" is the place where the county business is transacted, the courthouse located, and the superior court held.
Error from Superior Court, Fulton County; J. T. Pendleton and W. D Ellis, Judges.
Action for an injunction by the County of De Kalb against the City of Atlanta. J. R. Rivers filed a similar action against the City of Atlanta and others. An interlocutory injunction was refused in each case, and the respective plaintiffs bring error. Reversed.
The county of De Kalb brought an equitable action against the city of Atlanta, seeking to enjoin the defendant, its officers, mayor, council, clerk, and agents from holding an election to determine whether all the territory included within the corporate limits of Atlanta should lie in the county of Fulton or the county of De Kalb, under an ordinance which had been passed for that purpose, "or taking any other steps to carry out said ordinance," and from doing "each and every of said enumerated acts or any like acts." It was alleged that the defendant has passed an ordinance for the purpose of holding an election of the character indicated, that it was the intention to hold such an election, and that the defendant and its clerk claimed authority to do so under the act of 1906, "and thereafter to change said county line as provided in said act, or attempt so to do." The city of Atlanta as incorporated was wholly in the county of Fulton prior to 1908. In 1906 an act of the General Assembly was passed entitled "An act to provide for the change of county lines lying within the limits of incorporated towns and cities, and for other purposes." Acts 1906, p. 121. In 1908 the General Assembly passed an act amending the charter of the city of Atlanta for the purpose of extending the corporate limits over certain territory lying within the county of De Kalb, including the town of Edgewood, except a small section thereof which had been added to the town of Kirkwood. Acts 1908, p. 383. Both of these acts were attacked as being invalid. Various grounds of unconstitutionality were set up in regard to the act of 1906. It was also alleged that the registration for the purpose of holding the election was illegal, and that the ordinance was illegal, for reasons set out. It was averred: That if the result of the election should be ascertained to be in favor of changing the boundary line between Fulton and De Kalb counties, so as to include the city of Atlanta wholly within the county of Fulton, "then all the territory of De Kalb county now included in the extended limits of Atlanta, as described in such extension act of August 15, 1908, will be taken from De Kalb county and included in Fulton county"; that, in the event of either county losing its urban territory by reason of the election, such county will be seriously embarrassed in complying with its obligations and in carrying out its lawful undertakings, and rendered unable to discharge its duties to the state imposed by the Constitution; that the county of De Kalb has incurred large necessary expenses; that the territory in question amounts in value to about one-third of the whole county, and if taken from that county a casual deficiency in revenue would arise amounting to more than one-fifth of 1 per cent. of the whole, and would cause a large increase in taxation; that the territory of De Kalb county involved contains a population of about 5,000 people and taxable values of a million dollars or more; that much complication would arise in regard to the payment of taxes, the service of jurors, the attendance of witnesses, the venue of suits, and other matters; and that the plaintiff has reason to fear that the revenues of the county would be substantially reduced or delayed in collection, and that the collection of taxes would be resisted, and a multiplicity of lawsuits entailed upon the county. The defendant denied that the act of 1906 or the act of 1908 was unconstitutional or invalid, or that there was any invalidity in the ordinance calling the election, or in the registration or preliminary steps taken for the purpose of holding it, and contested the right of the plaintiff to the injunction sought. On the hearing the presiding judge refused an interlocutory injunction, and the plaintiff excepted.
J. R Rivers, alleging himself to be a citizen and taxpayer and one entitled to qualify as a voter of the county of De Kalb, and that he owns property in that part of De Kalb county which is sought to be included in the extended limits of the city of Atlanta, filed a similar proceeding in equity to that above mentioned. To this proceeding the county commissioner of De Kalb, the commissioners of roads and revenues of Fulton county, the city of Atlanta, its mayor, members of its boards of aldermen, and the members of the city council, were made parties defendant. The petition also set out various grounds of attack on the act of 1906, that of 1908, the registration of voters for the contemplated election, the ordinance adopted by the municipal authorities of the city of Atlanta, and the proceedings preparatory to holding the election. The plaintiff alleged that he was interested in preserving his political status as a citizen of De Kalb county, and that he was further interested as a taxpayer called upon to contribute to the support of the city government of Atlanta, and to bear his share of the expenses of holding the election and of carrying out its results, and as a taxpayer was interested in having it determined in what county he should pay his taxes. He prayed: That the defendants be enjoined from holding the election, from consolidating the votes cast thereat, and from canvassing the returns and declaring the result; that the mayor and clerk of the city of Atlanta be enjoined from certifying the result to the county authorities of Fulton and De Kalb counties, and the mayor and city clerk be likewise enjoined; that the...
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