Opinion
29534.
DECIDED APRIL 25, 1942. REHEARING DENIED MAY 20, 1942.
Motion to set aside judgment vacating charter; from Fulton superior court — Judge Dorsey. September 17, 1941.
Ossie N. Singleton, Jackson L. Barwick, Cecil V. Whiddon, for plaintiffs.
John A. Boykin, solicitor-general, E. A. Stephens, William E. Spence, Durwood T. Pye, for defendant.
The assignment of error on a dismissal of a petition seeking to set aside an order of a judge of a superior court rendering void a previous order creating a municipal charter does not present a justiciable question which this court has authority to review.
DECIDED APRIL 25, 1942. REHEARING DENIED MAY 20, 1942.
On October 15, 1940, during the September term of court of the same year, A. M. Bell and others applied for a municipal charter under the name Liberty Valley, Inc. On the application thus made and presented, a judge of the superior court of Fulton County passed the following order of incorporation: "Came on to be heard the petition of the qualified voters of the territory included in the description contained in the foregoing petition, and the court having heard said petition, and also having presented to the court a certificate from the Secretary of State declaring that the name of the proposed village incorporation is not the name of any other existing incorporated village by the name of Liberty Valley, Inc., registered in the records of the Secretary of State, and being satisfied that the same is in accordance with the law and that all requirements of the law with reference to incorporating a village have been complied with, it is ordered, adjudged and decreed, that the clerk of this court is directed to issue a certificate of incorporation of such village. . . And it appearing to the satisfaction of the court that the provisions of the Code have been satisfactorily complied with by the applicants for said incorporation, the said village of Liberty Valley is duly authorized within the corporate limits aforesaid to exercise all of the corporate powers conferred by the legislature of the State of Georgia from and after the date of this certificate. . . It is further ordered that upon and after the date of such certificate the territory embraced within the boundaries mentioned therein shall be incorporated village under name of Liberty Valley, Inc."
On December 13, during the November term, 1940, the same judge, ex parte and without notice to either Liberty Valley, Inc., or the applicants for the charter, passed the following order: "The court having, on October 15th, 1940, signed an order purporting to incorporate as a municipal village, a community lying in Fulton, Gwinnett, and Forsyth counties, the boundaries of which are set out and fixed in a petition entered on the Charter Docket of the office of clerk of Fulton superior court under number 16400, and purporting to impose on said community the name of `Liberty Valley, Inc.' and to vest in said community and the citizens thereof all the rights, privileges, and powers conferred by the law of this State on municipal corporations generally; and the court having acted under a misapprehension as to the nature of the proposed corporation, believing he was dealing with an application for charter for an ordinary commercial organization; and the court recognizing that there is no authority in law for the incorporation of a rural community into a municipal corporation by the superior courts of this State, whatever legal authority for such action by the court having been repealed on March 20th, 1939 (see Georgia Laws 1939, pages 329, 330); and it having just come to the attention of the court for the first time that said order of October 15th, 1940, purported and undertook to grant a charter to petitioners for a municipal corporation or village; it is considered, ordered, and adjudged by the court that said order signed October 15th, 1940, purporting to grant a charter to petitioners and their associates for a municipal corporation, under the name of `Liberty Valley Inc.' is a nullity; that the said order be and the same is hereby revoked; that any and all authority to do and perform any functions of a governmental nature, under the guise of a municipal corporation, is hereby withdrawn from petitioners and all the inhabitants and citizens in the territory sought to be incorporated under the name of `Liberty Valley, Inc.'; and that the status of said territory and of the inhabitants and citizens therein stands on the same footing of local government as if said order of October 15th, 1940, had never been signed. Let this order be spread upon the minutes of the court and a copy of the same be served upon Judge John Bell for himself, and his copetitioners, by the sheriff, or any lawful deputy. This the 13th day of December, 1940."
On July 16, 1941, A. M. Bell and others, as Liberty Valley, Inc. filed in the superior court of Fulton County a petition to set aside the order rendered on December 13, 1940, which nullified the order of October 15, 1940. A hearing on this petition was set for August 22, 1941. Lucien Bell filed in the proceeding to set aside the order of December 13, 1940, an intervention in the nature of an answer. This intervention was allowed. The substance of the intervention was to the effect that the authority conferred by the act of 1872 (Ga. L. 1872, p. 16), as amended by the act of 1874 (Ga. L. 1874, p. 44), had been repealed by the act of 1939 (Ga. L. 1939, p. 329). The intervention prayed that the petition to set aside the order of December 13, 1940, be dismissed. When this proceeding came on for hearing the judge of the superior court of Fulton County passed the following order sustaining the prayer of the intervention: "The above and within motion coming on to be heard, and after hearing the same it is ordered that the same is dismissed." A. M. Bell and those joining in the petition to set aside the order of December 13, 1940, filed a direct bill of exceptions, alleging that the judge erred in passing the order last-above mentioned.
Several questions are presented by the bill of exceptions and argued here, but we think one is controlling and disposes of the case without considering the others. That question is whether the record as detailed above presents a justiciable question. It is our opinion that it does not. Conceding for the purpose of determination of the issue now before us, but not deciding it, that a judge of the superior court had the authority, on October 15, 1940, to incorporate a municipality as set forth under the act of 1874, as contended by the plaintiffs in error, this court is without authority to review an order of incorporation passed pursuant to the authority conferred by such legislative act. In Mangham v. Mallory, 128 Ga. 430 ( 57 S.E. 688), that court held: "There is no provision in the law which authorizes any one to appear and object to the granting of the order directing the clerk of the superior court to issue the certificate of incorporation as provided in the Political Code, § 687, which provides for the granting of an order by the superior court directing the clerk of the superior court to issue the certificate of town or village; nor is there any provision for the review by this court, by writ of error or otherwise, of the action of that court in granting the order. This being so, the motion to dismiss the writ of error in this case must prevail." The Mangham case was cited approvingly in Shreve v. Pendleton, 129 Ga. 374, 377 ( 58 S.E. 880, 12 Ann. Cas. 563). Plaintiffs in error cite the Shreve case as favorable to their contentions. Upon a careful reading of the Shreve case we find that it is authority contrary to the contentions of plaintiffs in error and is in accordance with the rulings announced in the Mangham case. In this connection we call attention to In Re Union Club, 142 Ga. 261 ( 82 S.E. 643). In the last-cited case the court, dealing with corporations other than municipal corporations, cited approvingly Mangham v. Mallory and Shreve v. Pendleton, supra.
We are not unmindful that the proceeding before us deals with the order of December 13, 1940, which at a subsequent term of court and by the court's own motion, ex parte and without notice, purported to nullify the order of October 15, 1940, which purported to create a municipal corporation, and we are not unmindful that this is the gravamen of the argument of the plaintiffs in error on the particular question before us. Be it so, the whole proceeding from its inception throughout was dealing with the same subject matter over which this court is without authority of review.
Judgment affirmed. Broyles, C. J., and MacIntyre, J., concur.