Spence v. Rowell

Candler, Justice.

(After stating the foregoing facts.) Code § 69-101 declares: “No local law seeking repeal of a municipal charter of a city of less than 50,000 inhabitants, or an amendment to any municipal charter of a city of less than 50,000 inhabitants which amendment materially changes the form of government of a municipality or seeks to substitute officers for municipal control other than those in control under the existing charter, shall become effective until such repeal or amendment shall be voted upon by the qualified voters of the municipality to be affected as hereinafter provided.” And Code § 69-102 provides that, where by local law the charter of a city having less than 50,000 inhabitants is repealed, or where by local law the form of government of a city having less than 50,000 inhabitants is materially amended or seeks to substitute officers for municipal control other than those in control under the existing charter, it shall be the duty of the city authorities to call an election to be *148held within 30 days from the call to determine whether a majority of the qualified voters of such municipality will ratify or reject such local law; but that the provisions of this section shall not be effective and the city authorities shall not be required to call such election, “unless a petition signed by more than one-fifth of the qualified voters of such municipality shall be filed with the officers of such municipality within 60 days from the passage of said bill requesting -that such election be called.” These two sections were codified from an act which the legislature passed in 1925 as amended by an act which it passed in 1927 (Ga. L. 1925, p. 136; Ga. L. 1927, p. 244). The original act applied only to cities of less than 200,000 inhabitants. In Souther v. Butler, 195 Ga. 566 (24 S. E. 2d 668), it was held that a local act which materially changed the City of Dalton’s form of government did not become effective since the city had less than 50,000 inhabitants, and the city’s governing body did not call an election for the purpose of giving the qualified voters thereof an opportunity to ratify or reject the local act until five years after its passage, and where no petition signed by more than one-fifth of the city’s qualified voters asking for such an election was filed within 60 days from its passage by the General Assembly. See also Hoover v. Brown, 186 Ga. 519 (198 S. E. 231).

We will now deal with the act of 1939, for, if that act legally repealed the act of 1910 which incorporated the Town of Lilbum, then for no reason alleged or shown is the act of 1955 which incorporated the City of Lilburn ineffective. Do the provisions of Code §§ 69-101 and 69-102 apply to the repeal of a charter granted to a town having a population of less than 50,000, as they do to a city having such a population? We do not think so. The legislative power of this State is by the Constitution vested in a General Assembly, which consists of a Senate and House of Representatives. Code (Ann.) § 2-1301. A municipal corporation is a political division of the State, and is a public corporation, having for its object the administration of a portion of the power of government delegated to it for such purpose. Code § 22-103. Penick v. Foster, 129 Ga. 217 (58 S. E. 773, 12 L. R. A. (NS) 1159, 12 Ann. Cas. 346); Maner v. Dykes, 183 Ga. 118, 121 (187 S. E. 699). It is a creature of the General *149Assembly, and its charter powers may be enlarged, lessened, or completely withdrawn at the will of its creator (Hogg v. City of Rome, 189 Ga. 298, 6 S. E. 2d 48; Schneider v. City of Folkston, 207 Ga. 434, 62 S. E. 2d 177); and this court, in construing and applying any statute enacted by that body which has the effect of limiting its constitutional power to do so, will adhere to the plain language of such an act. See Boston v. Cummins, 16 Ga. 102 (60 Am. D. 717). Under article 6, section 2, paragraph 4 of the Constitution of 1945, the Supreme Court has jurisdiction over writs of error respecting enumerated subjects from the superior courts and the city courts of Atlanta and Savannah and such other like courts as have been or may be established in other cities. Code (Ann.) § 2-3704. The Constitution of 1877 contained the same provision. In Wight & Weslosky Co. v. Wolff & Happ, 112 Ga. 169 (37 S. E. 395), it was unanimously held that the Supreme Court did not have jurisdiction over a writ of error from the “City court” of the Town of Camilla, since Camilla was not a city. In that case Mr. Justice Cobb and Mr. Justice Fish filed a concurring opinion, in which they said: (at p. 175) “The General Assembly has the right to incorporate Camilla as a city, but until this is done it remains the Town of Camilla. . . As long as Camilla remains an incorporated town, a city court within the meaning of the Constitution cannot be created within that town, for the simple reason that the town of Camilla is not a city.” Again it was held by a full bench in Atkinson v. State, 112 Ga. 402 (2) (37 S. E. 746), that the Supreme Court had no jurisdiction to entertain a bill of exceptions from a so-called city court established in the Town of Eastman. There it was said: “Since the municipality of Eastman was . . . incorporated as a town, and has never been incorporated as a city, the act of November 28, 1899, entitled an act ‘to establish the city court of Eastman, in the city of Eastman’ (Acts of 1899, p. 356), is unconstitutional in so far as it attempts to confer upon the Supreme Court jurisdiction over writs of error from the court thereby established. The mere fact that in the title and in the body of that act Eastman is incidentally referred to as ‘the City of Eastman’ did not convert the town into a city.” In Savannah F. & W. Ry. Co. v. Jordan, 113 Ga. 687, 688 (39 *150S. E. 511), it was held that “where a place has been distinctly incorporated as a town, the character of the municipal corporation thus created continues unchanged until there has been a legislative declaration which not only in effect says that the place shall no longer be designated as a town but expressly declares that it shall be classed as one of the cities of the State.” And in Mayor &c. of Smithville v. Dispensary Commrs. of Lee County, 125 Ga. 559, 560 (54 S. E. 539), it was said: “Of course the words ‘city’ and ‘town’ are not synonymous, and, as used both by courts and legislatures their meanings have often been distinguished.” The four cases last referred to were decided by this court prior to 1925, and it will be conclusively presumed that the legislature knew when it passed the acts from which §§ 69-101 and 69-102 were codified that this court had said that the words “city” and “town” are not synonymous. And it is well settled in this jurisdiction that all statutes are presumed to be enacted by the legislature with full knowledge of the existing condition of the law and with reference to it; that they are to be construed in connection and in harmony with the existing law; and that their meaning and effect will be detérmined in connection, not only with the common law and the Constitution, but also with reference-to other statutes and the decisions of the courts. Botts v. Southeastern Pipe-Line Co., 190 Ga. 689, 700 (10 S. E. 2d 375); Jacobs v. State, 200 Ga. 400, 444 (37 S. E. 2d 187). The act of 1925, as amended by the act of 1927, is, by plain language, applicable only to cities of less than 50,000 inhabitants, and the judiciary has no right to extend its provisions to towns of less than 50,000 inhabitants, and whether the legislature should have so extended it is not a question about which the judiciary is concerned. New Amsterdam Casualty Co. v. McFarley, 191 Ga. 334, 337 (12 S. E. 2d 355). We, therefore, hold that Code §§ 69-101 and 69-102 apply only to cities of less than 50,000 inhabitants and not to incorporated towns having such a population; and from this.ruling it necessarily follows that the act of 1939 legally repealed the act of 1910, which incorporated the Town of Lilburn. Hence, in 1955, there was no reason why the legislature could not legally incorporate the City of Lilburn, and the incorporating act which it then passed became effective on its approval *151by the Governor. The judgment excepted to is therefore not erroneous.

Judgment affirmed.

All the Justices concur, except Duckworth, C. J., Head and Hawkins, JJ., who dissent.