I dissent from divisions 1, 2, and 3, of the opinion and corresponding headnotes in so far as it is held that the ordinances relied upon to show negligence are not in conflict with the general law dealing with the same subject-matter, my views being as follows:
"Whenever the legislature passes an act and applies its provisions to the entire territory of a county, inconsistent provisions in the charter of an incorporated town located within that county are repealed by necessary implication." Glover v.State, 126 Ga. 594 (3) (55 S.E. 592). The quoted ruling by this court is authority for the statement that, if charter provisions are inconsistent with a subsequent general law, they must yield thereto and are no longer valid. I do not think that it is necessary that the two be inconsistent in order to nullify the charter provisions that are dealt with in the general law. The Constitution, article 1, section 4, paragraph 1, outlaws special laws in those areas where there exists a general law. It is enough to prevent the existence of a valid special law if the subject-matter of that law has been dealt with even though superficially by a general law. City of Atlanta v. Hudgins,193 Ga. 618 (19 S.E.2d 508). That which the State is prohibited from doing it can not authorize its creature, a municipality, to do. 43 C. J. 226. "It is an elementary principle of law, established by the unanimous concurrence of all relevant authorities, that a municipal ordinance must not be inconsistent with or repugnant to the Federal and State Constitutions. So far as their constitutional validity is concerned, they are considered in the same light as laws of the State and must conform to the supreme organic law in every respect." 37 Am. Jur. 767, § 156. In Western Atlantic R. *Page 130 Co., v. Atlanta, 113 Ga. 537 (38 S.E. 996, 54 L.R.A. 294), it was said: "We apprehend that the rule is, when a general law is enacted, making certain provisions in relation to all the towns of this State, and the provisions of the enactment clearly manifest that it was the purpose of the lawmakers to establish a given condition in all of such municipalities, that the terms of such general law will supersede the rights and powers given to any particular municipality by its charter." Here is a direct and unambiguous statement of a rule of law which causes a subsequent general law to supersede the provisions of a municipal charter relating to the subject-matter of that law. If there exists in this State a general law dealing with the subject matter embraced in the municipal charter, the general law must control and the charter provision is nullified.
It remains only to determine if there is a general law in Georgia dealing with the subject-matter of the city ordinances pleaded in this case, that subject being safety measures against injury by fire. By an act approved November 11, 1889 (Ga. L. 1889, p. 168; Code, §§ 54-402 to 54-405, inclusive), it is provided that the owner of every building more than two stories in height, not including the basement, used in the third or higher stories, in whole or in part, as factory or workshop, shall provide "more than one way of egress from each story of said building above the second story, by stairways on the inside or outside of said building, and such stairways shall be, as nearly as may be practicable, at opposite ends of each story and so constructed that, in case of fire, the ground can readily be reached from the third or higher stories. Stairways on the outside of said buildings shall have suitable railed landings at each story above the first, and shall connect with each of said stories by doors or windows opening outwardly, and such doors, windows, and landings shall be kept at all times clear of obstructions. All the main doors of such buildings, both inside and outside, shall open outwardly, and each story shall be amply supplied with means of extinguishing fires." While it will be noted that the quoted portion of the act applies only to buildings used as a factory or workshop, it is further provided in section 3 of the act (Code, § 54-404), that "The municipal authorities of any town or city . . may, by ordinance, provide that the provisions of this act shall apply to all *Page 131 buildings, not used as private residences, three or more stories in height, within their limits." Here is a general law specifically dealing with the subject of authorizing all municipalities, including the City of Atlanta, to make applicable the provisions of the law to all buildings, except private residences, that are more than three stories in height. The very object of the law is the protection of occupants of buildings against the hazard of fire. The methods for affording that protection are specified in the law. That municipalities are permitted, but not required, to adopt ordinances making the provisions of law applicable, does not take it out of the above rule that a general law supersedes a charter provision on the same subject-matter. Mathis v. Jones, 84 Ga. 804 (11 S.E. 1018); Freeney v. Pape, 185 Ga. 1, 6 (194 S.E. 515);Hood v. Burson, 194 Ga. 30, 33 (20 S.E.2d 755). Had the building in question conformed to the requirements of this general law and the fire-extinguishing equipment on each floor been provided, the tragedy might have been avoided. The failure of the municipality to exercise the authority conferred by this law is alone the reason why the building was not thus equipped.
I have not thought it necessary to examine the charter provisions of the City of Atlanta to see if the ordinances in question were authorized by the charter, since any such provisions would by the general law be rendered invalid. If the charter authority for the adoption of the ordinances is invalid, it logically follows that the ordinances themselves are likewise invalid.
From what has been said I think it follows that the ordinances pleaded and relied upon are void, and that as to them the petition alleged no cause of action and should have been stricken on demurrer.
I am authorized by Justices Head and Candler to state that they concur in the foregoing dissent.