Mayor v. Perry

• Decision Date: 11 March 1902
• Citation: 114 Ga. 871,40 S.E. 1004
• Parties: MAYOR, ETC., OF CITY OF AMERICUS et al. v. PERRY et al.
• Court: Georgia Supreme Court

40 S.E. 1004

114 Ga. 871

MAYOR, ETC., OF CITY OF AMERICUSet al.

v.PERRY et al.

Supreme Court of Georgia.

March 11, 1902.

TITLE OF ACT — CONSTITUTIONAL LAW — POLICE COMMISSIONERS-LOCAL SELF-GOVERNMENT—APPOINTMENT OF PUBLIC OFFICERS —INJUNCTION—ULTRA VIRES ORDINANCE.

1. Under an act entitled "An act to amend, revise and consolidate the several acts granting corporate authority to the city of Americus, to confer additional powers upon the mayor and city council of Americus, to extend the corporate limits of said city, and for other purposes" (Acts 1889, p. 961), it was compe-tent for the general assembly to provide for a board of police commissioners which should have the exclusive control of the police officers of the city; and a provision in the act to this effect, and also naming the first members of the board, prescribing the manner in which their successors should be chosen, and setting forth their duties and powers, was not subject to the objection that it contained matter different from what was expressed in the title of the act.

2. There is nothing in the constitution of this state which guaranties to the people living within the limits of a municipal corporation the absolute right of local self-government. How far people so situated may be allowed to participate in the choice of officers who are to administer the affairs of the local government is a matter exclusively within the judgment and discretion of the general assembly.

3. The general assembly may take from a municipal corporation its charter power respecting the police and their appointment, and may by statute provide for a permanent police for the corporation, under the control of a board of police not elected by the people of the municipality, nor appointed or elected by the corporate authorities, but consisting of-commissioners appointed in such other manner as the general assembly may direct.

4. The power to appoint public officers is not purely an executive function, but this power may be exercised by the general assembly, when not otherwise provided in the constitution, either by naming a given person for the office, or providing the manner in which the officer shall be chosen; and the general assembly also has authority to provide for the appointment of a number of officers to discharge a given duty, and provide that vacancies in such number may be filled by those remaining in office, thus creating a self-perpetuating body.

5. If the mayor and council of the city of Americus have, under the present charter, any authority whatever to appoint a police force, such authority cannot be exercised unless the board of police commissioners fail or refuse to provide the city with an efficient police.

6. A court of equity will, at the instance of citizens and taxpayers of a municipal corporation, enjoin the authorities in charge of the affairs of such corporation from carrying into effect an ultra vires ordinance providing for the election of certain public officers, for the reason that if such officers are elected they will have an apparent demand against tho municipality for compensation, which will have to be resisted at the expense of the taxpayers, or illegally paid out of the funds of the corporation.

7. The foregoing disposes of all of the questions raised by the demurrer, the answer, or otherwise, which require any discussion. There was no sufficient cause shown for not granting the injunction prayed for, and the judge prop-eriy granted the same.

(Syllabus by the Court.)

Error from superior court, Sumter county; Z. A. Littlejohn, Judge.

Action by It. J. Perry and others against the mayor and council of the city of Americus and others. Judgment for plaintiffs, and defendants bring error. Affirmed.

A. Port & Son, E. A. Hawkins, and Jas. Taylor, for plaintiffs in error.

J. H. Lumpkin, Lane & Maynard, W. P. Wallis, and Bla-lock & Cobb, for defendants in error.

COBB, J. This was an application by Perry and others, as chairman and members of the board of police commissioners of the city of Americus, and as citizens and taxpay ers of that city, on behalf of themselves and other citizens and taxpayers, to enjoin the mayor and council of the city of Americus, and Felder and others, the mayor, aldermen, and marshal of that city, from carrying into effect certain ordinances adopted by the mayor and council, which, if valid, had the effect of abolishing the board of police commissioners and the office of chief of police. The mayor and council, and the mayor and marshal individually, by demurrer and answer, showed for cause various reasons against the granting of the injunction. Three of the members of the council, being a minority of that body, filed an answer, which, in substance, set forth that they were opposed to the action of the council as set forth in the ordinances referred to in the petition; that they had never indorsed or acquiesced therein, and were not responsible for any attempt to put the same into execution. At the hearing the injunction prayed for was granted, and this judgment is assigned as error.

1. On November 11, 1889, an act was approved which had the following title: "An act entitled an act to amend, revise and consolidate the several acts granting corporate authority to the city of Americus; to confer additional powers upon the mayor and city council of Americus; to extend the corporate limits of said city, and for other purposes." Acts 1889, p. 961; Americus City Code (1900) p. 2. The forty-fifth section of this act provided, in substance, that there should be a board of police commissioners for the city of Americus, consisting of five named persons, two to hold office for six years, two for four years, and the one last named for two years; that at a meeting of such board in December, 1891, and each succeeding two years thereafter, those members of the board of commissioners then in office should elect a commissioner or commissioners to succeed those whose term or terms would then expire. The board was given power to fill vacancies in the same. Each member of the board was required to take an oath, which was set forth. The act then provided that "the board of police commissioners thus elected and qualified shall have the exclusive power, and it shall be their duty, to appoint a chief of police and such other police officers and policemen as is, or may be, prescribed by city ordinance." The manner in which the board should conduct its business, and the method of keeping a record of its proceedings, were then set forth. It was declared that the police force of the city should consist of a chief of police, and such other officers and men as the city council shall by ordinance prescribe. The time when such police officers should be chosen, and the manner in which they should be qualified, and certain duties incumbent upon them, are set forth; and the section authorizes the board of police commissioners to impose upon them such other duties as they shall see proper. Thecompensation of the policemen was to be such as should be prescribed by ordinance, which should not be increased or diminished during their terms of office; and the board of police commissioners was authorized to suspend or remove from office the officers and policemen elected by it, and in case of suspension the board was authorized to appoint officers to hold during the time that any officer was suspended. It is contended that this section of the city charter is void, for the reason that it contains matter different from what is expressed in the title of the act. We do not think the section is subject to this objection. The general purpose of the act, as indicated in the title, is to prescribe the conditions upon which the people of the city of Americus may be allowed, within the limits of that municipality, to exercise the powers of government. It is in effect, though not in words, an act to create a new charter for the city of Americus. Any matter relating to the subject of the local government to be authorized for the city of Americus is germane to the general purpose of the act as indicated in the title. Under this title the general assembly could confer upon the city authorities any power that the constitution does not prohibit it from conferring upon a municipal corporation, it could also expressly refuse to confer powers which might have been exercised in the past by other municipal corporations, and could withdraw from the city authorities of Americus any power formerly exercised by them under the provisions of any charter previously granted. It is hard to conceive of a title which would be broader, so far as the affairs of a municipal corporation are concerned, than the title of the act under consideration. If the title had been, "An act to incorporate the city of Americus, and for other purposes, " broad as such a title would be, it would hardly be broader than the one under consideration; and, as said above, the title is, in effect, one indicating a purpose to create a new charter for the city. It is said, however, that the title indicates that the purpose of the general assembly was to confer additional powers upon the city of Americus, and the forty-fifth section of the act really withdraws power formerly lodged with the corporate authorities. If the title did not have in it the words "for other purposes, " there might be some plausibility, at least, in this contention; but the presence of the words just referred to, under the well-settled rule in this state, permits the general assembly to incorporate in the act legislation on any matter which is within the general purview of the act as indicated by the language of the title, although not referred to expressly therein. The general purview of the act under consideration is to amend, revise, and consolidate the several acts granting corporate authority to the city of Americus; and, under the right to amend and revise, the general assembly could take away any authority which had been formerly conferred...