Appellant Teddy Lee was elected to a four-year term as mayor of Villa Rica in November 1991, meeting all the qualifications for holding the office when he was elected and when he took the oath of office. On December 31, 1993, local legislation passed by the General Assembly (Ga. L. 1993, p. 4592) took effect, resulting in the de-annexation 1
of certain portions of Villa Rica, including the area in which Lee resided. 2
After de-annexation, Lee no longer met a qualification of office required by the Villa Rica city charter -- that he reside in the city and be registered and qualified to vote in city elections during his period of service. 3
As a result, the City Council passed a resolution calling for Leeds removal from office. Contending he was entitled to serve the remainder of the term to which he had been elected, Lee filed a petition for declaratory judgment and sought an injunction against the effort to remove him from office. In an amendment, Lee sought a declaration that the de-annexation statute was unconstitutional. After the trial court granted a 30-day temporary restraining order, the City of Villa Rica and the members of the city council filed a counterclaim seeking a declaration that Lee was no longer qualified to hold the office and that the office of mayor was vacant. The trial court ruled that the local legislation was not unconstitutional, and ordered Lee to vacate the position of mayor. 4
Lee has taken this appeal from that order.
1. Lee contends the de-annexation legislation violated the provisions of the state and federal constitutions which prohibit the enactment of bills of attainder. U. S. Const., Art. I, Sec. IX; 1983 Ga. Const., Art. I, Sec. I, Par. X.
The federal and state constitutional prohibitions against bills of attainder forbid
"legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial. [Cit.]"
Fulton v. Baker, 261 Ga. 710
, 712 (410 SE2d 735
) (1991). 5
An individual or group may be made the target of an attainder by being singled out by name or by a description of past conduct. Selective Svc. System v. Minnesota Pub. Interest Research, 468 U. S. 841, 847 (104 SC 3348, 82 LE2d 632) (1984). Appellant contends that, in light of the charter requirement that the mayor reside within the city limits, the de-annexation statute placing his home beyond the city boundaries singles him out for legislative infliction of the punishment of loss of his elected position. However, the de-annexation legislation is not a bill of attainder because it neither singles out Lee nor punishes him as an officeholder. Many residents of Villa Rica, one of whom was the mayor, were affected by the de-annexation of that portion of the city that was annexed in 1988. See Nixon v. Administrator of General Svcs., 433 U. S. 425, 468 (97 SC 2777, 53 LE2d 867) (1977) (Congress can deprive social security benefits to Communist deportees as a group, but "it would be a bill of attainder to deprive a single, named individual of the same benefit"). Compare Fulton v. Baker, supra (where only one person met the criteria of the legislation condemned as a bill of attainder).
Even if the de-annexation legislation singled out Lee as one of the two officeholders who lost their qualification to hold office because they were no longer city residents, the legislation fails to punish him. In deciding whether a statute inflicts punishment, the court must consider
whether the challenged statute falls within the historical meaning of legislative punishment; (2) whether the statute, "viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes"; and (3) whether the legislative record "evinces a [legislative] intent to punish."
Selective Svc. System v. Minnesota Pub. Interest Research Group, supra at 852. Furthermore, the burden is on the person claiming to be the target of legislatively-imposed punishment to establish that the legislative act constitutes punishment and is not a legitimate regulation of conduct. Nixon v. Administrator of Gen. Svcs., supra, 433 U. S. at 475.
The de-annexation legislation does not punish Lee as an officeholder under this test of punishment. Nothing on the face of the act suggests punitive intent on the part of the legislature, and Lee has not established that the legislation was not a legitimate regulation of conduct. In light of Lee's failure to carry his burden of proof, we conclude that the de-annexation legislation does not inflict punishment upon Lee.
2. Appellant next contends that the enactment of the de-annexation statute violated OCGA 1-3-11
, which provides:
No office to which a person has been elected shall be abolished nor the term of the office shortened or lengthened by local or special Act during the term for which such person was elected unless the same shall be approved by the people of the jurisdiction affected in a referendum on the question.
"To abolish an office means to abrogate, annihilate, destroy, extinguish, or put an end to it. [Cits.]" Webb v. Echols, 211 Ga. 724
, 726 (88 SE2d 625
) (1955). To shorten or lengthen the term of the office means to modify the statutorily-set, definite extent of time an elective office may be held. The contested legislation at bar neither extinguished the office of mayor of Villa Rica nor modified the term of the office; rather, it, in conjunction with the city charter, only created a vacancy in the office of mayor. See Smith v. Abercrombie, 235 Ga. 741
, 748 (221 SE2d 802
) (1975). Compare Manning v. Upshaw, 204 Ga. 324 (3) (49 SE2d 874) (1948)
. We conclude that OCGA 1-3-11
and its requirement of a local referendum is not applicable because the de-annexation act neither abolished the office of mayor of Villa Rica nor shortened or lengthened the term of office.
3. Lastly, appellant argues that he was removed from office by a procedure other than one listed in the city charter for the removal of elective officers. Ga. L. 1975, p. 4575, 5.31. At the commencement of the hearing on Lee's petition for declaratory judgment and the defendants' counterclaim for declaratory judgment, counsel for Lee informed the court that the parties were "prepared to submit this case to your honor and let it rest in the breast of the court on the stipulated facts and on the briefs At no time before the trial court did Lee contest the procedure that he had initiated. Lee's failure to raise an objection to the procedure before the trial court and his acquiescence in the procedure used, preclude him from asserting on appeal that improper procedure was followed.
4. In light of our opinion set forth above, appellees' motion for supersedeas or an order clarifying the scope of supersedeas under OCGA 5-6-46
(a) is dismissed as moot.
Michael J. Bowers, Attorney General, Tisinger, Tisinger, Vance & Greer, C. David Mecklin, Jr., Barnhart, O'Quinn & Williams, Michael A. O'Quinn, for appellees.