Ellis v. City of Hapeville , 203 Ga. 364 ( 1948 )

In each of these cases, the plaintiff, suing for injunction and other relief, assailed the act approved March 28, 1947, purporting to extend the limits of the City of Hapeville, subject to referendum, as being unconstitutional and void for the reason that notice of intention to apply for such legislation was not published in accordance with article 3, section 7, paragraph 15 of the Constitution. Although the same act was held unconstitutional on substantially the same ground in Cox v. Hapeville, 203 Ga. 263 (46 S.E.2d 122), the plaintiff in that case alleged that he owned property in the proposed additional territory; while in the present cases it was not shown by either plaintiff that he owned property in the proposed additional territory, or that for any other reason he would suffer injury to person or property as a result of the alleged action of the municipal authorities of the City of Hapeville in seeking to assume jurisdiction and control over such territory. Accordingly, in the present cases, neither petition was sufficient to state a cause of action, and the court did not err in dismissing both petitions on general demurrer.

Nos. 16047, 16049. MARCH 17, 1948. The facts in case 16047 are as follows:

H. D. Ellis filed a suit in equity against the City of Hapeville and named individuals as the Mayor and Council. He alleged that the act of the General Assembly approved March 28, 1947 (Ga. L. 1947, p. 1395), purporting to extend the territorial limits of the City of Hapeville, subject to a referendum, is unconstitutional and void, because notice of intention to apply for such legislation was not published once a week for three weeks during the period of sixty days immediately preceding its introduction into the General Assembly, as required by article 3, section 7, paragraph 15 of the Constitution.

With respect to the publication that was made, the petition alleged that notice was published on November 14, November 21, and November 28, 1946, but was not thereafter again published; and that the bill proposing such legislation was not introduced until March 11, 1947, so that there was no publication at all during the period of sixty days immediately preceding its introduction.

The petition further alleged: By reason of the facts above stated, the City of Hapeville and the named governing authorities are without authority to exercise any jurisdiction whatever over the additional territory, as described in the act and also in the petition. The petitioner is a resident and citizen of said territory, and he brings this action on behalf of himself and other residents of said territory similarly situated.

After the passage of said act and under the purported authority therein contained, the defendants herein named have sought to assume jurisdiction and assert control over the above described territory, and said defendants are now contending that said territory constitutes a part of the City of Hapeville and is subject to control by said city and subject to all the powers that said city may have the right to exercise over its citizens, and that the citizens of said territory are now citizens of the City of Hapeville and subject to the obligations imposed by law upon the citizens of said city. Said defendants are without legal authority to exercise dominion or control over said territory or any of the citizens thereof, and said territory is not a part of the City of Hapeville.

Unless said defendants are restrained and enjoined from so doing, they will continue to seek to exercise dominion and control over said territory, and endeavor to collect taxes from the residents thereof, to impose license fees upon the persons engaged in business in said territory, and generally to deal with the citizens of said territory as legal residents of said city.

The petitioner is without adequate remedy at law in the premises, and is entitled to the protection of a court of equity.

Wherefore, the petitioner prays: (1) that said defendants be restrained and permanently enjoined from in any manner exercising or seeking to exercise dominion, control, or supervision of the territory herein above described or any of the residents or citizens thereof, and from in any manner dealing with said territory as a part of the City of Hapeville; (2) for general relief; and (3) for process. (There was no allegation that the plaintiff owned property in the proposed additional territory or that he was engaged in any business therein.)

The court sustained a general demurrer and dismissed the petition, and the plaintiff excepted.

In case 16049, the facts were the same, except that in the latter case the petition was brought by a different plaintiff, namely, K. B. Irvine. Since the allegations in the petitions are the same, we will dispose of the two cases together. In each case, the plaintiff alleged that the act approved March 28, 1947 (Ga. L. 1947, p. 1395), purporting to extend the territorial limits of the City of Hapeville, subject to a referendum, is unconstitutional and void, for the reason that notice of intention to apply for such legislation was not published "once a week for three weeks during a period of sixty days immediately preceding its introduction into the General Assembly," as required by article 3, section 7, paragraph 15 of the Constitution. Ga. L. 1945, pp. 23, 24, Code (Ann. Supp.), § 2-1915. The certified enrolled act in the office of the Secretary of State, like the one that was involved inSmith v. McMichael, 203 Ga. 74 (45 S.E.2d 431), is entirely silent as to publication and notice, and it is insisted by counsel for the plaintiffs in error that the present case is controlled by the Smith case and the more recent case of Cox v.Hapeville, (supra). In the latter case, the identical act relating to the City of Hapeville was held unconstitutional on substantially the same attack as is made in the present cases, and counsel for the city, defendant in error, concede that theCox case is controlling and requires a reversal in each of these cases.

If we were free to act on personal preference, we would doubtless accept the concession thus candidly made by counsel for the defendant in error. Whether we should do so, in any event, if the cases involved matters of purely private interest, yet, in view of the public nature of the questions presented, we consider that it is our duty to make an actual determination as to whether error was committed, and if not to affirm the judgments dismissing the petitions; also that in so doing we should apply the general rule that, if a judgment is right for any reason, it should be affirmed. Cox v. Atlanta, 186 Ga. 473 (1), 475 (198 S.E. 74). As to confession of error, see Williams v.Griffin Banking Co., 64 Ga. 179 (3); Turner v. Hardy,198 Ga. 626 (1) (32 S.E.2d 483); 5 C.J.S. 1377, § 1887.

With all deference to counsel on both sides, we are of the opinion that, except as to the constitutional question, the cases are not controlled by the ruling in the Cox case, supra, since in that case the petitioner alleged that he owned land in the proposed additional territory, and necessarily, therefore, his land would be subject to taxation, so as to make him a taxpayer, if the act should stand. Also in Smith v. McMichael, supra, the plaintiffs sought relief as citizens and taxpayers. In the case now before us, however, neither plaintiff alleged that he owned property in the proposed new territory, or was doing business therein, nor did either of these plaintiffs allege any other fact which might subject him to a claim for license fees, taxes, or other financial obligation, as a mere "resident and citizen" of the proposed territory. Nor was any personal interference alleged.

While it was alleged that the governing authorities of the City of Hapeville have sought to assume jurisdiction and assert control over such territory, and are contending that the citizens of said territory are now citizens of the City of Hapeville and are subject to the obligations imposed by law upon its citizens, and unless restrained and enjoined they will continue to seek to exercise dominion and control over said territory and will endeavor to collect taxes from the residents thereof, to imposed license fees upon persons engaged in business in said territory and generally deal with the citizens thereof as legal residents of said city — these allegations were not sufficient to show impending injury to person or property of either plaintiff, since, as indicated above, it was not shown by either that he owned property in such territory, or that for any other reason such claims and endeavors on the part of the municipal authorities would injuriously affect his personal or property rights.

Even as to a plaintiff who is a taxpayer, a court of equity will not enjoin an ultra vires act of municipal authorities, the doing of which can in no wise injuriously affect him. Blanton v. Merry, 116 Ga. 288 (42 S.E. 211). Nor will equity entertain a petition to enjoin enforcement of an alleged unconstitutional law where the complaint does not show that such enforcement is attempted against his personal or property rights.Plumb v. Christie, 103 Ga. 686 (2) (30 S.E. 759, 42 L.R.A. 181). The petitions here did not allege sufficient facts to authorize even an apprehension of injury in either respect. Accordingly, notwithstanding the particular statute was held unconstitutional in Cox v. Hapeville, supra, and the judgment dismissing the petition in that case was reversed, neither of the petitions now under consideration was sufficient to state a cause of action, and the judgments sustaining general demurrers and dismissing them must be affirmed. Reid v. Eatonton, 80 Ga. 755 (6 S.E. 602); City of Macon v. Hughes, 110 Ga. 795 (2), 805, 806 (36 S.E. 247); Hazelton v. Atlanta, 147 Ga. 207 (4) (93 S.E. 202); Perkins v. Madison, 175 Ga. 714 (3) (165 S.E. 811); Brimer v. Jones, 185 Ga. 747 (196 S.E. 435); Aiken v. Armistead, 186 Ga. 368 (3, 4) (198 S.E. 237); Zaring v. Adams, 188 Ga. 97 (3 S.E.2d 635); Wallace v. Atlanta, 200 Ga. 749 (38 S.E.2d 596).

Judgments affirmed. All the Justice concur, except Wyatt, J.,who took no part in the consideration or decision of thesecases.