King v. Banks

• Decision Date: 31 August 1878
• Citation: 61 Ga. 21
• Parties: King et al. v. Banks et al., relators.
• Court: Georgia Supreme Court

61 Ga. 21

King et al. v. Banks et al., relators.

Supreme Court of the State of Georgia

(August Term, 1878.)

Constitutional law. Municipal corporations. Quo warranto. Before Judge Rice. Hall Superior Court. September Term, 1878.

This was a quo warranto at the relation of Banks et al. against King et al., on the ground that defendants were unlawfully assuming the rights and powers of a mayor and council of the town of Belton. Defendants held their positions under an act of the legislature which incorporated both High Shoals and Belton (acts 1874, p. 155); their answer set up this act as authority. The court sustained a demurrer to the answer, and gave judgment against defendants; whereupon they excepted.

MarlER & Perry; W. P. Price, for plaintiffs in error, cited: 2 Iowa, 280; 11 Ib., 482-20 Ib., 338; 7 Minn., 465; 2 Ib., 330; 13 Ib., 341; 45 Ala., 234; 29 Wis., 400; 15 Va., (Grattan) 1; 3 Met., 566; 2 Ib., 146, 165, 219, 222; 15 111., 20; 32 Ib., 181; 51 Ib., 94; 56 Ib., 172; 7 Md., 151; 11 Ib., 525; 14 Ib., 184; 30 Ib., 112; 22 Barb., 634; 36 Ib., 177; 9 La., 333; 11 Ib., 722; 14 Ib., 7; 7 Ind., 684; 34 N. J. 236; 8 Bush., 108, 112; 13 Mich., *481; contemporaneous construction, Cooley's Const. Lim., 67, 68, 69, 240, 118, 144, 146; 49 Ga., 236; 32 Ib., 621; 51 Ib., 573; 50 Ib., 376; 51 Ib., 639; Const. 1877, art. 3, sec. 7, par. 15; 1 Dillon on Mun. Corp., 138, 139; contemporaneous legislation.

A. L. Mitchell, solicitor general: J. N. Dorsey, for defendants, cited acts 1874, pp. 155, 46; acts 1872, p. 16; constitution 1868, art. 3, sec. + par. 5; 51 Ga., 571; Ayeridge v. Town Com\'rs, etc, 60 Ga., 404; constitution 1868, art. 1, p. 32; 49 Ga., 232; 50 Ib., 374; 52 Ib., 621; 42 Ib., 405. Contrast with constitution of 1861.

Jackson, Justice.

The single question made in this record is, whether the legislature had the constitutional power, under the constitution of 1868, to incorporate two towns in one act. The towns of High Shoals, near the corner of Oconee, Morgan and Walton, being one of them, and the other town being Belton, on the confines of Hall and Banks. This proceeding is against the municipal authorities of the latter place; the court below held the act unconstitutional; and the town council brings the case here.

The constitution of 1868 contains these words: "Every bill, before it shall pass, shall be read three times, and on three separate days in each house, unless in cases of actual invasion or insurrection. Nor shall law or ordinance pass which refers to more than one subject matter, or contains matter different from what is expressed in the title thereof." Code, § 5056. The sole question is, does an act which incorporates two towns in different parts of the state contain two subjects matter. In 51 Ga., 571, in the case ex parte Conner, this court held that, under this clause of the constitution of 1868, "it was not competent for the general assembly to enact a law incorporating three separate and distinct corporations, or reviving by name three charters which had *become obsolete." The question there was, whether Conner was exempt from service as a juror, which turned upon the validity of an act which renewed the charter of the Macon volunteers, whose caption was, "An act to re-enact and declare of full force an act entitled 'an act to incorporate the volunteer corps of infantry in the city of Macon, and to grant certain privileges to the same, ' approved December 7, 1841; and to extend the provisions of said act to the Floyd Rifles, of the city of Macon, and the Clinch Rifles and the Irish Volunteers, of the city of Augusta. The body of the act was as follows: "That the above recited act is hereby re-enacted, and declared to be of full force and validity, and that all the powers, privileges, franchises and immunities therein granted to the Macon Volunteers be, and they are hereby, renewed and confirmed unto the said Macon Volunteers and Floyd Rifles, of the city of Macon, and the Clinch Rifles and Irish Volunteers, of the city of Augusta."

This court held the act void, and Judge McCay said, indelivering the opinion of the court: "This act has for its avowed purpose the creation of three separate corporate bodies, and, as we think, comes exactly within the intent and scope of this prohibition." And he adds, that the intent was to prevent log rolling, or combining the strength of different measures to carry all through when one alone might fail. He was a member of the convention, and prominent and powerful therein. We think that the principle ruled in...