League of Women Voters of Atlanta-Fulton County, Inc. v. City of Atlanta

• Decision Date: 26 February 1980
• Docket Number: ATLANTA-FULTON,No. 35964,35964
• Citation: 264 S.E.2d 859,245 Ga. 301
• Parties: LEAGUE OF WOMEN VOTERS OFCOUNTY, INC. et al. v. CITY OF ATLANTA et al.
• Court: Georgia Supreme Court

Page 859

264 S.E.2d 859

245 Ga. 301

LEAGUE OF WOMEN VOTERS OF ATLANTA-FULTON COUNTY, INC. et al. v. CITY OF ATLANTA et al.

No. 35964.

Supreme Court of Georgia.

Submitted Jan. 22, 1980.

Decided Feb. 11, 1980.

Rehearing Denied Feb. 26, 1980.

Trotter, Bondurant, Griffin, Miller & Hishon, Emmet J. Bondurant, M. Jerome Elmore, Atlanta, for appellants.

Ferrin Y. Mathews, Roswell, for appellees.

MARSHALL, Justice.

This is a continuation of City of Atlanta v. League of Women Voters, 244 Ga. 796, 262 S.E.2d 77 (1979).

In our earlier decision in this case, we held that the Atlanta City Council was required to call a special election to fill the office of president of the city council, which was vacated by Carl Ware on August 27, 1979. Following denial of the motion for rehearing from our prior decision and transmittal of the remittitur to the trial court, the League of Women Voters filed a supplemental complaint. In the supplemental complaint, they aver that James Bond, acting in his capacity as President Pro Tempore of the Atlanta City Council, has appointed the committee members and chairmen of the city council for the calendar year 1980. Alleging that the president pro tempore lacks authority to make such appointments, the league seeks an injunction against the city council prohibiting them from recognizing or giving effect to the appointments made by Bond. The trial court dismissed the supplemental complaint for failure to state a claim for relief, and the league appeals.

At the outset, it is helpful to recall exactly how this case arose: Carl Ware delivered to the council a letter of resignation effective August 27, 1979, and he ceased exercising any of the powers or duties of his office on that date. Under § 5-103 of the Atlanta City Charter, the city council is required to call a special election to fill the office of council president if the vacancy does not occur within two years of the next general election, which is October 6, 1981. If the vacancy does occur within two years of the next general election, the council can elect a council president from its own members.

The council attempted to delay acceptance of Ware's resignation until October 15, 1979, thereby avoiding the necessity for calling a special election. This court, affirming the trial court, held that on August 27, 1979, Ware had ceased performing the duties of his office within the meaning of Code § 89-501(7); therefore, the office was vacated on August 27, and the council was required to call a special election to fill the office of council president.

The committee appointments for the year 1980 were announced by Bond on December 3, 1979, at the first regular meeting of the council for the month of December. In addition to other appointments made by President Pro Tempore Bond, he appointed himself chairman of the Development Committee; he also appointed himself to be a member of the Human Resources Committee, Transportation Committee, and Committee on Council. These appointments were not finalized until being accepted by majority vote of the total membership of the council at the next council meeting on December 17. The special election was called for February 5, 1980.

1. Initially, the city argues that the plaintiffs lack standing to bring this suit, because the suit is nothing more than an attempt to regulate the internal operating procedures of the city council. In making this argument, the city stresses that § 2-204 (c) of the Atlanta City Charter gives a majority of the total membership of the council the authority to reject committee appointments made by the council president. Consequently, the city argues that committee appointments made by the council president have no effect upon the action of the council as the governing authority of the City of Atlanta.

We do not agree that this case involves only the internal operating procedures of the Atlanta City Council. The substantive question for decision is whether President Pro Tempore Bond had the authority to make Atlanta City Council committee appointments for 1980. This question must be answered by looking to the Atlanta City Charter (Ga.L. 1973, p. 2188 et seq.) (referred to hereinafter as the city charter) and the Code of Ordinances of the City of Atlanta (referred to hereinafter as the city code). Thus, what we are concerned with in this case is the appointive authority of a municipal official under the city charter and the city code. This involves more than the internal operating procedures of the council. Questions of the nature raised here are subject to judicial review. See Geeslin v. Opie, 220 Ga. 53, 136 S.E.2d 720 (1964); Palmer v. Claxton, 206 Ga. 860, 59 S.E.2d 379 (1950); Cummings v. Robinson, 194 Ga. 336, 21 S.E.2d 627 (1942); Gostin v. Brooks, 89 Ga. 244, 15 S.E. 361 (1892); Asbell v. Brunswick, 80 Ga. 503, 5 S.E. 500 (1888).

We hold that the plaintiffs have standing to bring this suit. In this state, it is established that a citizen and taxpayer of a municipality, without the necessity for showing any special injury, has standing to sue to prevent officials of the municipal corporation from taking actions or performing acts which they have no authority to do.

" 'There is no doubt but that equity will exercise jurisdiction to restrain acts or threatened acts of public corporations or of public officers, boards, or commissions which are ultra vires and beyond the scope of their authority, outside their jurisdiction, unlawful or without authority.' . . . This court has many times recognized the right of a taxpayer to apply to a court of equity to prevent public officers from taking action or performing acts which they have no authority to do. Smith v. McMichael, 203 Ga. 74, 45 S.E.2d 431, and cases there cited." Irwin v. Crawford, 210 Ga. 222, 224, 78 S.E.2d 609, 611 (1953); Head v. Browning, 215 Ga. 263, 266, 109 S.E.2d 798 (1959). It was held by this court as early as 1871 that a court of equity is authorized to interfere to restrain the action of a municipal official if it appears that the act is ultra vires or fraudulent and corrupt. Wells v. Atlanta, 43 Ga. 67(2) (1871). Accord, Moore v. Robinson, 206 Ga. 27, 55 S.E.2d 711 (1949); Keen v. Waycross, 101 Ga. 588, 29 S.E. 42 (1897). "Where the question is one of public right and the object is to procure the enforcement of a public duty, no legal or special interest need be shown, but it shall be sufficient that plaintiff is interested in having the laws executed and the duty in question enforced." Code § 64-104; Head v. Browning, supra, and cits.; Thomas v. Ragsdale, 188 Ga. 238, 3 S.E.2d 567 (1939) and cits.

2. As we have previously stated, President Pro Tempore Bond's authority to make these committee appointments must be determined by looking to the city charter and the city code.

The powers and duties of the president of the Atlanta City Council are set out in § 2-204 of the city charter and § 1-1001 of the city code. Section 2-204(a) of the city charter and § 1-1001(a) of the city code state that the president of the council shall preside at the meetings of the council, but § 2-204(a) of the charter states that the president shall not be a member of the council. See Savage v. City of Atlanta, 242 Ga. 671(2), 251 S.E.2d 268 (1978). The essential...