Spence v. Rowell

Decision Date11 March 1957
Docket NumberNo. 19622,19622
Citation97 S.E.2d 350,213 Ga. 145
PartiesDeWitt T. SPENCE et al. v. O. B. ROWELL et al.
CourtGeorgia Supreme Court
Syllabus by the Court

1. Under Code, §§ 69-101 and 69-102 no local law which seeks to repeal an existing charter of a city having less than 50,000 inhabitants, or which by amendment materially changes the form of government of a city having such a population or substitutes officers for municipal control other than those in control under the existing charter becomes effective until ratified by a majority vote of the qualified voters of the municipality to be affected voting at an election called and held for that purpose by the governing authorities of such municipality.

2. The words 'city' and 'town' are not synonymous. The provisions of Code, §§ 69-101 and 69-102 expressly apply only to incorporated cities of less than 50,000 inhabitants, and the judiciary of course has no right to extend their application to incorporated towns of less than 50,000 inhabitants.

DeWitt T. Spence and two others, alleging themselves to be residents and taxpayers of the Town of Lilburn, filed a suit in the Superior Court of Gwinnett County against O. B. Rowell, R. P. Pickens, H. C. Peevy, N. J. Nash, Hoyt E. Gresham and E. W. Bramblett. The petition alleges: By an act which was approved on July 27, 1910, Laws 1910, p. 863, the legislature incorporated the Town of Lilburn in Gwinnett County and fixed its corporate limits at three-eighths of a mile in every direction from the courthouse in Berkshire Militia District. The act named a mayor and four councilmen as the governing body of the town and provided for the election of their successors. In 1933 or 1934 the officers of the town ceased to function as such, and in 1939 the legislature expressly repealed the incorporating act or 1910. Laws 1939, p. 1139. The Town of Lilburn has never had a population of 1,000 inhabitants. In 1955, the legislature incorporated the City of Lilburn and fixed its corporate limits at one and one-fourth of a mile in every direction from the intersection of Main and Lula Streets in the newly incorporated area. Laws 1955, p. 3306. The act included all of the area incorporated in 1910 as the Town of Lilburn and other contiguous territory. It named the defendants, other than Bramblett, as mayor and councilmen respectively of the city, and provided for the election of their successors in office. The defendants, other than Bramblett, were re-elected to their respective offices and pursuant to authority contained in section 11 of the act they, as mayor and councilmen, elected the defendant Bramblett as the city's chief of police. Neither the repealing act of 1939 nor the incorporating act of 1955 became effective, since no election for that purpose was called and held as required by Code, §§ 69-101 and 69-102. The defendants, without any legal right so to do, are performing and exercising over the petitioners and the other residents of the area embraced in the act of 1955 all of the powers conferred upon such officers by the incorporating act of 1955; and to prevent such unauthorized action, the petitioners have no adequate remedy at law. Besides for process, rule nisi and service, the prayers are: (1) that the defendants be enjoined, temporarily and permanently, from performing any of the powers enumerated in the act of 1955 and from exercising any municipal control over the petitioners and the other residents of the area embraced in the act; that the act of 1955 be declared of no force and effect; and that the petitioners be granted such other relief as they may be entitled to under the allegations of their petition and the evidence. There was no demurrer to the petition; but, by their answer, the defendants averred that the City of Lilburn was legally incorporated by the act of 1955; that they had been elected to and were rightfully holding their respective offices, and that they were exercising no municipal control over the petitioners and the other residents of the city other than that authorized by the act of 1955.

At an interlocutory hearing, the plaintiffs introduced in evidence their verified petition, and the defendants likewise introduced in evidence their verified answer. It was stipulated that the population of the Town of Lilburn and the City of Lilburn had at all times been far less than 50,000. The evidence shows, without dispute, that the mayor and councilmen of the Town of Lilburn ceased to function in 1933 or 1934; that no corporate acts were thereafter performed by them or any successors in office; and that no election, as provided for by Code, §§ 69-101 and 69-102, was called and held for the purpose of determining whether or not the act of 1939 or the act of 1955 should become effective. The judge refused to grant the temporary injunction prayed for, and the exception is to that judgment.

Henry M. Henderson, Thomas Hal Clarke, Paul H. Anderson, Atlanta, for plaintiff in error.

Allison, Pittard & Webb, Lawrenceville, for defendant in error.

CANDLER, Justice (after stating the foregoing facts).

1. Code, § 69-101 declares: 'No local law seeking a repeal of a municipal charter of a city of less than 50,000 inhabitants or an amendment to any municipal charter of a city of less than 50,000 inhabitants, which amendment materially changes the form of government of a municipality or seeks to substitute officers for municipal control other than those in control under the existing charter, shall become effective until such repeal or amendment shall be voted upon by the qualified voters of the municipality to be affected as hereinafter provided.' And Code, § 69-102 provides that, where by local law the charter of a city having less than 50,000 inhabitants is repealed, or where by local law the form of government of a city having less than 50,000 inhabitants is materially amended or seeks to susbstitute officers for municipal control other than those in control under the existing charter, it shall he the duty of the city authorities to call an election to be held within 30 days from the call to determine whether a majority of the qualified voters of such municipality will ratify or reject such local law; but that the provisions of this section shall not be effective and the city authorities shall not be required to call shch election, 'unless a petition signed by more than one-fifth of the qualified voters of such municipality shall be filed with the officers of such municipality within 60 days from the passage of said bill requesting that such election be called.' These two sections were codified from an act which the legislature passed in 1925 as amended by an act which it passed in 1927, Ga.L.1925, p. 136; Ga.L.1927, p. 244. The original act applied only to cities of less than 200,000 inhabitants. In Souther v. Butler, 195 Ga. 566, 24 S.E.2d 668, it was held that a local act which materially changed the City of Dalton's form of government did not become effective since the city had less than 50,000 inhabitants, and the city's governing body did not call an election for the purpose of giving the qualified voters thereof an opportunity to ratify of reject the local act until five years after its passage, and where no petition signed by more than one-fifth of the city's qualified voters asking for such an election was filed within 60 days from its passage by the General Assembly. See also Hoover v. Brown, 186 Ga. 519, 198 S.E. 231.

2. We will now deal with the act of 1939, for if that act legally repealed the act of 1910 which incorporated the Town of Lilburn, then for no reason alleged or shown is the act of 1955 which incorporated the City of Lilburn ineffective. Do the provisions of Code, §§ 69-101 and 69-102 apply to the repeal of a charter granted to a town having a population of less than 50,000, as they do to a city having such a population? We do not think so. The legislative power of this State is by the Constitution vested in a General Assembly which consists of a Senate and House of Representatives. Const. art. 3, § 1, par. 1, Code Ann. § 2-1301. A municipal corporation is a political division of the State, and is a public corporation, having for its object the administration of a portion of the power of government delegated to it for such purpose. Code, § 22-103. Penick v. Foster, 129 Ga. 217, 58 S.E. 773, 12 L.R.A.,N.S., 1159, 12 Ann.Cas. 346; Maner v. Dykes, 183 Ga. 118, 121, 187 S.E. 699. It is a creature of the General Assembly and its charter powers may by enlarged, lessened, or completely withdrawn at the will of its creator, Hogg v. City of Rome, 189 Ga. 298, 6 S.E.2d 48; Schneider v. City of Folkston, 207 Ga. 434, 62 S.E.2d 177; and this court, in construing and applying any statute enacted by that body which has the effect of limiting its constitutional power to do so, will adhere to the plain language of such an act. See Boston v. Cummins, 16 Ga. 102. Under article 6, section 2, paragraph 4 of the Constitution of 1945, the Supreme Court has jurisdiction over writs of error respecting enumerated subjects from the superior courts and the city courts of Atlanta and Savannah and such other like courts as have been or may be established in other cities. Code Ann. § 2-3704. The Constitution of 1877 contained the same provision. In Wight & Weslosky Co. v. Wolff, 112 Ga. 169, 37 S.E. 395, 397, it was unanimously held that the Supreme Court did not have jurisdiction over a writ of error from the 'city court' of the Town of Camilla, since Camilla was not a city. In that case Mr. Justice Cobb and Mr. Justice Fish filed a concurring opinion, in which they said: 'The General Assembly has the right to incorporate Camilla as a city, but until this is done it remains the Town of Camilla. * * * As long as Camilla remains an incorporated town, a city court, within the meaning of the constitution, cannot be created within that town, for the simple reason that...

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  • Gravitt v. Olens
    • United States
    • Georgia Court of Appeals
    • July 16, 2015
    ...its object the administration of a portion of the power of government delegated to it [by the State] for such purpose.”Spence v. Rowell, 213 Ga. 145, 148, 97 S.E.2d 350 (1957). A municipality “is held to be a portion of the sovereign power of the State” (Penick v. Foster, 129 Ga. 217, 221, ......
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    • Georgia Court of Appeals
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    ...They all simply dovetail. State legislative control over municipal corporations extends to the amendment of charters. Spence v. Rowell, 213 Ga. 145, 97 S.E.2d 350 (1957). In amending its charter, a municipality must comply with the procedure prescribed by the organic law authorizing such am......
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