Town of Roswell v. Ezzard , 128 Ga. 43 ( 1907 )

Evans, J.

(After stating the. foregoing facts.)

1. The primary point of difference between the litigants in this ■case is whether any part of Milton county is embraced within the limits of the town of Eoswell. The town contends that the small parcel of land included within the dotted lines in the northeast corner of the foregoing map lies in the county of Milton, and is embraced within its municipal limits. The defendant in error, ■on the other hand, denies that any portion of Milton county is included within the corporate limits of the town. The basis of this dispute arises from a construction of the act of 1883, defining the boundaries of Boswell. A reference to this act, as quoted in the statement of facts, shows that the General Assembly evidently had in mind that Ox-bow creek crossed the northern boundary of land lot 427, whereas, in truth, this creek does not traverse that lot, but crosses lot 450, in the same tier of lots with 427, and adjacent thereto. Both sides recognize the soundness of the principle stated in the case of Warren v. Branan, 109 Ga. 835, that it is essential, for the validity of an act incorporating a town, that the territory included in the municipal corporation shall be so well defined and clearly bounded that the legislative intent may be ascertained and given effect. The town contends, that it was the purpose of the legislature to prescribe, for the northern boundary of the municipality,- an east and west line running along the northern boundary line of lots 388, 411, and'-427, to a point on Ox-bow creek; that though it was erroneously stated that the point of intersection would occur on the northern line .of lot 427, the legislative purpose would be accomplished by an extension of this-line beyond lot 427 in an easterly direction until it intersects Oxbow creek.' In support of this contention our attention is called to the general rule relating to the location of the boundaries in a deed, that where one of the calls is for a natural boundary, and the-next call is- to an established line or.a- natural boundary, the line designated by the last call will be projected to the natural boundary. (Bowe v. Cape Fear Lumber Co., 133 N. C. 433); and it is insisted that the same rule is applicable to the interpretation of the legislative acts incorporating towns and villages. A° case much in point to support this view is that of In re Ipswich, 13 Pick. 431, where it was said: “In the act incorporating the town of Hamilton the boundary line is described as 'running by Ipswich river to a wall, etc., then by said wall/ etc. The wall was nearly at right angles to the river, and from the end of it was a wooden fence about two rods, and beyond that the bank was so steep that a fence was unnecessary. ■ It was held that the boundary line did not cross the river diagonally to the end of the wall, but that it followed the thread of the river until it came to a point at which the wall, if protracted, would intersect the thread of the river, and thence, making an angle, it took the line of the wall.” But this construction of calls, whether found in a deed or in a legislative act, is subject to the'limitation that the directions, indicated by the calls shall be considered in connection with all the calls; and, when this rule of construction is being applied to a legislative act, not only should all of the calls defining the territorial limits of the incorporated town be considered, but also the intent of the legislature, as gathered from its various enactments, as to whether the territory intended to be included within* a town lies within a particular county, or whether the descriptions of the borindaries are without reference to the county in which the town would be located.

The town of Boswell had its municipal birth in the county of Cobb. The original act of its creation, in its first section, declared that “the village at and around the factory buildings of the Boswell Manufacturing Company, in the county of Cobb, in this State, embracing an area of one mile in every direction from the Presbyterian Church in said village, be and the same is hereby incorporated by the name and style of the. town of Boswell.” The seventh section of the act declares that the intendant of the town, and each member of the board of commissioners, to all intents and purposes shall be a justice of the peace, so far as to enable them or any of them to issue warrants for all offenses committed within the town, to discharge, bind over, or commit such offenders to jail, “and the jailor of said county of Cobb is required to receive and keep in the common jail of said county all such offenders as may be committed as aforesaid, till discharged by due course of law; and in the event of the inability of the persons so committed to pay the jail fees, the said' corporation shall be liable for the payment of the same.” The amendment changing the corporate limits recognized the location of the town of Boswell in Cobb county. The title of the act of 1883 is, “An act to amend the charter of the town of Boswell, Cobb county, Georgia, by changing the corporate limits of said town, and for other purposes.” The only part of the original act of incorporation affected by the amending act was that prescribing its.boundaries. The very title of this amendment recognized the location of the town of Boswell in Cobb county. The act of 1883 does not undertake to amend either the caption of the original act or the seventh section thereof, which confers upon the municipal officers the authority of a justice of the peace in so far as they may hold courts of inquiry and commit offenders to 'the common jail of Cobb county. It does not change the provision in the original act requiring the jailor of Cobb county to receive and safely keep all persons committed thereto by the intendant and commissioners of the town until discharged by' due course of law. And the legislative purpose to include the town of Boswell in Cobb county has been indicated in all of the various acts referred to in the statement of facts. When the county of Milton was created, the boundary line between it and Cobb county was carefully defined so as to exclude Boswell from the new county. We gather from these three legislative enactments an -express intent that the territorial limits of the town of Boswell should be embraced in the county of Cobb. We will therefore give effect to this legislative purpose by declaring the eastern and northern boundary lines of the town of Boswell under the act of 1883 to be as follows: Beginning where "Vickery creek empties into the Chattahoochee river, and running north along this creek to the mouth of Ox-bow creek, thence north along Ox-bow creek until the county line between Oobb county and Milton county is reached, thence along the line between the two counties to the northern line of 427, thence west along the northern line of lots 427, 411, and 388. Giving this construction to the act, the territory within the municipal limits of the town of Boswell, as defined by the act of 1883, lies exclusively within the limits of Cobb county.

2. One point raised by the demurrer is that the petition does not disclose that the-plaintiff would sustain damage unless the writ of injunction should issue. While it may be true that a citizen has no vested right to determine in what particular political division of the State the spot he selects for his residence shall remain (Hamrick v. House, 17 Ga. 57), yet he may protest against the enforcement of a law designed to change his domicil, under circumstances where it is shown the law has no application. See Mayor of Macon v. Hughes, 110 Ga. 796. The municipal authorities of Boswell were manifesting a purpose to effectuate the results, of the election, held under the act of 1906, to change the lines between Cobb and Milton counties. This act had no application to the town of Boswell, which lay wholly in.Cobb county. Plaintiff is a citizen of Cobb county, and a taxpayer' and citizen of the town of Boswell, and as such has a direct interest in preserving the territorial integrity of his county, and the right to protest against an illegal change of his domicil. A court of equity will not turn a deaf ear to his complaint that the municipality, under color of law, is attempting to change his domicil, and require him to meet each new condition resulting from such attempt by a separate proceeding. Why wait until the tax-collector of the county to which he is sought to be transferred proceeds to enforce the payment of tax, or he is summoned to do jury duty, or attempts to vote, before making the point that his residence was not changed by this election, when all of these and sundry other complications may be avoided by the grant of an injunction?

3. The town of Boswell was a proper and necessary defendant. Under the act of 1906 the municipal authorities took the initiative in putting that act into effect. The act provides that “the municipal authorities of said town or city shall submit the matter as herein provided to the lawful voters of said municipality.” The matter referred to is a change of county lines so as to include the entire municipal territory within the confines of one of the counties. The act requires the mayor and clerk of the town or city to certify the result of the election to the ordinaries or county commissioners of each of the counties affected. When the result of the election has been so certified by the mayor and clerk, the act declares that “the said municipal and county authorities shall thereupon proceed to readjust and change the lines of the ■counties affected in such manner as to include the said municipality wholly within the limits of the particular county fixed upon by said election, and shall cause a description and map of the new lines to be filed and recorded in the offices of the clerks of the ■superior courts of each county affected, and shall cause an official notice of the change and description to be published once a week for four weeks in a public gazette in their respective counties,” etc. The prayer of the petition is not only to enjoin the town from ■certifying the result, but also to enjoin the municipality from proceeding to readjust and change the lines between the counties as provided by the act of 1906.- This latter duty is imposed upon the municipal authorities, in the performance of which they do not act as individuals, but in behalf of the municipality. It is municipal action, and the municipality is the proper party to enjoin from sucb action. As the act imposes the duty of certifying-the result of the election on the mayor and clerk is nominibus,, and not upon the municipality, they were necessary parties to enjoin the certification of the result of the election in the prescribed method. Even though the mayor and the clerk should be necessary parties to a proceeding to enjoin the certification of the election, the municipal corporation was a proper and necessary party where it was sought to enjoin municipal action by the municipal authorities.

The foregoing discussion disposes of all the questions necessary for an adjudication of the case, and we forbear discussing the constitutional and other questions raised by the record.

Judgment affirmed, with direction.

Fish, O. J., absent. The-other Justices concur.