Key v. Wofford , 175 Ga. 749 ( 1932 )

Per Curiam.

1. By section 215(b) of the act of 1913 amending the charter of the City of Atlanta (Ga. L. 1913, pp. 507, 599), it is provided as follows: “Whenever ten per cent, of the registered voters, as disclosed by registration sheets of the last preceding general municipal election, shall request, in a petition filed in the office of the clerk of council of said city, the submission of an ordinance or resolution, the substance of "which is incorporated in said petition, for adoption by vote of the people, an election shall be called therefor within thirty days after same has been read in council. If at said election said resolution or ordinance receives a majority of the votes cast, it shall become operative and can not be thereafter repealed except by an election similarly called. Provided, however, if the mayor and general council adopt the resolution or ordinance so petitioned for, then no election shall be called.” Under a proper construction of this statute, and especially in view of the language that “if at said election said resolution or ordinance receives a majority of the votes cast, it shall become operative and can not be thereafter repealed except by an election similarly called,” initiative and referendum are not provided for with respect to such a temporary administrative matter as awarding a contract for publishing legal advertisements to a particular news medium or journal for the period of one year. For this reason, and regardless of other considerations, the mayor and council properly denied a petition to call an election upon the following resolution: “ Resolved that the bid of The Journal of Labor for publishing the advertisements of marshal’s sales during 1932 be accepted.” See, in this connection, Murphy v. Gilman, 204 Iowa, 58 (214 N. W. 679); Dooling v. Fitchburg, 242 Mass. 599 (136 N. E. 616); Brazell v. Zeigler, 26 Okla. 826 (110 Pac. 1052); McKevitt v. Sacramento, 55 Cal. App. 117 (203 Pac. 132); Monahan v. Funk, 137 Ore. 580 (3 Pac. (2d) 778); 7 McQuillin on Municipal Corporations, § 351(c). In each of the following cases cited by counsel for the defendants in error, -the referendum was in reference to a matter or condition of a more or less permanent character, and those decisions are not in point: Hopping v. Richmond, 170 Cal. 605 (150 Pac. 977); State ex rel. Harlin v. Superior Court, 139 Wash. 282 (247 Pac. 4); Harbor Center Land Co. v. Richmond, 38 Cal. App. 315 (176 Pac. 50).

2. In this view it is unnecessary to determine whether the charter provision as quoted above should in all cases be limited strictly to legislative as distinguished from executive or administrative matters, or to rule upon other questions besides that referred to in the preceding note.

3. The conclusion reached in this case is not in conflict with the decision in Green v. Atlanta, 162 Ga. 641 (135 S. E. 84).

4. Under the above rulings, the trial court erred in overruling the demurrer to the petition for mandamus to require the mayor and council to call the election, and for injunction against further proceedings by the city toward awarding contract for legal advertisements. The court also erred in granting the temporary injunction. Judgment reversed.

All the Justices concur, except