Smith v. Abercrombie

221 S.E.2d 802, 235 Ga. 741, 1975 Ga. LEXIS 980
CourtSupreme Court of Georgia
DecidedDecember 4, 1975
Docket30613
StatusPublished
Cited by15 cases

This text of 221 S.E.2d 802 (Smith v. Abercrombie) 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
Smith v. Abercrombie, 221 S.E.2d 802, 235 Ga. 741, 1975 Ga. LEXIS 980 (Ga. 1975).

Opinions

Ingram, Justice.

We decide in this case the merit of the constitutional attacks made upon Ga. L. 1975, p. 2512, a special Act which provides an election procedure for the recall of commissioners of Douglas County.1 The trial court upheld the Act against the contentions of appellant, the previously elected chairman of the Board of Commissioners, who was removed from office by the electorate at a recall election. A new election to fill this [742]*742vacancy has been scheduled in Douglas County. Thus, the critical issues relating to the constitutionality of the Act that are considered in this appeal will determine whether the forthcoming election should be held to fill the office which was declared vacant by the voters. If the Act is valid, it is of public importance the election be held to fill the vacancy created by the earlier recall election. However, if the Act is found invalid, all proceedings thereunder are nugatory.

Notice of the Recall Legislation

Appellant’s first contention is that the advertised "Notice of Intention” attached to the legislation failed to advise the citizens of Douglas County of the content of the local bill as required by Art. Ill, Sec. VII, Par. XV of the Constitution of the State of Georgia (Code Ann. § 2-1915). No issue is made of the fact that the notice was run in the local newspaper the required number of times. The sole contention is that the notice was insufficient to advise the citizenry of the three local bills which were introduced at the same time. The advertisement notice that appeared provided that there would be introduced at the regular 1975 session of the General Assembly of Georgia a bill to amend an Act creating the Board of Commissioners of Douglas County, approved February 15, 1952 (Ga. L. 1952, p. 2703), as amended; and for other purposes.

The purpose of the notice requirement of Code Ann. § 2-1915 is "to prevent local and special laws which affected only a particular locality ... from becoming laws unless notice of intention to introduce such bills be given .. . preceding their introduction in the General Assembly . . . the object being to prevent duties and obligations being imposed on local governments without giving those in charge of such governments an opportunity to oppose their passage.” Fleming v. Daniell, 221 Ga. 43, 45 (142 SE2d 804) (1965). See also Brown v. Clower, 225 Ga. 165 (166 SE2d 363) (1969).

As to proof the notice was given, this court has stated that the notice must be part of the enrolled bill, but that "when the enrollment of any local or special bill has incorporated therein the required proof of notice, and after it has been properly signed and filed with the [743]*743Secretary of State, it will not only impute absolute verity as to its contents, but it will also conclusively show upon its face its validity with respect to the constitutional requirements as to proof of notice; whereas, if such enrollment fails to show the required proof of notice, it is upon its face invalid.” Smith v. McMichael, 203 Ga. 74, 78 (45 SE2d 431) (1947). This presumption of validity was used to uphold as sufficient the notice given in Bleckley v. Vickers, 225 Ga. 593 (170 SE2d 695) (1969). In that case the notice was part of the enrolled statute and determined to be conclusive of its validity. Similarly, in this case, the notice is enrolled as part of the bill and is conclusive proof the notice was given.

We consider next whether the notice that was given was sufficient to put the citizens on notice about the subject matter of the proposed enactment. See Panlos v. Stephenson, 213 Ga. 816 (102 SE2d 165) (1958). In Walker Electrical Co. v. Walton, 203 Ga. 246 (46 SE2d 184) (1948), the notice advised that the Act creating the Civil Court of Fulton County would be amended. A statute was then passed changing the court’s jurisdiction. The notice was held sufficient to advise the citizens that any legislation affecting the civil court "within the range of legislative enactment” might be enacted. Thus specificity in the notice is not required by the Constitution. Cain v. Lumpkin County, 229 Ga. 274, 275 (190 SE2d 910) (1972). However, once specific matters are mentioned in the notice, matters foreign to those subjects may not constitutionally appear in the bill. See DeKalb County v. Atlanta Gas Light Co., 228 Ga. 512, 514 (186 SE2d 732) (1972); Stepp v. Lance, 233 Ga. 358 (211 SE2d 311) (1974).

The general notice here involved alerted the citizens of Douglas County of the intention to amend the Act creating the Board of Commissioners and thus gave notice of the broad range of possible legislative enactment. Under the principles of decision in the above cases this notice of intention was sufficient to satisfy the constitutional requirement of Code Ann. § 2-1915.

Equal Protection and Related Issues

Several enumerations of error relate to appellant’s argument that the legislature is prohibited by several sections of the Georgia Constitution and the Equal [744]*744Protection Clause of the Fourteenth Amendment to the Constitution of the United States from enacting a recall provision that affects only Douglas County Commissioners and not the commissioners of other counties. The trial court ruled that this Act does not violate Art. XI, Sec. I, Par VI of the Georgia Constitution (Code Ann. § 2-7806), requiring uniformity in county matters, or Art. I, Sec. IV, Par. I of the Constitution of the State of Georgia (Code Ann. § 2-401) which prohibits enactment of a special law where provision has been made by an existing general law.

The Equal Protection Clause of the Fourteenth Amendment prohibits states from enacting laws which deny persons in the same class equal protection of the law. The legislature may define the classes as it chooses so long as the classification is not arbitrary and unreasonable. See McCullers v. Williamson, 221 Ga. 358, 365 (144 SE2d 911) (1965). There is nothing, however, in the Fourteenth Amendment that prohibits a state from creating different kinds of political subdivisions and providing a different process for selecting and removing officials in those subdivisions. See Missouri v. Lewis, 101 U. S. 22 (1879). The states have wide discretion in deciding whether a law should operate statewide or only in certain counties. See Griffin v. School Board of Prince Edward County, 377 U. S. 218, 231 (1963). Thus the General Assembly of Georgia may treat different counties differently by specifyiiig the type of county government each shall have as long as it does not act arbitrarily under the Fourteenth Amendment. We do not believe the present Act is arbitrary or capricious since all the Douglas County Commissioners are subject to the recall procedure of the Act and there is nothing in the Fourteenth Amendment which prohibits this legislative scheme.

Appellant also asserts the present Act violates Art. XI, Sec. I, Par. VI (Code Ann. § 2-7806) of the Georgia Constitution which provides, "[wjhatever tribunal, or officers, may be created by the General Assembly for the transaction of county matters, shall be uniform throughout the State . . . except that the General Assembly may provide for Commissioners of Roads and [745]*745Revenues in any county . . . without respect to uniformity.” In addition, appellant contends the Act violates Art. VI, Sec.

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Smith v. Abercrombie
221 S.E.2d 802 (Supreme Court of Georgia, 1975)

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Bluebook (online)
221 S.E.2d 802, 235 Ga. 741, 1975 Ga. LEXIS 980, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-abercrombie-ga-1975.