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BALL, Chief of Police, et al. v. PEAVY.
18559.
Injunction. Before Judge Thomas. Ware Superior Court. January 29, 1954.
DUCKWORTH, Chief Justice.
Section 4 of the act providing for and establishing a new charter for the City of Waycross (Ga. L. 1909, pp. 1456, 1461), which extends its jurisdictional limits for police and sanitary purposes for one mile beyond its defined limits, is unconstitutional and void, in that the caption of said act affords no indication that the legislature intended to authorize the city to exercise these extraterritorial powers outside the defined limits of the city, and is violative of the constitutional inhibition against surprise legislation as found in Code (Ann.) 2-1908.
W. M. Peavy (now defendant in error) filed an equitable petition in Ware Superior Court, praying for a restraining order and injunction against the Chief of Police and other city officials of the City of Waycross (the plaintiffs in error), to prevent them from trying him for the sale of fireworks in violation of a municipal ordinance and from interfering with him in his business of selling fireworks, the allegations being, in substance: that he had a proper county license from Ware County to sell fireworks; that his business is outside the corporate limits of Waycross, but within one mile of the corporate limits; that cases have been made against him and he has been summoned to appear before the recorder's court for the alleged violation of an ordinance which prohibits the sale of fireworks in the City of Waycross and within the zone of its police jurisdiction, defined by its charter as extending one mile beyond its corporate limits, said ordinance being in violation of the Constitution of Georgia, in that the caption of the legislative act granting the charter afforded no indication of any purpose on the part of the General Assembly to extend the power of the City of Waycross beyond its corporate limits.
The restraining order was granted and, after an interlocutory hearing, the court granted a temporary injunction. The case proceeded to trial without the intervention of a jury on a written stipulation of facts, and a permanent injunction was granted the decree of the court holding that both section 4 of the act of the General Assembly (Ga. L. 1909, pp. 1456, 1461), setting up the charter of the City of Waycross empowering it to exercise the powers enumerated outside the corporate limits and the ordinance pursuant thereto, are unconstitutional and void. The exception here is to this judgment.
The judgment now under review is one holding that, in so far as section 4 of the charter of the City of Waycross (Ga. L. 1909, pp. 1456, 1461), and an ordinance adopted pursuant thereto, authorize and empower the city to exercise the extra powers enumerated outside the corporate limits of the city, they are unconstitutional and void. The attack thus sustained was upon the ground that such portion of the charter was not referred to in the caption, and hence offended sec. VII, art. III, par. VIII of the Constitution (Code, Ann., 2-1908). The relevant part of section 4 is as follows: "That for the purpose of protecting the peace, good order, morals and health of said city, its corporate limits and its jurisdiction shall extend for one mile beyond its limits as now defined or . . . hereafter extended," and the material portion of the caption is as follows: "An act to provide and establish a new charter for the city of Waycross . . . and to extend and define its corporate limits."
This court had for decision in Blair v. State, 90 Ga. 326 (17 S. E. 96, 35 Am. St. R. 206), the identical constitutional question, although the caption of the Columbus charter was slightly different in its wording from the caption here, the relevant portion being, "An act to create a new charter for the City of Columbus, and to consolidate and declare the rights and powers of said corporation." But the reasons stated in that opinion why the provisions in the body of the act were unconstitutional as not being covered by the caption apply here. While section 4 mentions this additional area as corporate limits for the recited purposes, nevertheless it is obvious that it has to do solely with powers of the municipality. To draw a municipal charter is to define its corporate limits, without which it would be void. Thus the mere additional phrase, "to extend and define its corporate limits," adds nothing to the caption of the Waycross chapter that was not in the Columbus charter. Accordingly, since the title of the act affords no indication of any purpose on the part of the General Assembly to provide the City of Waycross with such extra powers over the neighboring territory within one mile of the city's limits (Blair v. State, 90 Ga. 326, supra), the court did not err in holding it subject to the constitutional attack and in granting the permanent injunction.
Judgment affirmed. All the Justices concur.
Gibson & Maddox, Wilson & Wilson, contra.
Q. L. Garrett, Garrett &. McDonald, for plaintiffs in error.
ARGUED APRIL 13, 1954 -- DECIDED MAY 11, 1954.
Saturday May 23 03:24 EDT


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