Stephenson v. Benton
| Decision Date | 16 March 1983 |
| Docket Number | No. 39139,39139 |
| Parties | STEPHENSON, et al. v. BENTON. |
| Court | Georgia Supreme Court |
James H. Archer, College Park, for Tommy Stephenson et al.
John Terry Brown, Commerce, Jack S. Davidson, Davis, Davidson & Hopkins, Jefferson, for Eddie Benton.
Benton brought this action for declaratory judgment, naming as defendants Stephenson, individually and as mayor of Commerce, Georgia, and two Commerce city councilmen, individually and in their official capacity. In his action Benton sought to determine whether, under the city charter and code, the mayor of Commerce has a power of veto over the election of the city attorney by a majority of the city council. The trial court held that the mayor has no such veto authority. We affirm.
Benton was duly elected to succeed himself as Commerce city attorney at the January 11, 1982 meeting of the mayor and city council. The following day, Stephenson vetoed the election and sought, along with councilmen Pardue and Sosebee, to have Dan Moore elected city attorney. Moore was nominated but failed to garner the required majority vote. No other nominations have been made.
The Commerce city charter provides for the election of a city attorney at the first regular meeting of the mayor and city council. 1909 Ga.Laws 667-68. The city code states: Code of City of Commerce § 3, p. 45 (1935). The council may override the mayor's veto by a two-thirds vote. Id.
1. Relying on § 3 of the city code, Stephenson contends that the veto power of the mayor of Commerce, made express as to "ordinances, rules and resolutions," extends by implication to the election of the city attorney as well. We do not agree.
Mayoral vetoes of elections or appointments by a city council are generally disfavored. 3 McQuillian on Municipal Corporations § 12.74 (3d ed. 1982). In Allen v. Wise, 204 Ga. 415, 419, 50 S.E.2d 69 (1948), this court acknowledged that "courts generally do not favor the view that administrative acts [of a city council] can be vetoed ...," but distinguished these authorities as "not in point where the veto power is specifically granted." In the Allen case the city charter of Savannah granted the mayor authority to veto ordinances and resolutions passed by the city council. The court upheld the mayor's veto of a motion passed by the council discharging the city comptroller on the grounds that the council's action was in effect a resolution and thus a proper subject matter of veto under the charter. Likewise, in City of Ludowici v. Brown, 249 Ga. 857, 295 S.E.2d 90 (1982), we recently held that a mayoral veto of the appointment of a police court reporter by the city council was authorized where the city charter granted the mayor veto power over "any resolution or ordinance passed by the council" and "any measure passed by the council."
The provisions of the charter and city code of Commerce distinguish this case from both Allen v. Wise and Brown, supra. Here the council's appointment of Benton as city attorney is plainly characterized as an "election" by the Charter. Such an election is not subject to the mayor's veto power as set out in the city code. The code provides that the mayor shall not vote, unless there is a tie, "[i]n all elections, as well as in the passing of all ordinances, rules, etc ..." Immediately thereafter, the code further provides that the mayor may veto "[a]ll ordinances, rules, and resolutions passed by the Council ..." We construe the code's exclusion of elections from the mayor's veto power to mean that the city fathers did not intend to grant the mayor of Commerce the power to veto the council's election of a city attorney. See City of Macon v. Walker, 204 Ga. 810, 51 S.E.2d 633 (1949).
We recognize that slight differences in the language of applicable city charters and codes may require different results in cases which are otherwise strikingly similar. Each case turns on the particular language of the city laws in question. See City of Ludowici v. Brown, supra. We merely hold that where city laws distinguish between elections, resolutions, and ordinances, then grant a mayoral...
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