Opinion
22833.
ARGUED FEBRUARY 8, 1965.
DECIDED APRIL 8, 1965. REHEARING DENIED APRIL 20, 1965.
Injunction. Cobb Superior Court. Before Judge Manning.
Hicks Howard, G. Robert Howard, for plaintiffs in error.
Crowe, Shipley Martin, Arthur L. Crowe, Jr., Ben F. Smith, R. M. Reed, contra.
L. Clifford Adams, Jr., for party at interest not party to record.
1. The charter of a municipal corporation is not terminated by a failure to exercise the charter powers, where there is no provision for termination in the charter.
2. An unconstitutional exemption from taxation of a particular class of property in a municipal charter does not vacate or repeal the valid charter powers.
3. Allegations of a petition asserting that the defendant is bound by a former judgment, which allegations would be insufficient as a matter of law in a plea of res judicata, are likewise insufficient to allege a cause of action.
4. The act of 1963, p. 251 ( Code Ann. § 69-1402) has no application to an amendment to a charter of a municipality in existence prior to the passage of the 1963 act.
ARGUED FEBRUARY 8, 1965 — DECIDED APRIL 8, 1965 — REHEARING DENIED APRIL 20, 1965.
Clifford Frasure and W. J. Brackett filed their petition against the Ordinary of Cobb County and alleged: The petitioners own real property and reside in the area of the alleged city limits of the City of Elizabeth. Under the provisions of an act of 1964 (Ga. L. 1964, Ex. Sess., pp. 2179-2201) the defendant is required to hold an election on the first Tuesday in October, 1964, for approval or rejection of the provisions of the act, which act attempts to amend, revise, and supersede an act incorporating the Town of Elizabeth in Cobb County, approved October 8, 1885 (Ga. L. 1885, p. 377). The 1885 act required the election of a mayor and five councilmen within six months or as soon as practicable. There has never been an election or any action of any type to effectuate the act of 1885. Citizens in the area embraced therein have never paid any taxes, no city officials have been elected or appointed, and no city services of any nature have been performed. The charter of the Town of Elizabeth has been abandoned, no attempt having been made to activate it for 79 years. It is impossible to determine the location of the engine house of the American Marble Cutting Company, which constitutes the basis for determining the boundaries of the Town of Elizabeth, and it is therefore impossible to prepare an accurate or valid voters' list. The act of 1964 establishes the same criteria for the boundary of the City of Elizabeth. The act of 1885 is null, void, and of no legal effect because of laches. It is unconstitutional and void in that it violates the Constitution, Art. I, Sec. I, Par. II ( Code Ann. § 2-102), which provides that "protection to person and property is the paramount duty of government, and shall be impartial and complete," for the reason that "said act, while granting the town of Elizabeth the power to levy a tax on all property within its boundary, exempts therefrom all land, houses, stock or other property used for agricultural purposes." Such discrimination violates the quoted provisions of the Constitution of Georgia and the equal protection clause of the Fourteenth Amendment of the Federal Constitution (which is quoted) because of the discriminatory tax exemption. The act of 1885 is null and void for the reasons stated, and the act of 1964 is also null and void since "it is merely an attempt to revive that which is dead." In 1963 certain persons alleging themselves to be residents of the area embraced in the corporate limits of the Town of Elizabeth filed a petition requesting the defendant to call an election under the act of 1885. The housing Authority of the City of Marietta filed pleadings in Cobb Superior Court asking that the defendant be enjoined from holding this election, and the election under the act of 1885 was enjoined and restrained. This order being unreversed, it is res judicata as to the validity of the act of 1885. The act of 1964 is a local act and in conflict with Ga. L. 1963, pp. 251-252, which provides in Section 2: "No local act granting a municipal charter shall be enacted wherein any part of the proposed corporate boundary shall be less than three (3) miles distant from the corporate boundary of any existing municipality." Code Ann. § 69-1402. All of the lands embraced in the alleged city limits of the City of Elizabeth are within three miles of the City of Marietta. The petitioners are residents and taxpayers of the area described in the acts of 1885 and 1964, and they will be subject to all of the provisions of the act of 1964 and will become residents of the City of Elizabeth unless equity intervenes and enjoins the election provided for in the act of 1964. The petitioners have no adequate remedy at law.
The prayers were for process; for rule nisi requiring the ordinary to show cause why he should not be temporarily and permanently enjoined from conducting the election called for October 6, 1964, and from performing acts as provided by the act of 1964; that the court decree the acts of 1885 and 1964 null, void, and of no effect; and for other relief. Rule nisi was issued on September 29, 1964, requiring the ordinary to show cause as prayed, and until further order of the court he was enjoined from holding the election.
John T. Brown and seven other named persons, alleging themselves to be citizens of the area described in the acts of 1885 and 1964, prayed that they be made parties defendant and be allowed to appear, plead, and defend as though they had been named parties defendant. On October 5, 1964, the petition of Brown and others to be made parties defendant was allowed by the trial judge, and it was ordered that they be allowed to plead and defend in as complete manner as though they had been named parties. On the same date Brown and others filed their general and special demurrers to the petition, and an answer. On the same date (October 5, 1964) the Marietta Housing Authority filed a petition praying that it be allowed to intervene as a party plaintiff, and this intervention was allowed. On the same date (October 5, 1964) the City of Marietta, alleging that the proposed City of Elizabeth is within three miles of the corporate limits of the City of Marietta, moved that it be made a party plaintiff. This motion was allowed. On October 5, 1964, the judge of the superior court modified his restraining order of September 29, 1964, by providing that the ordinary "may hold the election" pertaining to ratification of the charter of the City of Elizabeth on October 6, and that the ordinary be enjoined only from certifying the results of the election. On October 24, 1964, the petition of Mrs. J. C. Patterson, Sr., to intervene as a party plaintiff was allowed. On November 5, 1964, the judge overruled the demurrers of the defendants John T. Brown and others, and the exception is to this judgment.
1. Where the charter of a municipal corporation contains no provision for the expiration or forfeiture of its charter, it does not expire, nor is it forfeited, by nonuser of its powers. City of Atlanta v. Gate City Gas Light Co., 71 Ga. 106; Wall v. Mayor c. of Milledgeville, 197 Ga. 165 ( 28 S.E.2d 131). The rule in Georgia is the general rule in the jurisdictions 3rd Ed., 421, § 8.05; 62 CJS 230, Municipal Corporations, § 103; 37 Am. Jur. 639, Municipal Corporations, § 22. The charter of the Town of Elizabeth (Ga. L. 1885, p. 377) contains no provision for expiration or forfeiture, and the charter of 1885 was not null or void because of laches at the time of the amending act in 1964 (Ga. L. 1964, Ex. Sess., pp. 2179-2201).
2. It is contended that the act of 1885 incorporating the Town of Elizabeth is unconstitutional and void because of the discrimination in taxation, in that the charter of the Town of Elizabeth exempts from municipal taxation all real and personal property used for agricultural purposes. Under Art. VII, Sec. II, Par. I (Code of 1993, § 2-5001) of the Constitution of 1877, and Art. VII, Sec. I, Par. III ( Code Ann. § 2-5403) of the Constitution of 1945, all taxation must be uniform, except that under the Constitution of 1945 the General Assembly may classify property for taxation. In Smith v. Mayor c. of Americus, 89 Ga. 810 ( 15 S.E. 752), decided in 1892, it was held that a charter provision of the City of Americus attempting to exempt real property used for farming purposes from taxation, under the Constitution of 1877, was null and void. The charter provision in the act of 1885 purporting to exempt property used for agricultural purposes in the Town of Elizabeth was unconstitutional and void. The invalidity of a charter provision purporting to exempt property used for agricultural purposes from taxation does not vacate, annul, or repeal the valid charter provisions of the city or municipality. Hancock v. State, 114 Ga. 439 (2) ( 40 S.E. 317); Bass v. Lawrence, 124 Ga. 75 (3) ( 52 S.E. 296); Edalgo v. Southern R. Co., 129 Ga. 258 ( 58 S.E. 846); Lee v. Tucker, 130 Ga. 43 ( 60 S.E. 164); Sister Felicitas v. Hartridge, 148 Ga. 832 ( 98 S.E. 538).
3. It is alleged that on September 16, 1963, an order was signed by the judge of the superior court which restrained and enjoined the defendant ordinary from holding an election under the act of 1885 incorporating the Town of Elizabeth, and that such order being unreversed, is res judicata as to the validity of the act of 1885. These allegations are wholly insufficient as a plea of res judicata. The judgment in the former case is not alleged or shown, and it is not shown that the validity of the act of 1885 was expressly or necessarily involved and ruled upon by the trial judge. Fenwick Shipping Co. v. Clarke Brothers, 133 Ga. 43, 48 (4) ( 65 S.E. 140). In Scarborough v. Edgar, 176 Ga. 574 (3) ( 168 S.E. 592), this court ruled: "A plea of res adjudicata must set forth fully all the proceedings in the alleged former adjudication which is pleaded in bar of the action." Both the Fenwick and Scarborough cases are full-bench decisions and are controlling as to the deficiency of the allegations of res judicata in the present case.
4. The petitioners allege that the act of 1964 (Ga. L. 1964, Ex. Sess., pp. 2179-2201) is in conflict with Ga. L. 1963, p. 251, which provides: "No local act granting a municipal charter shall be enacted wherein any part of the proposed corporate boundary shall be less than three (3) miles distant from the corporate boundary of any municipality." Code Ann. § 69-1402. It is averred that a local act in conflict with a general act can not stand as a valid separate act.
In division one of this opinion we have ruled that the original charter of the Town of Elizabeth (Ga. L. 1885, p. 377) was not forfeited or terminated by a nonuser of its charter powers. The 1964 act (Ga. L. 1964, Ex. Sess., pp. 2179-2200) recites in part in the caption: "An Act to amend, consolidate, revise and supersede an Act incorporating the town of Elizabeth, in the county of Cobb, State of Georgia, approved October 8, 1885 (Ga. L. 1885, p. 337); to create a new charter for said city; to change the name from the Town of Elizabeth to the City of Elizabeth; to define the territorial limits of said city; etc." Where a municipality was created prior to the 1963 act (Ga. L. 1963, p. 251) the restrictions of the 1963 act do not purport to apply to an amendatory act. To construe the 1963 act as applicable to acts amending the corporate powers of municipalities in existence prior to the 1963 act would violate the plain and unambiguous language of the 1963 act, and the Constitutional prohibition (Constitution, Art. I, Sec. III, Par. II; Code Ann. § 2-302) against enactment of retroactive laws.
Allegations of a pleading in contradiction of legislative enactments can not form the basis of a cause of action, since courts of this State are bound to take judicial notice of "all laws and resolutions of the General Assembly." Code § 38-112. Thus, whether or not the engine house of Frank G. North Chemical Company is the same point as the engine house of the former American Marble Cutting Company is not germane to the location of the corporate limits of the City of Elizabeth, since it is not alleged that the engine house of the Frank G. North Chemical Company, named as the point for determining the charter limits under the 1964 act, is not presently in existence.
Under the allegations of fact in the present case, members of this court might not agree that the act incorporating the City of Elizabeth is wise legislation. However, it has always been the rule that the wisdom of legislation is a matter for the General Assembly and not this court. Flint River Steamboat Co. v. Foster, 5 Ga. 194 (2) ( 48 AD 248); Thompson v. Eastern Air Lines, Inc., 200 Ga. 216, 224 ( 39 S.E.2d 225); Franklin v. Harper, 205 Ga. 779, 792 ( 55 S.E.2d 221).
The trial court erred in overruling the general demurrers of the defendants.
Judgment reversed. All the Justices concur.