Opinion
14871.
FEBRUARY 8, 1944.
Petition for injunction. Before Judge Boykin. Carroll superior court. February 8, 1944.
J. L. Smith, for plaintiffs. Boykin Boykin, for defendants.
Where county authorities seek to lay out and establish a new militia district by organizing the new district from a part of the territory of an existing district, it is mandatory that both the territory comprising the new district and that remaining in the old district shall each contain, within their limits, at least 100 male persons over 21 years of age liable to militia duty.
( a) Where, by the establishment of a new militia district, an existing district is left with less than the required number of persons liable to militia duty, an order, by the proper county authority, approving the report of commissioners appointed to lay out and establish the new district, is void, can have no lawful operation, and should be so declared by the superior court when the question of its validity is properly presented.
Hamp Chappell, as commissioner of roads and revenues of Carroll County, sought to establish a new militia district by dividing Smithville District No. 1006, into two parts and creating a new district to be known as Kirby District No. 1883. On December 20, 1943, he appointed J. M. Spruell and two others, all citizens of the territory which would be included in the new district, as commissioners, with directions to lay out and define such lines and territory as should compose the new district. On December 21, 1943, these commissioners filed a report with Chappell, attaching a plat of the proposed new district, and requesting that the report be approved and the new district be declared duly laid out. On the same day, Chappell approved the report creating Kirby Militia District No. 1883, and entered the same on the minutes of the commissioner of roads and revenues of Carroll County, and directed that a copy of the proceedings be mailed to the Governor of Georgia, as required by law. A copy of the proceedings was mailed to the Governor, and was also published in the Carroll Free Press, the legal organ of said county.
On January 22, 1944, W. B. Johnson and other citizens of Smithville District No. 1006 filed a petition in equity against Hamp Chappell, as commissioner of roads and revenues of Carroll County, and W. B. Johnson and the other two appointed as commissioners to lay out and define the lines of the new district, alleging the facts above set forth. The petition alleged further that after the advertisement had been run for thirty days, an election would be called to elect officers in said proposed district. Also, in paragraph eleven, the petitioners made the following allegations: "Petitioners further show that the order appointing said commissioners and their return, and the order approving their return and the certifying of the same to the Governor, and in causing same to be published in the legal organ of said county, is illegal, null, and void for the reason that there was not, at the time said appointments and orders, left residing in the old district of 1006 one hundred male citizens between the ages of 21 and 45 residing in the part of militia district 1006 as left by the purported survey and plat of the new proposed district of Kirby No. 1883, and said proposed district can not be legally carved out of militia district 1006 without leaving in said old district one hundred male citizens between the ages of 21 and 45, subject to militia duty." The prayers were: (a) for process; (b) that the defendants be enjoined from further proceeding to establish the said militia district, and from calling and holding an election for justice of the peace or constables, and from further publication of notice of the proceedings; (c) that a decree be entered decreeing and adjudging the order appointing the commissioners, their return, and the order approving the same, to be null and void, and of no effect; (d) for a rule nisi; and (e) for general relief.
Upon the hearing, the trial judge sustained a general demurrer to the plaintiffs' petition; and to this order the plaintiffs excepted.
(After stating the foregoing facts.) The law in relation to the creation of new militia districts is contained in the Code, §§ 23-201 et seq. Section 23-203 declares: "Each district hereafter organized or changed must contain within its limits at least 100 male persons over 21 years of age, resident at the time of the organization, liable to militia duty, and in its formation must not leave any older district with a less number." Section 23-204 declares: "Whenever it may be necessary and expedient to lay out a new militia district, or to change the lines of old ones, or to consolidate or abolish old districts, the ordinary may, at any time, appoint three commissioners, citizens of the district or districts from which it is proposed to make the new district, or change the lines thereof, whose duty it shall be to lay out and define such lines, and report the same to the said ordinary." Section 86-201 fixes the maximum age of those subject to militia duty at forty-five years.
In the creation of a militia district, the proper county authority is vested with certain discretionary powers, such as whether or not a new district should be created, or what citizens of the district should be appointed to act as commissioners, or where the boundary lines of the new district should be established, provided the territory embraced in the new district otherwise meets the requirements of the law. Where the proceedings conform to the statute, such acts are within the discretion and judgment of the proper county authorities, and are final. They are political, or legislative, rather than legal, and the exercise of the discretion of the county authority in determining such questions, in the absence of fraud or the wilful abuse of discretion in determining such questions, could not be made the subject of review by the superior court or by this court. Hillsman v. Harris, 84 Ga. 432 (1, 2) ( 11 S.E. 400); Hudson v. Sullivan, 93 Ga. 631 ( 20 S.E. 77); Dew v. Smith, 130 Ga. 564 ( 61 S.E. 232). But this discretion would in no way grant to the county authority any power to create a militia district that did not conform to the requirements of the law as contained in the Code, § 23-203, which provides that there must be contained in both the new and the old district at least 100 male persons over 21 years of age subject to militia duty. This provision is mandatory, and a proceeding which seeks to create a new district, but leaves an old district with less than the required number of male persons subject to militia duty, is repugnant to this provision of the Code. An order so approving and establishing such a militia district would be void, and could have no lawful or practical operation; and it is within the power of the superior court, and of this court, to so declare when the question of its validity is properly presented for adjudication. Howell v. Kinney, 99 Ga. 544 ( 27 S.E. 204).
The petition in the instant case alleged that in the attempt to establish the new district the original district was cut into two parts, and that portion remaining in the original district was left with less than the required number of male persons subject to militia duty. This allegation being true, and it must be so taken in passing on a general demurrer, the order approving the report of the commissioners and establishing the new district was void, and the trial judge erred in sustaining the general demurrer to the petition.
Judgment reversed. All the Justices concur.