Summary
In Barge v. Camp, 209 Ga. 38 (70 S.E.2d 360), the act under attack applied to counties in which is located a municipality with a population of 300,000 or more according to the census of 1950, or any future census, and the act related to the selection and employment of a police force in the unincorporated areas of such counties.
Summary of this case from Orr v. Hapeville Realty Investments, Inc.Opinion
17801.
ARGUED MARCH 11, 1952.
DECIDED APRIL 16, 1952.
Petition for injunction. Before Judge Hendrix. Fulton Superior Court. December 27, 1951.
Daniel Duke and Marvin O'Neal Jr., for plaintiffs.
J. C. Savage, J. C. Murphy, J. M. B. Bloodworth, John E. Feagin, Henry L. Bowden, Harold Sheats, Durwood T. Pye, E. A. Wright and Standish Thompson, for defendants.
1. A citizen and taxpayer of a county or municipality has a pecuniary interest in the sum made up from taxes, and this interest will authorize him to maintain an action to prevent an illegal diversion of tax money or property belonging to the county or municipality.
2. "While, under the Constitution, the judiciary has the power and duty to declare void legislative acts in violation of the Constitution of the State or of the United States, the conflict between the act and the fundamental laws must be clear and palpable before the act of the coordinate department of the government will be declared unconstitutional. It is the duty of courts to put such construction upon statutes, if possible, as to uphold them and carry them into effect."
3. "The General Assembly may make classification for the purposes of legislation and may enact general laws with reference to such classes. Where the basis of classification is that of population, in order to be a general law it is necessary that such classification shall be open to let in any county or city which by any future census might have the stipulated population." The act approved February 21, 1951 (Ga. L. 1951, p. 591) makes such a classification, and is general in terms, and founded upon a proper and legitimate basis of classification, and is general, and not special, legislation, though but a single county may now be embraced within the class affected by it.
4. A general law may be repealed or modified by another general law.
5. The act approved February 21, 1951 (Ga. L. 1951, p. 591) and the proposed contract between the Fulton County Commissioners and the City of Atlanta under the terms thereof are authorized by article 7, section 6, paragraph 1 of the Constitution of 1945 (Code, Ann., § 2-5901), and are not unconstitutional for any reason alleged in the plaintiffs' petition.
6. "The criticism of a statute duly enacted by the legislature of this State, upon the ground that it is void because contrary to public policy, is without merit."
7. The petition failed to state a cause of action, and the trial court did not err in sustaining the general demurrers thereto.
No. 17801. ARGUED MARCH 11, 1952 — DECIDED APRIL 16, 1952.
W. M. Barge, R. M. Moreland, and Clyde Morris Jr., as plaintiffs, alleging themselves to be taxpayers, citizens and registered voters of that portion of Fulton County without the corporate limits of the City of Atlanta, brought an equitable petition, against Thomas L. Camp, I. Gloer Haley, R. L. Doyal, J. H. Aldredge, and Jack Towns, Commissioners of Roads and Revenues of Fulton County, A. E. Fuller, County Manager of Fulton County, Mrs. Mabel Abbott MacNeill, Treasurer of Fulton County, G. Neal Ellis, Chief of the Fulton County Police Department, and the City of Atlanta, wherein they attacked the constitutionality of the act of the General Assembly approved February 21, 1951 (Ga. L. 1951, p. 591), upon various grounds which will be hereinafter referred to, and seek to enjoin the County Commissioners of Fulton County from entering into a contract with the City of Atlanta to supply police services in the unincorporated areas of Fulton County, to prevent them from transferring to the City of Atlanta all of the motor vehicles, crime-laboratory equipment, weapons, filing equipment, and other equipment of all kinds used by or assigned to the Police Department in the normal course of its operation, alleged to be of the value of $300,000, and to prevent the payment from the county treasury of approximately $131,000 to the City of Atlanta for such services, and to restrain and enjoin each and all of the defendants from doing anything or committing any act the effect of which will cause the property of the county to be transferred and delivered to the City of Atlanta, and from paying over to the City of Atlanta by check or otherwise any of the funds belonging to and in the treasury of the county, and to declare null and void the resolution attempted by the Fulton County Commissioners, and the proposed contract to be executed by them and the City of Atlanta under the terms of said act.
The act here attacked, which is an amendment to Chapter 23-14 of the Code, and which authorizes all counties of the State to elect or appoint county police, and to levy a tax for the expense thereof, provides substantially: (1) It applies to all counties in which there is located all or the greater part (of the population) of a city or municipality with a population of 300,000 or more, according to the U.S. census of 1950 or any future U.S. census. (2) It declares that police problems in large urban areas are different from those in less populated areas, and that it is more economical to have one large department than two or more small ones. (3) The act shall become effective on June 1, 1951, as to any counties to which it applies according to the U.S. census of 1950; and, as to any other counties as to which it shall become effective according to any future census, it shall become effective on June 1st of the first calendar year after the year in which such census was taken. In all counties in the latter category the year in which it becomes effective and the first year thereafter shall be substituted for the years 1951 and 1952, respectively, wherever such years are mentioned in the act. (4) The county commissioners of the counties involved shall determine what police services are needed in the unincorporated areas of the county and shall certify to the city involved the needs of the county for police services. (5) The city involved shall furnish to the county such services as are needed at actual cost. (6) Any county to which the act applies, desiring to have a county police force after the end of the year in which it is required to contract therefor shall not be authorized to have an independent police department. (7) The city policemen shall have power to make arrests outside the incorporated areas as well as inside. (8) The county shall transfer to the city all of the motor vehicles, crime-laboratory equipment, weapons, filing equipment, and other equipment of all kinds used by or assigned to the county police department prior to being discontinued, as required by the act.
It is alleged by the plaintiffs that under this act, the proposed contract between the county commissioners and the City of Atlanta pursuant thereto, and the transfer of property and the payment of money by the county authorities to the City of Atlanta thereunder, are all unconstitutional, illegal, and void because against the public policy of the State, and are violative of and repugnant to the following provisions of the Constitution of the State of Georgia:
Article 1, section 4, paragraph 1 (Code, Ann., § 2-401), which provides that "Laws of a general nature shall have uniform operation throughout the State, and no special law shall be enacted in any case for which provision has been made by an existing general law," in that the act by the classification therein contained applies only to Fulton County, and is in conflict with the general law of Chapter 23-14 of the Code providing for county police, and in conflict with the general law known as the County Purchasing Act of 1941 (Ga. L. 1941, p. 480), and in conflict with the general law contained in Code § 91-804 with respect to the manner of disposing of county property.
Article 11, section 1, paragraph 7 (Code, Ann., § 2-7807, dealing with the method of consolidating county and municipal governments, and article 15, section 1, paragraph 1 (Code, Ann., § 2-8301), dealing with the right of the General Assembly to provide for uniform systems of county and municipal governments and for optional plans of both, in that the act here merges and consolidates part of the county government with the city government, and accomplishes by piecemeal what these provisions of the Constitution prohibit being done as a whole except in the manner therein provided.
Article 7, section 4, paragraph 1 (8) (Code, Ann., § 2-5701), which authorizes a county to levy a tax to pay county police, and article 7, section 1, paragraph 2 (Code, Ann., § 5402), which provides that "The General Assembly shall not by vote, resolution or order, grant any donation or gratuity in favor of any person, corporation or association."
It is further alleged and insisted by counsel in their brief that the act here under attack is against the public policy of the State, and that it tends to impair the right of local self-government by the county authority and to centralize governmental power in the City of Atlanta.
It is contended that for all of these reasons plaintiffs, as taxpayers and citizens of the unincorporated area of the county, are being deprived of the equal protection of the law and of their rights and property without due process of law in violation of article 1, section 1, paragraph 1 (Code, Ann., § 2-101), paragraph 2 (Code, Ann., § 2-102), paragraph 3 (Code, Ann., § 2-103), and of the Fourteenth Amendment to the Constitution of the United States (Code, § 1-815).
To this petition as amended the defendants, except R. L. Doyal, interposed their general demurrers upon the grounds: that the petition stated no cause of action; that the alleged injury to the plaintiffs is vague, indefinite, and shows no damage, loss, or substantial injury to the plaintiffs' personal or property rights; that the petition is premature because any damage to the plaintiffs is speculative, apprehensive, and remote; that the plaintiffs are not as a matter of law entitled to any particular police protection, and the question of what protection will be afforded the unincorporated areas of Fulton County is a matter for the county commissioners to determine, and their discretion cannot be controlled by the court; that it affirmatively appears from the petition that all of the acts sought to be restrained can be legally done by the defendants under a contract with the City of Atlanta pursuant to the Constitution of 1945, and it appears affirmatively from the allegations of the petition that Fulton County and the City of Atlanta are proceeding in accordance with the said constitutional provisions and not otherwise.
There were various grounds of special demurrer by the City of Atlanta, but the special demurrers were not passed upon by the trial court, which sustained the general demurrers of the defendants and dismissed the petition. To this judgment the plaintiffs except.
1. The contention of the defendants in error that the plaintiffs have no right to maintain the present action is without merit. While no person will be heard to question the constitutionality of a statute except as it may infringe upon his personal or property rights, and an injunction will not be granted on mere apprehension, and a party suing as a taxpayer, in order to obtain such relief, must show that he is in danger of injury through loss of public funds or property ( Wallace v. City of Atlanta, 200 Ga. 749, 38 S.E.2d 596) — a citizen and taxpayer of a county or municipality has a pecuniary interest in the sum made up from taxes, and this interest will authorize him to seek to prevent an illegal diversion of tax money or property. This court has many times held that citizens and taxpayers of both counties and municipalities have such interest as will authorize them to maintain actions to enjoin the unlawful disposition of public funds or property. Morris v. City Council of Augusta, 201 Ga. 666, 669 ( 40 S.E.2d 710).
2-7. "While, under the Constitution, the judiciary has the power and duty to declare void legislative acts in violation of the Constitution of this State or of the United States, the conflict between the act and the fundamental laws must be clear and palpable before the act of the coordinate department of the government will be declared unconstitutional. It is the duty of courts to put such construction upon statutes, if possible, as to uphold them and carry them into effect." Lamons v. Yarbrough, 206 Ga. 50 (2) ( 55 S.E.2d 551, 11 A.L.R.2d 717). See also Stegall v. Southwest Georgia Regional Housing Authority, 197 Ga. 571 ( 30 S.E.2d 196). Keeping this in mind, is the act here involved subject to the various constitutional attacks made upon it? It is first insisted that the entire act is so hedged about and restricted that the possibility of other counties and municipalities ever being able to come within the classes defined therein is so remote and improbable that it excludes every municipality but Atlanta and could only apply to Fulton County, and is, therefore, a special law in contravention of article 1, section 4, paragraph 1 (Code, Ann., § 2-401) of the Constitution of 1945. In Murphy v. West, 205 Ga. 116 (1) ( 52 S.E.2d 600), it is said: "The General Assembly may make classification for the purposes of legislation and may enact general laws with reference to such classes. Where the basis of classification is that of population, in order to be a general law it is necessary that such classification shall be open to let in any county or city which by any future census might have the stipulated population." The act here under attack provides that it shall apply "in all counties of the State of Georgia in which there is located all or the greater part (of population) of a city or municipality with a population of 300,000 or more, according to the U.S. census of 1950 or any future U.S. census"; and by subparagraph (a) of section 9 of the act provision is made for the time when the act shall become effective in the counties to which it now applies, and in any county to which it may apply under any future census, thus by express terms being open to let in any county or city which by any future census might have the stipulated population. Thus it is an act relating to counties of a certain class, general in its terms, and founded upon a proper and legitimate basis of classification, and is general, and not special, legislation, though but a single county may now be embraced within the class affected by it. Abbott v. Commissioners of Fulton County, 160 Ga. 657, 663 ( 129 S.E. 38). This act differs from those dealt with in Gibson v. Hood, 185 Ga. 426 ( 195 S.E. 444); Christian v. Moreland, 203 Ga. 20 ( 45 S.E.2d 201); Hasty v. Hamrick, 205 Ga. 84 ( 52 S.E.2d 470); Calhoun County v. Early County, 205 Ga. 169 ( 52 S.E.2d 854), and other like cases, for the reason that in those acts the population classification was closed at both ends, within such a narrow range, and so hedged about that the possibility of other counties having such populations by any subsequent census was too remote to form a basis for a reasonable classification. Nor is the act void because in conflict with the general law providing for county police (Code, Chapter 23-14), for it is an amendment of this general law, and a general law may be repealed or modified by another general law. Stewart v. Anderson, 140 Ga. 31 ( 78 S.E. 457).
Nor is the act violative of or repugnant to article 11, section 1, paragraph 7 of the Constitution (Code, Ann., § 2-7807), dealing with the consolidation of county and municipal governments, or article 15, section 1, paragraph 1 (Code, Ann., § 2-8301), the home rule provision of the Constitution, dealing with the right of the General Assembly to provide uniform systems of county and municipal governments and for optional plans of both. The act does not undertake or purport to consolidate the county and municipal governments of Fulton County and the City of Atlanta, or to deal with the systems of government of either. Neither is it in conflict with the County Purchasing Department Act of 1941 (Ga. L. 1941, p. 408), or with Code § 91-804 with respect to the manner of disposing of county property. The transaction here under consideration does not come within the terms of either of those general laws.
It seems to us that a complete answer to all of the attacks made upon this act is to be found in article 7, section 6, paragraph 1 of the Constitution of 1945 (Code, Ann., § 2-5901), which provides: "(a) . . any . . municipality or county of this State may contract for any period not exceeding fifty years, with each other . . for the use by such subdivisions or the residents thereof of any facilities or services of the . . municipality [or] county . . provided such contracts shall deal with such activities and transactions as such subdivisions are by law authorized to undertake." Subparagraph (b) is as follows: "Any city, town, municipality or county of this State is empowered, in connection with any contracts authorized, by the preceding paragraph, to convey to any public agency, public corporation or authority now or hereafter created, existing facilities operated by such city, town, municipality or county for the benefit of residents of such subdivisions, provided the land, buildings and equipment so conveyed shall not be mortgaged or pledged to secure obligations of any such public agency, public corporation or authority and provided such facilities are to be maintained and operated by such public agency, public corporation or authority for the same purposes for which such facilities were operated by such city, town, municipality or county. Nothing in this section shall restrict the pledging of revenues of such facilities by any public agency, public corporation or authority." Certainly both the county and the City of Atlanta are authorized to furnish police protection and services, for in Henderson v. Heyward, 109 Ga. 373, 376 ( 34 S.E. 590, 47 L.R.A. 366, 77 Am. St. R. 384), it is said: "The police power of a State may be exercised by the General Assembly directly, or indirectly through the medium of the subordinate public corporations of the State." See also Shaver v. Martin, 166 Ga. 424, 425 ( 143 S.E. 402).
The proposed contract between the county and the city, copy of which is attached to the petition, provides that all equipment transferred by the county to the city shall be accepted and used by the city "in the performance of the terms and conditions and in furnishing the services contemplated herein," which is the policing of the unincorporated areas of Fulton County, the same purposes for which such equipment or facilities had previously been used. This answers the contention of the plaintiffs that 40,000 residents of the City of Atlanta who reside in DeKalb County will receive the benefit of this equipment. Under the terms of the contract and the provisions of the Constitution above referred to, these facilities and this equipment are not to be used for the benefit of the City of Atlanta or its residents, but for the benefit of the unincorporated areas of Fulton County, in which the plaintiffs reside. The act here attacked and the contract which it authorizes between the county and the city are specifically authorized under the constitutional provisions above quoted, and are both in strict compliance therewith. Therefore, the plaintiffs are not being deprived of equal protection of the law or of their rights and property without due process of law in violation of the State and Federal Constitutions.
Counsel for the plaintiffs argue most strenuously that to permit such a contract between counties and municipalities has a tendency to destroy local self-government by the county and to centralize governmental powers in the city; that the law is contrary to public policy, is unwise, and contrary to the inherent and inalienable rights of the plaintiffs to have a voice in the selection of the officers who will pass upon the qualifications and employ the police officers to furnish police protection in the unincorporated areas of Fulton County in which they reside. This court in Plumb v. Christie, 103 Ga. 686, 692 ( 30 S.E. 759, 42 L.R.A. 181), has said: "It is idle, in a court of law created for the purpose of declaring legal principles or passing upon legal rights of litigants at issue, to discuss 'inherent and inalienable rights', supposed to exist in the enlightened conscience or consciousness of mankind, yet undefined by any rule known to the organic or statute laws of a State. In discussing the validity of an act passed by the legislative branch of the government, no light can be gathered by an attempt to show that it contravenes the general purposes for which a free government is established. In all independent States and nations absolute power rests somewhere. In this country it is neither lodged with the executive nor the legislative nor the judicial branches of the government, nor with all combined; but sovereignty rests with the people of the several States. The ultimate source of legislative power is traceable to them; and in their sovereign capacity they have a right to frame laws for their own government, and for the regulation of human conduct on all matters over which exclusive power has not by them been delegated to the Federal government. Acting in their organized capacity, and under the forms of existing laws, they can rend asunder all bonds that are thrown as restraint around individual action, unbridle liberty, and make license as free as the winds of heaven, and as wild as the waves of the sea. They can, on the other hand, so frame their organic and statute law as to place upon their own necks a yoke as galling as ever serf carried under the edict of a despot. It is eminently in this sense that we live under a free government, which simply means a government created by the people, and which they are absolutely free to change or modify at their pleasure. It is worse than useless then for the courts to undertake to pass upon the validity of a statute by an inquiry as to whether or not it is just or oppressive. To enter into such a field of investigation would be like embarking upon the sea without rudder or compass. A law is not necessarily unconstitutional or otherwise invalid because it is unjust. We live under a constitutional government, and written laws; and the courts can enforce only such rights as they protect, and remedy such wrongs as they redress." This court has also held: "The criticism of a statute duly enacted by the legislature of this State, upon the ground that it is void because contrary to public policy, is without merit." Lott v. Board of Education of Hall County, 164 Ga. 863 (1) ( 139 S.E. 722).
The people of this State, the sovereign power, have spoken in the adoption of the Constitution of 1945, article 7, section 6, paragraph 1 (Code, Ann., § 2-5901), which specifically authorizes both the act here attacked and the contract which is proposed to be entered into between the County of Fulton and the City of Atlanta under the terms thereof. By that supreme law both the plaintiffs and this court are bound. Wheeler v. Board of Trustees of Fargo Consolidated School District, 200 Ga. 323 ( 37 S.E.2d 322).
What we have here held is not in conflict with the rulings of this court in Levine v. Perry, 204 Ga. 323 ( 49 S.E.2d 820). While it was there held that the County Commissioners of Glynn County could not delegate to the police commission there referred to the powers conferred upon the county commissioners to select, maintain, and operate a county police force, the police commission there involved, and to whom the powers referred to were to be delegated, was not such a governmental subdivision, municipality, or public authority as is referred to in article 7, section 6, paragraph 1 (Code, Ann., § 2-5901) of the Constitution, but was a creature or agent of the county commission, and therein lies the distinction between that case and this.
The petition failed to state a cause of action, and the trial court did not err in sustaining the general demurrers thereto.
Judgment affirmed. All the Justices concur. Wyatt, J., concurs specially.
I concur in the judgment for the reason that I am bound by former full-bench decisions of this court. It is my opinion that the classification based on population in this case, as well as the former decisions of this court on that question, are all wrong and should be overruled; but the court as now constituted is not willing to overrule the cases on this question.