Wilson v. Mayor of Dalton

Lumpkin, J. (After stating the foregoing facts.) 1. Under the decision in Richardson v. Mayor and Council of Macon, 132 Ga. 122 (63 S. E. 790), and the authorities there cited, it is clear that the act of August 17, 1908, amending the several acts incorporating the City of Dalton, was not violative of the provision of article 3, section 7, paragraph 8, of the constitution, which prohibits the passage of any law containing matter different from what is expressed in the title thereof. 2. In addition to the contention that the act of 1908 was unconstitutional, it was also contended that the office of tax-receiver was created by the mayor and council, and was abolished by them, and that they had the right to do this. While the language of the fourth section of the act under consideration was that the city “shall be and is authorized to create the office of city tax-receiver,” etc., it may well be .questioned whether,' in view of all the provisions of the act on that subject, the duty of creating the office was not imposed upon the city. Vason v. City Council of Augusta, 38 Ga. 542. If, however, the municipal authorities were not required to create the office of city1" tax-receiver, but merely given authority to do so, nevertheless, if they did create it, the charter declared, “Said city tax-receiver to be elected for a term of two years in the manner prescribed by this amendment;” and in providing for the holding of elections it included the tax-receiver as one of the officers to be elected by a vote of the qualified voters of the city. The municipal authorities created the office; the charter fixed the term of the officer and the mode of his election and prescribed his duties. Those matters were not left for the determination of the mayor and council. It has been declared that if the office is one which is created by municipal ordinance, and there is [246] nothing in the charter or general statute law to prevent them from so doing, the municipal authorities creating the office may also abolish it. City Council of Augusta v. Sweeney, 44 Ga. 463 (9 Am. Rep. 172). But where the charter declares how an officer shall be elected and for what term, and prescribes his duties, the municipal authorities have no power to abolish the office during that term. The powers of a mayor and council are entirely different from those of the legislature. The latter exercises the general legislative power of the State. The former have such powers as the legislature may confer upon them, and are subject to such restrictions as .the legislature may declare, within the limits of the constitution. In the present case, after the office had been created and the officer elected and qualified, the mayor and council had no authority to abolish the office during the term fixed by the charter. Shaw v. Mayor and Council of Macon, 21 Ga. 280; Raley v. Mayor and Commissioners of Warrenlon, 120 Ga. 365 (47 S. E. 972). Some other questions were raised in the petition, and some were argued in the brief of counsel for defendant in error; hut the presiding judge dismissed the petition on the two grounds with which we have dealt, and we do not deem it proper to pass upon other matters. Judgment reversed. All the Justices concur.