An Act for Judicial Incorporation of Georgia Towns

(Ga. Laws 1872, p. 16)

An act to prescribe the manner of incorporating towns and villages in this State.

Section I. The General Assembly of the State of Georgia do enact, That, from and after the passage of this act, the towns and villages heretofore established in this State shall remain subject to the laws now in force applicable thereto, respectively; and the provisions hereinafter set forth shall be deemed applicable only to towns and villages hereafter established, except that the council of a town or village heretofore established may exercise all the powers conferred by this act, although the same may not be conferred by their charter, and as far as this act confers powers on a town or village council not conferred by the charter of any such town or village, the same shall be deemed an amendment to said charter.

Sec. II. Be it further enacted, That whenever the qualified voters of any town or village, not incorporated, consisting of not less than one hundred, wish to be incorporated, a petition shall be filed, by at least twenty of the male inhabitants of such town or village, in the Superior Court of the county in which the inhabitants reside, stating in such petition the proposed boundaries of such town, and the name to be given, if incorporated. The persons intending to make such application shall give notice that they will apply, on some day therein specified, to said Superior Court as aforesaid, and shall also specify in such notice a day on which all the qualified voters residing in the proposed boundaries of such town will meet to vote upon the question of incorporation, which said notice shall, if there be a newspaper printed within such territory, be printed therein once in each week for four successive weeks previous to the time specified for making such application and taking such vote; and if there be no such paper, the notice shall be posted in at least three of the most public places in such territory, for four weeks at least before the time so specified therein.

Sec. III. Be it further enacted, That on the day mentioned in such notice for the taking of the vote mentioned in the second section, the qualified voters, residing within the proposed bounds of such corporation, shall meet at the place named therein, and cast their votes for or against such incorporation. Each voter shall deposit a ballot in a ballot-box, to be provided for that purpose, with the words written or printed thereon, "for incorporation," or "against incorporation," which vote shall be taken under the superintendence of any three voters, within the said boundary, appointed for that purpose by the voters present, and the result of such vote shall be certified and returned by them, under oath, to the Superior Court of the county, in case a majority of all the qualified voters residing within such boundary shall vote in favor of such corporation.

Sec. IV. Be it further enacted, That upon the filing of such certificate, the Superior Court shall, by an order entered of record, direct the Clerk of said court to issue a certificate of the incorporation of such town or village, in form or in substance, as follows: "A certificate under oath of A. B., C. D., and E. F., that a majority of the qualified voters in the following boundaries, to-wit, [here recite the boundaries] having been given in due form of law, in favor of the incorporation of the town or village of -- , in the county of -- , and it appearing to the satisfaction of the court that the provisions of this act have been complied with by the applicants for said incorporation, the said town or village is duly authorized, within the corporate limits aforesaid, to exercise all the corporate powers conferred by the Legislature of the State of Georgia, under the provisions of this act, from and after the date of this certificate. -- , Clerk." And from and after the date of such certificate, the territory embraced within the boundary mentioned in said certificate shall be an incorporated town, or village, by the name specified in the said notice and certificate.

Sec. V. Be it further enacted, That at the term of ordering the certificate mentioned in the preceding section, the court shall appoint three legal voters, residing within the said territory, who shall act as inspectors at the first election to be held in said town or village as hereinafter provided, and in case they shall fail or refuse to act, the said election may be held, certified and returned by any three voters of said town or village, appointed for that purpose by the voters present. The first charter election for officers of such incorporation shall be held within sixty days from the date of the certificate mentioned in the fourth section, of which election, the appointed inspectors of election, or persons acting as such, shall cause at least two weeks' notice to be given of the time and place of holding such election, and the officers to be voted for. Such inspectors, or the persons acting as such, after taking the oath prescribed for superintendents of elections in the Code, shall preside and act as inspectors of election, and all the laws applicable to the election of county officers shall apply to such election, if not inconsistent with the provisions of this act; and such inspectors shall, within ten days after such election, grant a certificate to the persons elected, which shall be recorded among the records of such town or village.

Sec. VI. That the municipal authorities of such town or village shall be a mayor, a recorder and five councilmen, who together shall form a common council; but no person shall be eligible to either of said offices, unless, at the time of his election, he resides within the corporation. The mayor, recorder and councilmen of such town or village, as soon as they have been elected and qualified, as herein provided, and their successors in office, shall be a body politic and corporate, by the name of the town or village of -- , and shall have perpetual succession, and a common seal, and by that name may sue and be sued, plead and be impleaded, purchase and hold real estate necessary to enable them the better to discharge their duties, and needful for the good order, government and welfare of said town or village. All the corporate powers of such corporation shall be exercised by said council, or under their authority, except when otherwise provided. They shall also elect a treasurer and marshal, if they deem necessary, each of whom, when elected, shall enter into a bond, with sufficient sureties, approved of by the mayor, in such penalty as the board shall prescribe, payable to the corporation, conditioned faithfully to collect and pay over, as required by the board, all taxes, fines, forfeitures, and all other incomes of said corporation, and said officers shall continue in office during the pleasure of the council, and perform the duties respectively as herein prescribed, or as may be required by the council.

Sec. VII. Be it further enacted, That the officers first elected in such town or village shall hold their offices until their successors are elected and qualified. The terms of all officers elected, after the first election, shall commence on the first Tuesday in February in each year, and shall be for one year, and until their successors are elected and qualified.

Sec. VIII. Be it further enacted, That after the first election of officers in such corporation, they shall be elected on every first Thursday in January, at such place in the town or village, and under such supervision, rules and regulations, not inconsistent with the laws regulating county elections, as the council may prescribe; and every person elected or appointed to an office in such corporation shall, within twenty days after his election or appointment, and before he shall enter upon the duties of his office, take and subscribe the oath of office, which may be done before any person authorized by law to administer oaths, or before the mayor or recorder of such town or village, which oath, with the certificate of the officer administering the same, shall be filed with the recorder of the town or village.

Sec. IX. Be it further enacted, That the franchises of such corporation shall not be forfeited or discontinued by a failure to hold the election at the proper time; but the officer, or other person authorized by the act, or, on their failure, any Justice of the Peace therein, may at any time, on giving the inhabitants at least five days' notice thereof, by advertisement in some newspapers, or by written or printed notices at three or more public places in the corporation, hold such election; and the persons elected at such election shall have the same powers and authorities as if they had been elected at the regular period.

Sec. X. Be it further enacted, That all persons who have been bona fide residents of such town or village for six months next preceding a charter election held therein, and who are qualified voters under the Constitution and laws of the State, and none others, shall be allowed at any charter election in said town; but no person shall be deemed a resident of any such town or village by reason of being a student of any school or college therein, or of being stationed therein for any temporary purpose.

Sec. XI. Be it further enacted, That when a vacancy shall occur from any cause in the office of mayor, recorder, or in the council, the vacancy shall be filled by appointment by the council, from among the citizens of the town or village, eligible under this act. All contested elections shall be heard and decided by the council.

Sec. XII. Be it further enacted, That the council shall be presided over at its meetings by the mayor, or, in his absence, by one of the councilmen, elected by a majority of the council present, and a majority of the council shall be necessary to form a [Illegible Text] for the transaction of business. The council shall cause to be kept, in a well bound book, an accurate record of all its proceedings, by-laws, acts, orders and resolutions, which shall be fully indexed and open to the inspection of any one who is required to pay taxes to such town or village. At such meeting of the council, the proceedings of the last meeting shall be read, and corrected, if erroneous, and signed by the presiding officer for the time being. Upon the call of any member, the yeas and nays on any question shall be taken and recorded on the journal. The mayor, in case of a tie, shall have the casting vote.

Sec. XIII. Be it further enacted, That the council of such town or village shall have power therein to lay off, vacate, close, open, alter, curb, pave and keep in good order and repair roads, streets, alleys, sidewalks, crosswalks, drains and gutters, for the use of the public, or of any of the citizens thereof, and to improve and light the same, and have them kept free from obstruction on or over them; to regulate the width of sidewalks on the streets, and to order the sidewalks, footways, crosswalks, drains and gutters to be curbed and paved, and kept in good order, free and clean, by the owners or occupants thereof, or of the real property next adjacent thereto; to establish and regulate markets; to prescribe the times of holding the same; to prevent injury or annoyance to the public or individuals from anything dangerous, offensive or unwholesome; to prevent hogs, cattle, horses, sheep and other animals and fowls of all kinds from going at large in such town or village; to protect places of divine worship in and about the premises where held; to abate, or cause to be abated, anything which, in the opinion of a majority of the whole council, shall be a nuisance; to regulate the keeping of gunpowder and other combustibles; to provide, in or near the town or village, places for the burial of the dead, and to regulate interments therein; to provide for the regular building of houses or other structures, and for the making of division fences by the owners of adjacent premises, and the drainage of lots by proper drains and ditches; to make regulations for guarding against danger or damage by fire; to protect the property and person of the citizens of such town or village, and to preserve peace and good order therein, and, for this purpose, to appoint, when necessary, a police force to assist the marshal in the discharge of his duties; to prescribe the powers and define the duties of the officers appointed by the council, fix their term of service and compensation, require and take from them bonds, when deemed necessary, payable to such town on its corporate name, with such sureties and in such penalty as the council may see fit, conditioned for the faithful discharge of their duties; to erect, or authorize, or prohibit the erection of gas-works or water-works in the town; to prevent injury to, or pollution of the same, or to the water or healthfulness of the town; to regulate and provide for the weighing of hay, coal and other articles sold or for sale in the town; and to provide a revenue for the town, and appropriate the same to its expenses; to provide for the annual assessment of taxable property therein, and to adopt rules for the regulation and government of its own body; to carry into effect these enumerated powers and all others conferred upon such town or village, or its council, by this act, or by any future act of the Legislature of the State, the council shall have power to make and pass all needful orders, by-laws, ordinances, resolutions, rules and regulations, not contrary to the Constitution and laws of this State, and to prescribe, impose and enact reasonable fines, penalties and imprisonments in the county jail, or the place of imprisonment in said corporation, if there be one, for a term not exceeding thirty days, for a violation thereof.

Sec. XIV. That the council shall cause to be annually made up, and entered upon its journal, an accurate estimate of all sums which are or may be lawfully chargeable on such town or village, and which ought to be paid within one year, and it shall order a levy of so much as may, in its opinion, be necessary to pay the same; the levy so ordered shall be upon all dogs in the said town or village, and upon all the real and personal estate therein, subject to State and county tax: Provided, That the tax so levied shall not exceed one dollar on every hundred dollars of value thereof.

Sec. XV. Be it further enacted, That every male resident of said town or village, not under sixteen nor over fifty years of age, shall, if required by the council thereof, work not exceeding fifteen days, by himself or an acceptable substitute, on the roads, streets and alleys of said town or village, under the direction of the superintendent of roads, streets and alleys, or may be released from such work upon the payment to the superintendent or council of such amount as may be fixed by the council; the money so paid to be used in the improvement of said roads, streets and alleys; and if said work and money so paid in is not sufficient to put and keep the roads, streets, alleys, sidewalks, crosswalks, drains and gutters of such town or village in good repair, the council thereof shall levy a tax on all the subjects of taxation therein, sufficient for that purpose, and to pay all other expenses incident thereto.

Sec. XVI. Be it further enacted, That whenever anything for which State license is required is to be done within such town or village, the council may require a town or village license therefor, and may impose a tax thereon for the use of the town or village, and may also require a bond with sureties, conditioned as prescribed in the sixth section of the act, payable to such town or village in such penalty as it may think proper, and may revoke such license at any time if the condition of said bond be broken.

Sec. XVII. Be it further enacted, That it shall be the duty of the marshal to collect the town or village taxes, fines, levies and assessments, and in case the same are not paid within one month after they are placed in his hands for collection, the council shall issue execution therefor, and the marshal may levy and sell therefor, in like manner and under the same regulation as the officers of the State are now authorized to levy and sell under other executions.

Sec. XVIII. There shall be a lien on real estate within such town or village for the town or village taxes assessed thereon, and for all other fines and penalties assessed or imposed upon the owners thereof by the authorities of such town or village, from the time the same are so assessed or imposed, which shall have a priority over all other liens, except the lien due the State and county, and may be enforced in the same manner as now prescribed by law for the enforcement of the lien for county taxes, or in such other manner as the council may by ordinance prescribe.

Sec. XIX. Be it further enacted, That the mayor shall be the chief executive officer of the town or village; he shall take care that the orders, by-laws, ordinances, acts and resolutions of the council are faithfully executed; he shall be ex officio Justice of the Peace within the town or village; shall, within the same, possess and exercise all the powers and duties vested by law as a Justice of the Peace, except that he shall have no jurisdiction as such in criminal cases. He shall have control of the police of the town or village, and may appoint special police officers whenever he deems it necessary, and it shall be his duty especially to see that the peace and good order of the town or village are preserved, and that persons and property therein are protected, and to this end he may cause the arrest and detention of all riotous and disorderly persons in the town or village before issuing his warrant therefor. He shall have power to issue executions for all fines, penalties and costs imposed by him, or he may require the immediate payment thereof, and in default of such payment, he may commit the party in default to the jail of the county in which such town or village is situated, or other place of imprisonment in such corporation, if there be one, until the fine, or penalty, or costs shall be paid, but the term of imprisonment in such case shall not exceed thirty days. In the absence from the town or village, or sickness of the mayor, or during any vacancy in the office of mayor, any one of the councilmen, selected by the majority, shall perform his duties and be invested with all his powers.

Sec. XX. That the mayor, recorder and marshal of the town or village shall each receive such compensation for their services as may be fixed by the council, which shall not be increased or diminished during their term of office.

Sec. XXI. That the expenses of maintaining any person committed to the county jail, or other place of imprisonment, by the mayor, shall be paid by the town or village, and all costs incurred in the incorporation of any town or village shall be paid by the same.

Sec. XXII. Be it further enacted, That the question of extending the limits of such corporation shall be submitted to the people of the district to be included, and if two-thirds of such people vote for extension, the same may be made.

Sec. XXIII. That no person holding office under any municipal corporation shall, during the time for which he was elected or appointed, be capable of contracting with such corporation for the performance of any work which is to be paid for out of the treasury, nor shall any person be capable of holding or having any interest in such contract, either by himself or by another, directly or indirectly.

Sec. XXIV. Be it further enacted, That no city, town or village shall create any debt, except the ordinary expenses of said city, town or village, unless by a vote of a majority of the citizens of said city, town or village, at an election to be held specially for that purpose.

Approved August 26, 1872.

Note: Before the passage of this act, the powers hereby conferred upon the Superior Courts could only be exercised by the General Assembly. This act was repealed by an act of March 20, 1939 (Ga. Laws 1939, p. 329).

© Carl Vinson Institute of Government, The University of Georgia

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