Smith v. Abercrombie
| Citation | 221 S.E.2d 802,235 Ga. 741 |
| Decision Date | 04 December 1975 |
| Docket Number | No. 30613,30613 |
| Parties | R. L. SMITH v. Robert F. ABERCROMBIE, Probate Judge, et al. |
| Court | Georgia Supreme Court |
Dollar & Dittmering, James R. Dollar, Jr., Douglasville, for appellant.
William Tinsley, Hartley & Reid, George C. Reid, G. Michael Hartley, Douglasville, Arthur K. Bolton, Atty. Gen., Atlanta, for appellees.
We decide in this case the merit of the constitutional attacks made upon Ga.L.1975, p. 2512, a special Act which provides an election procedure for the recall of commissioners of Douglas County. 1 The trial court upheld the Act against the contentions of appellant, the previously elected Chairman of the Board of Commissioners, who was removed from office by the electorate at a recall election. A new election to fill this vacancy has been scheduled in Douglas County. Thus, the critical issues relating to the constitutionality of the Act that are considered in this appeal will determine whether the forthcoming election should be held to fill the office which was declared vacant by the voters. If the Act is valid, it is of public importance the election be held to fill the vacancy created by the earlier recall election. However, if the Act is found invalid, all proceedings thereunder are nugatory.
Appellant's first contention is that the advertised 'Notice of Intention' attached to the legislation failed to advise the citizens of Douglas County of the content of the local bill as required by Art. III, § VII, Par. XV of the Constitution of the State of Georgia (Code Ann. § 2-1915). No issue is made of the fact that the notice was run in the local newspaper the required number of times. The sole contention is that the notice was insufficient to advise the citizenry of the three local bills which were introduced at the same time. The advertisement notice that appeared provided that there would be introduced at the regular 1975 session of the General Assembly of Georgia a bill to amend an Act creating the Board of Commissioners of Douglas County, approved February 15, 1952 (Ga.L.1952, p. 2703), as amended; and for other pursposes.
The purpose of the notice requirement of Code Ann. § 2-1915 is 'to prevent local and special laws which affected only a particular locality . . . from becoming laws unless notice of intention to introduce such bills be given . . . preceding their introduction in the General Assembly . . . the object being to prevent duties and obligations being imposed on local govenments without giving those in charge of such governments an opportunity to oppose their passage.' Fleming v. Daniell, 221 Ga. 43, 45, 142 S.E.2d 804, 806 (1965). See also Brown v. Clower, 225 Ga. 165, 166 S.E.2d 363 (1969).
As to proof the notice was given, this court has stated that the notice must be part of the enrolled bill, but that 'when the enrollment of any local or special bill has incorporated therein the required proof of notice, and after it has been properly signed and filed with the Secretary of State, it will not only impute absolute verity as to its contents, but it will also conclusively show upon its face its validity with respect to the constitutional requirements as to proof of notice; whereas, if such enrollment fails to show the required proof of notice, it is upon its face invalid.' Smith v. McMichael, 203 Ga. 74, 78, 45 S.E.2d 431, 435 (1947). This presumption of validity was used to uphold as sufficient the notice given in Bleckley v. Vickers, 225 Ga. 593, 170 S.E.2d 695 (1969). In that case the notice was part of the enrolled statute and determined to be conclusive of its validity. Similarly, in this case, the notice is enrolled as part of the bill and is conclusive proof the notice was given.
We consider next whether the notice that was given was sufficient to put the citizens on notice about the subject matter of the proposed enactment. See Panlos v. Stephenson, 213 Ga. 816, 102 S.E.2d 165 (1958). In Walker Electrical Co. v. Walton, 203 Ga. 246, 46 S.E.2d 184 (1948), the notice advised that the Act creating the Civil Court of Fulton County would be amended. A statute was then passed changing the court's jurisdiction. The notice was held sufficient to advise the citizens that any legislation affecting the civil court 'within the range of legislative enactment' might be enacted. Thus specificity in the notice is not required by the Constitution. Cain v. Lumpkin County, 229 Ga. 274, 275, 190 S.E.2d 910 (1972). However, once specific matters are mentioned in the notice, matters foreign to those subjects may not constitutionally appear in the bill. See DeKalb County v. Atlanta Gas Light Co., 228 Ga. 512, 514, 186 S.E.2d 732 (1972); Stepp v. Lance, 233 Ga. 358, 211 S.E.2d 311 (1974).
The general notice here involved alerted the citizens of Douglas County of the intention to amend the Act creating the Board of Commissioners and thus gave notice of the broad range of possible legislative enactment. Under the principles of decision in the above cases this notice of intention was sufficient to satisfy the constitutional requirement of Code Ann. § 2-1915.
Several enumerations of error relate to appellant's argument that the legislature is prohibited by several sections of the Georgia Constitution and the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States from enacting a recall provision that affects only Douglas County Commissioners and not the commissioners of other counties. The trial court ruled that this Act does not violate Art. XI. § I, Par. VI of the Georgia Constitution (Code Ann. § 2-7806), requiring uniformity in county matters, or Art. I, § IV, Par. I of the Constitution of the State of Georgia (Code Ann. § 2-401) which prohibits enactment of a special law where provision has been made by an existing general law.
The Equal Protection Clause of the Fourteenth Amendment prohibits states from enacting laws which deny persons in the same class equal protection of the law. The legislature may define the classes as it chooses so long as the classification is not arbitrary and unreasonable. See McCullers v. Williamson, 221 Ga. 358, 365, 144 S.E.2d 911 (1965). There is nothing, however, in the Fourteenth Amendment that prohibits a state from creating different kinds of political subdivisions and providing a different process for selecting and removing officials in those subdivisions. See Missouri v. Lewis, 101 U.S. 22, 25 L.Ed. 989 (1879). The states have wide discretion in deciding whether a law should operate statewide or only in certain counties. See Griffin v. School Board of Prince Edward County, 377 U.S. 218, 231, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1963). Thus the General Assembly of Georgia may treat different counties differently by specifying the type of county government each shall have as long as it does not act arbitrarily under the Fourteenth Amendment. We do not believe the present Act is arbitrary or capricious since all the Douglas County Commissioners are subject to the recall procedure of the Act and there is nothing in the Fourteenth Amendment which prohibits this legislative scheme.
Appellant also asserts the present Act violates Art. XI, § I, Par. VI (Code Ann. § 2-7806) of the Georgia Constitution which provides, '(w)hatever tribunal, or officers, may be created by the General Assembly for the transaction of county matters, shall be uniform throughout the State . . . except that the General Assembly may provide for Commissioners of roads and revenues in any county . . . without respect to uniformity.' In addition, appellant contends the Act violates Art. VI, § XVII, Par. I (Code Ann. § 2-5201) which provides: 'The General Assembly shall have power to provide for the creation of county commissioners in such counties as may require them, and to define their duties,' and Art. I, § IV, Par. I (Code Ann. § 2-401) which provides: '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.'
This court has construed Code Ann. § 2-401 regarding special laws, together with Code Ann. § 2-5201 and Code Ann. § 2-7806, to impose very little restriction on the General Assembly in creating and defining the duties of county commissioners by special act. The law in Georgia under the Constitutions of both 1877 and 1945 has been that the 'General Assembly has the power to pass separate and distinct laws creating county commissioners of roads and revenues for every county in Georgia; and the provisions of general laws enacted by the legislature do not apply to such officers, unless made so by the special laws creating them.' Bowen v. Lewis, 201 Ga. 487, 489, 40 S.E.2d 80, 83 (1946). See also Hutchins v. Candler, 209 Ga. 415, 73 S.E.2d 191 (1952), and Rhodes v. Jernigan, 155 Ga. 523, 117 S.E. 432 (1923). There is no requirement of uniformity with regard to the powers and duties of county commissioners. See Robert v. Steed, 207 Ga. 41(3), 60 S.E.2d 134 (1950), and Wilson v. Jones, 218 Ga. 706, 710, 130 S.E.2d 227 (1963).
The Constitution gives the General Assembly the power to create and define the duties of boards of commissioners without regard to uniformity as Bradford v. Hammond, 179 Ga. 40, 47, 175 S.E. 18, 21 (1934).
Similarly, we find there has been no constitutional requirement of uniformity throughout the State in the method of removing county commissioners. For example, in 1909, the General Assembly enacted legislation creating and defining the duties of the...
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