City of Atlanta v. Associated Builders & Contractors of Georgia, Inc. , 240 Ga. 655 ( 1978 )

Marshall, Justice.

The question which this case presents concerns the constitutionality of an ordinance of the City of Atlanta (Section 31-41.11 as amended by Section 31.47(a), Code of Ordinances of the City of Atlanta) requiring workers on construction projects in excess of $10,000, which are funded by the city, to be paid a minimum wage which corresponds to the prevailing wage scale prescribed by the federal Davis-Bacon Act. 40 USC § 276 (a) et seq. The State of Georgia has established a minimum wage law requiring every employer, with certain exemptions not applicable here, to pay all covered employees a minimum wage which shall not be less than $1.25 per hour. Code Ann. § 54-1202 (Ga. L. 1970, p. 153). The Fulton Superior Court rendered a declaratory judgment that the city ordinance was in violation of Art. I, Sec. II, Par. VII of the State Constitution of 1945 (Code Ann. § 2-401; § 2-207 under the Constitution of 1976), which declares that no special law shall be enacted in any case for which provision has been made by an existing general law. The Court of Appeals affirmed the trial court in City of Atlanta v. Associated Builders &c. of Ga., 143 Ga. App. 115 (237 SE2d 601) (1977). We brought this case up on a writ of certiorari, and we reverse.

We really face two questions in this appeal: the specific question concerning the constitutionality of the municipal ordinance under attack and a broader question concerning the construction of the state constitutional provision under which it was struck down. Had Hamlet been the writer of this opinion, he might have framed this latter issue for decision thusly: Conflict or Preemption? That is the question. In other words, the question is whether that constitutional provision merely prohibits conflicts between general and special laws or whether it prohibits altogether the enactment of a special law when there is preemption by the state in that area of regulatory activity. The prior cases in this area are irreconcilable, and if there is any common analytical thread running though them which can be extracted therefrom and used as the basis for rendering a decision in a subsequent case, it escapes this reader’s detection. See, e.g., City of Atlanta v. Hudgins, 193 Ga. 618 (19 SE2d 508) (1942) and cits. The latest, and therefore controlling, pronouncement on this point is found in Powell v. Bd. of Commrs. &c. of Gwinnett County, 234 Ga. 183 (214 SE2d 905) (1975), which held that a local law prohibiting issuance of a beer and wine license to a business within 1,700 feet from a school was not rendered unconstitutional because of the existence of a state law making it illegal for any person to sell beer or wine within 100 yards of any school. This court stated, "[The state law] establishes only a 'minimum distance’ for the retail sale of wine and beer from a school or schoolhouse. We do not interpret this statutory restriction to mean that a local governing authority cannot establish, pursuant to its police power authority, a distance restriction that is greater than three hundred feet. We therefore hold that the ordinance is not unconstitutional.” Id., p. 185.

Therefore, the question under Powell is whether there is a genuine conflict between the special and general law, and the reasoning employed in that case mandates the conclusion that there is no unconstitutional conflict in this case between the state minimum wage law and the city ordinance. The local minimum wage law does not detract from or hinder the operation of the state law, but rather it augments and strengthens it.

Wilson v. City of Atlanta, 164 Ga. 560 (139 SE 148) which is in direct conflict with our holding today, is expressly overruled. Justice Hines, dissenting in the Wilson case, 164 Ga. at p. 564, expressed certain sentiments which we repeat here: "With the wisdom or folly of this ordinance the courts have nothing to do, if the mayor and general council of Atlanta had the authority to pass it, if it is not unreasonable, and if it does not violate the constitution of this State or the constitution of the United States. This ordinance may be a venture in municipal fraternalism which may prove of great benefit to the city, or it may be vicious or mischievous paternalism, which, like the cry of the Roman populace for 'bread and the circuses,’ will finally lead to the overthrow of our form of government. With these matters and considerations, however, the courts have nothing to do. The responsibility therefor rests upon the mayor and general council of the city, and not upon the courts. If that body fails to do what may be deemed wise and just, an appeal from that body lies to the voters. If unwise or vicious legislation is enacted by that body, and remains upon the municipal statute book, the fault is upon the voters. Its continuance is due to the unpardonable léthargy of the people. The courts can not strike down legislation, whether State or municipal, unless it plainly and palpably violates some provision of the Federal or State constitution, or municipal ordinances unless enacted without power of the city to pass them, or in contravention of State statutes or public policy. Atkin v. Kansas, 191 U. S. 207 (24 Sup. Ct 124, 48 L.ed. 148); Milwaukee v. Raulf, 164 Wis. 172 (159 N.W. 819).”

Judgment reversed.

All the Justices concur, except Hill, J., who concurs specially, and Jordan and Bowles, JJ., who dissent. Argued November 16, 1977 Decided February 7, 1978. Ferrin Y. Mathews, Isabel Gates Webster, Mary Carole Cooney, for appellant. Spencer Gandy, John Walton Henderson, Jr., Michael C. Fowler, for appellees.