Village of North Atlanta v. Cook, 22201

• Citation: 219 Ga. 316,133 S.E.2d 585
• Decision Date: 14 October 1963
• Docket Number: No. 22201,22201
• Parties: VILLAGE OF NORTH ATLANTA et al. v. Eugene COOK, Attorney General, et al.
• Court: Supreme Court of Georgia

Page 585

133 S.E.2d 585

219 Ga. 316

VILLAGE OF NORTH ATLANTA et al. v. Eugene COOK, Attorney General, et al.

No. 22201.

Supreme Court of Georgia.

Oct. 14, 1963.

Syllabus by the Court

1. Members of the General Assembly can not be made parties defendant in an action for declaratory judgment asserting the unconstitutionality of a provision of an Act of the General Assembly passed at a legislative session of which they were members, solely on the basis of acts done by them in their official capacity.

2. Members of the General Assembly can not be restrained from introducing legislation to effect a designated purpose at a subsequent legislative session.

3. The petition as amended did not state a cause of action against any of the defendants.

T. B. Higdon, Sheets, Parker & Webb, Atlanta, for plaintiffs in error.

James A. Mackay, J. Robin Harris, Decatur, Roland Neeson, Atlanta, for defendant in error.

HEAD, Presiding Justice.

On May 13, 1963, the Village of North Atlanta, a municipal corporation; the Mayor, members of the City Council, and City Clerk of North Atlanta; the members of the North Atlanta Charter Committee; and the members of the North Atlanta-DeKalb County Joint Planning Commission; in their official capacity, and individually, filed an action for declaratory judgment and injunction against the DeKalb County legislative delegation composed of Senators W. Hugh McWhorter, Ben F. Johnson, and H. McKinley Conway, Jr., and Representatives James A. Mackay, Guy W. Rutland, Jr., and J. Robin Harris; and the Honorable Eugene Cook, Attorney General. It was alleged that: The charter committee presented a draft of a legislative charter for the Village of North Atlanta to the DeKalb legislative delegation. This original bill was not passed but a substitute bill was passed. In the original bill the legislative charter was to be submitted to the voters of North Atlanta for approval or rejection. In the substitute bill the voters were given a third choice, that of voting for the surrender of the present charter. The referendum clause of the act passed by the General Assembly is unconstitutional for stated reasons. The act imposes on the Mayor and City Council the duty of calling the election. They are advised that the provision requiring a vote on the surrender of the existing superior court charter of the Village of North Atlanta is unconstitutional. 'They are therefore confronted with the choice of declining to comply with the direction to call the election under the referendum as now enacted, or of calling it and thereby in effect possibly signing their own official death warrant.'

The prayers were for a declaratory judgment as to the constitutionality of the referendum clause of the charter; that the court direct the Mayor, City Council, and City Clerk (all petitioners) not to issue any call for an election until determination of the constitutionality and legality of the provisions objection to; and that the defendants be restrained and enjoined from taking any action for the enforcement of the provisions objected to in the referendum clause.

The trial judge ordered the defendants to show cause on September 10, 1963, why the prayers of the petition should not be granted, and restrained the Mayor, City Council, and City Clerk from issuing any call for the referendum election. Roland Neeson, an attorney of DeKalb County, filed an application for leave to appear before the court as amicus curiae, asserting that the charter act provided that a referendum must be held within ninety days after its approval by the Governor, and that such ninety days would expire before the date set for a hearing on the petition. The trial judge passed an order allowing Neeson to appear as amicus curiae. On May 24, 1963, the trial judge revoked the restraining order previously entered, and ordered the Mayor and Council to issue a call for the election pursuant to the provisions of the act.

On June 14, 1963, the plaintiffs amended their petition by striking certain paragraphs and inserting in lieu thereof new paragraphs asserting the unconstitutionality of the provision of the Act allowing the voters to vote for the surrender of the charter. It was prayed that Roland Neeson be added as a party defendant.

After a hearing on the matter on June 14, 1963, the trial judge entered an order dismissing the petition, as amended, on the general demurrer of the DeKalb legislative delegation, and the exception is to this judgment.

1. The Constitution, Art. III, Sec. VII, Par. III (Code Ann. § 2-1903), in dealing with the legislative department of the State Government, provides as follows: 'The members of both Houses shall be free from arrest during their attendance on the General Assembly, and in going thereto, or returning therefrom, except for treason, felony, larceny, or breach of the peace; and no member shall be liable to answer in any other place for anything spoken in debate in either House.' This provision is similar to that in the Constitution of the United States in regard to Senators and Representatives in the Congress. Code § 1-120. In Kilbourn v. Thompson, 103 U.S. 168, 201-205, 26 L.Ed. 377, the immunity provision of the United States Constitution was held to include all of the things generally done in a session of the House of Representatives in relation to the business before it. In Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019, in the consideration of an action initiated in the United States District Court for the Northern District of California against members of a California legislative committee, and others, the Supreme Court of the United States reviewed something of the history of the privilege of legislators to be free from arrest or civil process for what they do or say in legislative proceedings, both in the English Parliament and in the early days of the founding of this nation. It was there stated: (P. 377 of 341 U.S., p. 788 of 71 S.Ct., 95 L.Ed. 1019) 'The claim of an unworthy purpose does not destroy the privilege. Legislators are immune from deterrents to the uninhibited discharge of their legislative duty, not for their private indulgence but for the public good. One must not expect uncommon courage even in legislators. The privilege would be of little value if they could be subjected to the cost and inconvenience and distractions of a trial upon a conclusion of the pleader, or to the hazard of a judgment against them based upon a jury's speculation as to motives. The holding of this Court in Fletcher v. Peck, 6 Cranch 87, 130, 3 L.Ed. 162, that it was not consonant with our scheme of government for a court to inquire into the motives of legislators, has remained unquestioned.'

While we have been unable to find any case in our court in which an action has been brought against State legislators in connection with their legislative acts, this court has uniformly held that the courts will not inquire into the motives of a municipal council in the enactment of an ordinance. Clein v. City of Atlanta, 164 Ga. 529(4), 139 S.E. 46, 53 A.L.R. 933; South Georgia Power Co. v. Baumann, 169 Ga. 649, 151 S.E. 513; Barr v. City Council of Augusta, 206 Ga. 750(4), 58 S.E.2d 820.

The allegations of the petition in the present case show no fraud or corruption on the part of the DeKalb County legislative delegation, nor that they exceeded the bounds of their legislative powers in the matters complained of in the petition. It is within the discretion of the General Assembly to amend any proposed legislation presented to it if it deems that such amendment is to the best interest of a majority of those persons affected by the legislation. The fact that members of a legislative delegation might differ with the authors of a proposed bill as to the matters which the bill should include could not make a legal controversy between them which could be resolved by the courts in a declaratory...