SMITH v. CITY COUNCIL OF AUGUSTA

G. C. Smith, C. Y. Kreps, H. L. Baston, H. E. Kernaghan, and M. W. Edelstein, individually and as taxpayers and citizens of the City of Augusta, and in their representative capacities as members of the Civil Service Commission of the City of Augusta, filed in the Superior Court of Richmond County, Georgia on December 29, 1947, a petition in which the following were named as defendants: City Council of Augusta, W. D. Page, A. W. Lucky Jr., Arthur Balk, Frank Loyal, Thomas G. Bailie Jr., R. J. Wilkinson, Henry Giebner, Lawrence Carry, John W. Burke, L. E. Palmer, H. S. Cook, Ollie Williamson, James J. Harbin, A. H. Lehmann, John P. Cooney, and George J. Roark. It was alleged that an actual controversy existed between the parties as to the validity and constitutionality of an act of the legislature enacted in 1947 (Ga. L. 1947, p. 320), which was an amendment to the charter of the City of Augusta; and they sought a declaratory judgment as to the constitutionality of the act and the rights of the parties in the respects set forth in the petition. It was also prayed that the City of Augusta, the members of the city council named as defendants, George J. Roark, Mayor of the City of Augusta and designated as the City Manager under the said act, and all other officers, agents, employees, and representatives of City Council of Augusta, be restrained and enjoined from molesting or interfering with the operation and administration of the affairs of the police and the fire departments of the city by the Civil Service Commission of the city pending the final determination of the issue and the prayers of the petition.

W. D. Page, on December 31, 1947, filed an answer admitting all of the allegations of the petition, alleging that he was Mayor of the City of Augusta and was legislated out of office by the said act of 1947, and he prayed that the other defendants be enjoined from interfering with him in the performance of his duties as mayor.

Arthur Balk, John W. Burke, Henry Giebner, Frank Loyal, and H. S. Cook filed, on December 31, 1947, an answer admitting all the allegations of the petition, and alleging that under the old charter they were members of City Council of the City of Augusta and would hold over until their successors were elected and qualified, and praying that the other defendants be restrained and enjoined from interfering with them in the performance of their duties as such members as provided in the charter as it existed prior to the enactment of the alleged unconstitutional act of 1947.

James J. Harbin filed, on January 2, 1948, an answer admitting all the allegations of the petition, and praying that the court enter a declaratory judgment as prayed.

City Council of the City of Augusta, A. W. Lucky Jr., Thomas G. Bailie Jr., R. J. Wilkinson, Lawrence Carry, L. E. Palmer, Ollie Williamson, and John P. Cooney, on January 2, 1948, filed an answer setting up that the old charter of the City of Augusta had been repealed by the said act of 1947, that the act was constitutional, of full force and effect and valid in every respect, and that under its terms they constituted all the members of City Council of the City of Augusta and were entitled to conduct the affairs of the city; and that, as appears from the allegations of the petition and the answers of the other defendants, chaos and confusion would result in the administration of the affairs of the city council and in the conduct of the government of the City of Augusta unless the petitioners and the other defendants be enjoined from molesting or interfering with them in the exercise of their duties in the conduct of the government of the City of Augusta. They prayed for a declaratory judgment and that the petitioners and the other defendants be enjoined from molesting and interfering in any way with them in the exercise of their functions in the conduct of the government of the City of Augusta under the terms of the said act of 1947.

A. H. Lehmann filed, on January 2, 1948, an answer alleging that for want of sufficient information he could neither admit nor deny the allegations of the petition, but praying that the said act of 1947 be declared constitutional and valid in every respect.

The case came on for a hearing before the presiding judge. The petitioners introduced in evidence their verified petition and a certified copy of the enrolled act under consideration, certified by the Secretary of State; the said copy of the enrolled act as signed by the Speaker of the House and the presiding officer of the Senate, and approved by the Governor on March 24, 1947, not having attached thereto and made a part thereof a copy of a notice published in the newspaper in which the sheriff's advertisements for the locality affected are published, certified by the publisher, and neither was it, as certified, accompanied by an affidavit of the author of the bill to the effect that notice had been published as provided by law.

The verified answers of the defendants were introduced in evidence.

City Council of Augusta and the defendant members, A. W. Lucky Jr., R. J. Wilkinson, Thomas G. Bailie Jr., Lawrence Carry, L. E. Palmer, Ollie Williamson, and John P. Cooney, introduced in evidence a resolution adopted by City Council of Augusta on March 26, 1947, to the effect that, pursuant to the said act of 1947, a referendum election would be held on the first Wednesday in May, 1947, for the purpose of submitting to the qualified voters the question of the adoption of the provisions of the said act of 1947; also a copy of a notice which appeared in The Augusta Chronicle under dates of March 28, April 4, April 11, and April 18, 1947, as to the referendum election to be held as aforesaid; also a copy of the minutes of City Council of Augusta held on May 8, 1947, declaring the results of the referendum election held on May 7, 1947, the consolidated returns showing "for city manager government" 6010, and "against city manager government" 5149, and declaring the said act adopted in the said referendum election. The same defendants introduced in evidence, over objection of the petitioners, a certified copy of House Bill No. 51 as introduced in the House of Representatives on January 23, 1947, read the third time, and passed by the said House on January 29, 1947, the same being an exact copy of the said act as approved March 24, 1947, but not having affixed thereto the signatures of the Governor, the Speaker of the House and the presiding officer of the Senate. There was attached thereto and made a part of the said bill notice of intention to apply for passage of the act under consideration, and also affidavit of the publisher of The Augusta Chronicle as to publication of the notice on December 14, 21, and 28, 1946. Also attached was a certificate of the Secretary of State as to the correctness of the copy of the said House Bill No. 51. The petitioners objected to the admission in evidence of the said bill on the ground that it was irrelevant, immaterial, and illustrated none of the issues involved in the case, and for the further reason that the courts could not go behind the signature of the Governor, the Speaker of the House and the presiding officer of the Senate in determining what happened with reference to a bill pending in the General Assembly, and no sort of evidence should be allowed as against what was shown by the enrolled act itself.

The petitioners, G. C. Smith, C. Y. Kreps, H. L. Baston, H. E. Kernaghan, and M. W. Edelstein, were sworn as witnesses, and each testified that he had voted in the referendum election on the question of the adoption of the new city charter and had voted against the adoption. It was stipulated between counsel for all parties that the defendants, W. D. Page, Frank Loyal, Arthur Balk, John W. Burke, Henry Giebner, H. S. Cook, and James J. Harbin, would give similar testimony if called to testify.

The court, on January 3, 1948, entered the following order: "It is considered, ordered, adjudged, and decreed that pending the further order of this court: (1) G. C. Smith, C. Y. Kreps, H. L. Baston, H. E. Kernaghan, M. W. Edelstein, W. D. Page, Arthur Balk, John W. Burke, Henry Giebner, Frank Loyal Sr., H. S. Cook, James J. Harbin, and A. H. Lehmann, and all of their agents and employees and every other person whomsoever be and they are hereby restrained and enjoined from interfering with A. W. Lucky Jr., Thomas G. Bailie Jr., R. J. Wilkinson, Lawrence Carry, L. E. Palmer, Ollie Williamson, and John P. Cooney in the discharge of their duties under the act of the General Assembly of 1947 (Georgia Laws 1947, pages 320-346) as members of the City Council of Augusta or any other officers, agents, or employees of the City Council of Augusta in the discharge of their duties pursuant to the act of the General Assembly of 1947 (Georgia Laws 1947, pages 320-346). (2) That the prayers of petitioners and of defendants, W. D. Page, Arthur Balk, John W. Burke, Henry Giebner, Frank Loyal Sr., and H. S. Cook for injunctive relief be and the same are hereby denied."

The petitioners, by bill of exceptions in case No. 16154, assign error on such judgment, naming as defendants in error all of the defendants named in their original petition; and it is contended that the judgment is contrary to law because the act in question is violative of article 3, section 7, paragraph 15 of the Constitution of this State.

The petitioners, by bill of exceptions in case No. 16169, naming as defendants in error all of the defendants named in their original petition, assign error on the judgment of the court in admitting in evidence, over their objection, the resolution of the City Council of Augusta on March 26, 1947, providing for a referendum election as hereinbefore shown; it being contended that it was void and unconstitutional for the reason that the act of 1947 under consideration, providing for the said referendum election, was unconstitutional and void because in violation of article 3, section 7, paragraph 15 of the Constitution of this State, and because the act contained no provision authorizing the City Council of Augusta to call a referendum election. Error is also assigned on the admission in evidence, over their objection, of the aforesaid notice which appeared in The Augusta Chronicle on the dates mentioned, as to a referendum election on the first Wednesday in May, 1947; it being urged that the act did not provide for the publication of a notice of the referendum election, and therefore the notice was without legal authority, and also without legal effect because the notice published by the clerk of council was without authority and direction. Error is also assigned on the admission in evidence, over their objection, of a copy of the minutes of the city council held on May 8, 1947, declaring the results of the referendum election, on the ground that the act under consideration was unconstitutional and void and, accordingly, any referendum election held under it would be void and without legal effect. Error is also assigned on the admission in evidence, over their objection of copy of House Bill No. 51, upon the grounds of objection made when the evidence was offered and as hereinbefore stated. Error is also assigned upon the final judgment, it being contended that the act in question is a local or special bill and was passed in violation of article 3, section 7, paragraph 15 of the State Constitution, and a finding was demanded that it was unconstitutional and void.

The defendants, W. D. Page, Arthur Balk, Frank Loyal, Henry Giebner, John W. Burke, H. S. Cook, and James J. Harbin, by bill of exceptions in case No. 16180, naming as defendants in error the petitioners, assign error in the same respects as did the plaintiffs in error in case No. 16169.

DUCKWORTH, Presiding Justice. (After stating the foregoing facts)

1. The controlling question here is whether or not the charter amendment of the City of Augusta (Ga. L. 1947, p. 320) is valid under the Constitution, article 3, section 7, paragraph 15. The enrolled copy, which was signed by the presiding officers of the two branches of the General Assembly and approved by the Governor, does not have attached thereto and made a part thereof proof of the advertisement as required by the Constitution. This court held in Smith v. McMichael, 203 Ga. 74 ( 45 S.E.2d 431), that the absence of such proof of advertisement in the enrolled copy of a local bill rendered it unconstitutional and void. While this court had that case under consideration every phase of the question involved was thoroughly discussed and considered, and the opinion sets forth the reasons for the judgment there rendered. We deem it unnecessary to repeat here what was there said or to set forth further argument in support of that judgment. That decision is adhered to and requires a reversal of the judgment of the trial court, which held the present act to be constitutional.

2. There was no referendum in the Smith case, supra. It is, therefore, contended by counsel for the defendants in error here that, since the present act provided for a referendum and required that it be approved by a majority of the voters before it would become operative, the decision in the Smith case, supra, is not controlling here. It is contended that the wishes of the people affected should outweigh all other considerations when we come to pass upon the validity of the act. We recognize that the supreme authority in this State is the people, but the State Constitution was established by the people and must be obeyed, not only by the three coordinate branches of the government, but by the people as well. The clause of the Constitution here involved is a deliberate creation of the whole people, and it will not yield, so long as it remains a part of the Constitution, to the wishes or temporary convenience of anyone. This court has been repeatedly required to hold unconstitutional and invalid legislative acts which have been approved by the people affected in a referendum. Sellers v. Cox, 127 Ga. 246 ( 56 S.E. 284); Green v. Hutchinson, 128 Ga. 379 ( 57 S.E. 353); Pickering v. Campbell, 146 Ga. 636 ( 92 S.E. 74); Foster v. College Park, 155 Ga. 174 ( 117 S.E. 84). To uphold as valid an unconstitutional act simply because it has been approved by a vote of the people affected in a referendum for which it provides, would at once nullify such constitutional mandate as that a bonded indebtedness of a political subdivision should not exceed 7 percent of the appraised value of the taxable property therein. Article 7, section 7, paragraph 1, Code (Ann. Supp.), § 2-6001. If the people of this State desire to modify the Constitution so as to enable the courts to uphold legislative acts which have been approved in a referendum, although they do not conform to the requirements of the present Constitution, this can be done in a legal and constitutional manner by amending the Constitution to that effect. But the plain language of the Constitution, that "No local or special bill shall become law unless there is attached to and made a part of said bill a copy of said notice [of intention to apply therefor] certified by the publisher, or accompanied by an affidavit of the author, to the effect that said notice has been published as provided by law," makes no exception, and thus the court, in obedience to that provision of the Constitution, is without authority to make any exception.

But counsel for the defendants in error cite Paulsen v. Portland, 149 U.S. 30 ( 13 Sup. Ct. 750, 37 L. ed. 637); Key v. Wofford, 175 Ga. 749 ( 166 S.E. 204), and Johnson v. Arnold, 176 Ga. 910 ( 169 S.E. 505), maintaining that a city is a miniature State, that the council is its legislature, and the charter is its constitution. From this premise it is argued that the law regulating the adoption of amendments to the Constitution should apply in the adoption of amendments to a charter when submitted to a referendum. This argument overlooks the fundamental fact that the people, and not the legislature, write and give life to the Constitution, while the legislature, and not the people, write and give life to municipal charters. Counsel cite Cooney v. Foote, 142 Ga. 647 ( 83 S.E. 537, Ann. Cas. 1916B, 1001), and Walker v. East Rome, 145 Ga. 294 ( 89 S.E. 204), in support of the contention that the present act did not become law until and unless approved in a referendum, and say it was not such a law as contemplated by the Constitution and, hence, the constitutional requirement as to advertisement is inapplicable. The cases relied upon do not sustain the argument made. It was said by this court in Sellers v. Cox, supra, at page 255: "The plaintiffs do not undertake to set aside the election adopting the local act of 1905, but to assert that the General Assembly was without authority to pass that act, and nothing done at the election or afterwards could operate to render it a constitutional law. The position of the plaintiffs is unanswerable." Again, in Foster v. College Park, supra, it was said: "The referendum clause in the act of 1920 being void because of the conflict with the Constitution as above shown, it cannot be upheld as a valid referendum with the void portions stricken. The entire referendum clause is rendered void by the unconstitutional portion thereof. It having been held, in the next preceding headnote, that the referendum clause of the act of 1920 was unconstitutional and invalid, it necessarily follows that the election held under the authority of the same was also void and of no legal and binding effect."

The defendants in error do not, and indeed could not, contend that the act would ever become effective in the absence of its approval in the referendum, since by its terms it expressly provides for the referendum as a condition precedent to its operation. It is obvious, therefore, that the legislature intended the portions of the act providing for a referendum to become effective immediately upon its approval by the Governor. To become effective it must become a law, but under the Constitution the absence of the required proof of advertisement prevents it from becoming a law. It follows that the referendum was unlawful, and the result of the unlawful referendum was likewise unlawful. See Cox v. Hapeville, 203 Ga. 263 ( 46 S.E.2d 122).

3. Finally, counsel for the defendants in error contend that, even though the act be unconstitutional, this court should apply the doctrine of argumentum ab inconvenienti, as was done in Solomon v. Commissioners of Cartersville, 41 Ga. 157, Gormley v. Taylor, 44 Ga. 76, and Macon Augusta Railroad Co. v. Little, 45 Ga. 370. It is insisted that a judgment now holding the act invalid would create disorder and confusion in the city government, since the city is now organized and has been operating under the act since January, 1948. In the cases cited this court applied the doctrine in cases where to have held otherwise would have rendered void many legislative acts enacted over a long period of years and in reliance upon which private rights had been established. We have here an act approved in 1947 which by its terms could become operative on January 1, 1948. This record shows that, before the date on which it would become effective, the plaintiffs in error challenged its validity and sought in the trial court to secure a judgment holding it unconstitutional. Therefore, whatever action the city has taken in reliance upon this act was done with notice of the attack upon it and of the possibility that it would be held unconstitutional. The facts do not make a case authorizing the application of the doctrine invoked. As stated in the foregoing opinion, the Constitution makes no exception, and by its terms every local or special law must contain in its final form as approved by the legislature proof of its advertisement as there required. This court will uphold the Constitution and thus hold that no local bill shall become law unless thus enacted. The present act, being a local bill and failing to meet the requirements of the Constitution, is unconstitutional and void, the trial court erred in holding it valid.

Judgment reversed in each case. All the Justices concur. Jenkins, C. J., concurs specially.