Brown v. City of Atlanta

109 S.E. 666, 152 Ga. 283, 1921 Ga. LEXIS 78
CourtSupreme Court of Georgia
DecidedNovember 17, 1921
DocketNos. 2681, 2682, 2688
StatusPublished
Cited by20 cases

This text of 109 S.E. 666 (Brown v. City of Atlanta) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. City of Atlanta, 109 S.E. 666, 152 Ga. 283, 1921 Ga. LEXIS 78 (Ga. 1921).

Opinion

Hill, J.

(After stating the foregoing facts.)

1. On August 19, 1918, the legislature passed an act (Acts ■1918, p. 915) proposing an amendment to the constitution of the State of Georgia, as follows: “Deserving to the municipal cor[288]*288porations the benefit of all provisions of the constitution of force in this State, the General Assembly is hereby empowered to authorize any municipal corporation within the State, having a population of one hundred and fifty thousand or more, according to the census of the United States government taken next preceding the approval of any act passed in pursuance hereof, to incur a bonded debt or debts for the public purposes- of such municipality, the said debt or debts so to be incurred to be for such sums and to be secured after such manner, and to be paid, principal and interest, at such times and such places and by such means and upon such terms as the General Assembly may prescribe. Provided, however, that no act conferring the powers aforesaid, or any of them, shall become operative until the same shall have been affirmed at a general election held for the election of a mayor and general council in such municipality by two. thirds of the qualified voters thereof who may vote at said election. Such two thirds to constitute at least a majority of the qualified voters of said municipality.” This proposed amendment to the constitution of the State was subsequently ratified by the people at a general election held in November thereafter, and is known as the Atkinson amendment, so called because it was introduced and pressed to passage by the late lamented Judge Spencer R. Atkinson, a former member of this court. The bond election held, on March 8, 19B1, as set out in the foregoing statement of facts, was evidently held with reference to the time of its holding under the constitutional provision as it existed prior to the amendment above set out. This provision is as follows: “ The debt hereafter incurred by any county, municipal corporation, or political division of this State, except as in this constitution provided for, shall not exceed seven per centum of the assessed value of all the taxable property therein ; and no such count}, municipality, or division shall incur any new debt, except for a temporary loan or loans to supply casual deficiencies of revenue, not to exceed one fifth of one per centum of the assessed value of taxable property therein, without the assent of two thirds of the qualified voters thereof at an election for that purpose, to be held as may be prescribed by law; but any city, the debt of which does not exceed seven per centum of the assessed value of the taxable property at the time of the adoption of this constitution, may be authorized by law to increase, at any time, the [289]*289amount of said debt, three per centum upon such assessed valuation ; ” etc. The intervenor in the present case contends that the constitutional amendment referred to above is exclusive so far as the City of Atlanta is concerned, inasmuch as the City of Atlanta has a population of one hundred and fifty thousand and more, and therefore that it falls within the class to which the amendment exclusively applies; and that the City of Atlanta, after the adoption of the Atkinson amendment to the constitution, must vote bonds, if at all, as provided in the constitutional amendment, and that it could not vote for bonds under any other provision of the constitution. With reference to this phase of the case, therefore, the question is whether the above constitutional amendment of 1918, known as the Atkinson amendment, is exclusive, or whether it is merely cumulative of the power to issue bonds under that provision of the constitution last above quoted. We are of the opinion that the amendment is not exclusive, but is merely cumulative. It will be observed that the first sentence of the amendment begins with “Reserving to municipal corporations the ben-' efit of all provisions of the constitution in force in this State, the General Assembly is hereby empowered,” etc. This language is broad enough to cover all the municipal corporations of the State, including Atlanta with her population of more than one hundred and fifty thousand. This amendment was evidently passed and adopted with the view to authorizing cities of the class indicated to incur a bonded debt or debts for the public purposes of such munieipalit)', without- reference to the amount of such bonded indebtedness, etc., because the amendment provides that the debts so to be incurred may be “for such sums and to be secured after such manner, and to be paid principal and interest at such times and places and by such means and upon such terms as the General Assembly may prescribe.” It will be seen, therefore, that there is no limit as to the amount of the debt to be incurred or the time when such principal and interest may become due under the amendment to the constitution. But, in order to safeguard the taxpayers of the municipality against an unreasonable and unlimited amount of bonds being issued, no doubt, it is provided that no aci conferring the powers above mentioned shall become operative until the same shall have been affirmed at a general election held for the election of a mayor and general council in such municipality [290]*290by two thirds of the qualified voters thereof who may vote at such election, etc. The amendment is not, therefore, self-executing. It requires an enabling act to carry it into effect; and while such enabling act was passed (Acts 1919, p. 260), it has never been ratified or adopted by the City of Atlanta as required by the amendment to the constitution, so far as the record discloses, and it is inoperative until it has been so ratified. Therefore the City of Atlanta, while coming within the class designated in the Atkinson amendment, still has the power and authority to issue municipal bonds under art. 7, sec. 7, par. 1, of the constitution of the State of Georgia (Civil Code of 1910, § 6563), as quoted above; ■and this election was evidently held under this provision of the constitution. We are of the opinion that neither the legislature nor the people meant by the Atkinson amendment to take away from municipalities of the class designated in that amendment the right to issue bonds; and if the Atkinson amendment is held to be exclusive, it would have that effect, inasmuch as the enabling act has never been, and may never be, ratified or affirmed. The enabling act of 1919, supra, passed in pursuance of the constitutional amendment, provides that municipal corporations of this State having a population of one hundred and fifty thousand or more are empowered and authorized to incur a bonded debt or debts for the public purposes of such municipality, provided that the issuance of such bonds “is voted affirmatively at a general election held at the same time that the election of the mayor and general council of such municipalities is held, by two thirds of the qualified voters thereof who may vote at said election, said two thirds to constitute at least a majority of the qualified voters of such municipality.” It is contended by the intervenor that the present bond election is invalid, because it was not held at a general election held at the same time that the election of mayor and general council of the City of Atlanta was held. As said above, the Atkinson amendment not being exclusive nor self-executing, but only cumulative, “ an election for that purpose, to be held as may be prescribed by law,” and in conformity with art. 7, sec. 7, par.

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Bluebook (online)
109 S.E. 666, 152 Ga. 283, 1921 Ga. LEXIS 78, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-city-of-atlanta-ga-1921.