Plantation Pipe Line Co. v. City of Bremen , 227 Ga. 1 ( 1970 )

Undercofler, Justice.

The appellants Plantation Pipe Line Company and the Board of Education of Haralson County, the petitioners, together with the Board of Education of Carroll County, as intervenors, complain of the annexation of four tracts of land by the City of Bremen, Georgia. The annexations were accomplished by ordinances under the authority of Ga. L. 1962, p. 119 (Code Ann. § 69-902) and Ga. L. 1966, pp. 409, 410 (Code Ann. § 69-904). The Act of 1962 permits a city to annex contiguous territory when, among other things, 100% of the property owners of the affected area petition for such annexation in writing. It is known generally as the "100% method” of annexation. The Act of 1966 permits a city to annex contiguous territory when, among other things, 60% of the electors and the owners of 60% of the land area in the affected area petition for such annexation in writing. It is known generally as the "60% method” of annexation.

The City of Bremen is an independent school district and prior to the annexation ordinances was located entirely in Haralson County. The first tract annexed was contiguous to the city and was accomplished under the "100% method” on August 23, 1968. The second tract annexed was contiguous to the first and was accomplished under the "60% method” on October 7, 1968. Both of these tracts were located in Haralson County and the second one extended the City of Bremen to the Carroll County boundary. The third tract annexed was contiguous to the second and was accomplished under the "100% method” on November 1, 1968. It extended the City of Bremen into Carroll County. The fourth tract annexed was contiguous to the third and was accomplished under the "60% method” on December 31, 1968. It extended the City of Bremen further into Carroll County.

The statutes and annexation ordinances are attacked on various grounds which will be dealt with in the opinion.

The appellants also sought an injunction to prevent the collection of the 1969 taxes in the said annexed areas by the City of Bremen.

The trial court, after hearing evidence, sustained the appellee’s motion to dismiss the original petition and the intervention. This appeal is from that judgment.

-The first question presented is whether the legislative power of the General Assembly to extend city boundaries may be constitutionally delegated to the municipalities. The appellants contend that the power to extend city limits and annex territory must he exercised by the General Assembly and cannot be delegated.

The issue turns upon the meaning of the so-called Municipal Home Rule amendment to the Georgia Constitution of 1945. The amendment was ratified in 1954 and provides: "The General Assembly is authorized to provide by law for the self-government of municipalities and to that end is hereby expressly given the authority to delegate its powers so that matters pertaining to municipalities upon which, prior to the ratification of this amendment, it was necessary for the General Assembly to act, may be dealt with without the necessity of action by the General Assembly. Any powers granted as provided herein shall be exercised subject only to statutes of general application pertaining to municipalities.” Art. XV, Sec. I, Par. I (Code Ann. § 2-8301). "While under well-recognized doctrines of constitutional government the legislative body of a state cannot delegate its power to make laws, it has always been an equally well-recognized doctrine that the creation of municipal corporations exercising delegated powers of local self-government dqes not trench upon that rule. It is well settled that it is within the power of the legislature to delegate to a municipal corporation for municipal purposes, to be exercised within the municipal limits, the three most essential branches of the legislative power of a sovereign state, namely, the police power, the power of taxation, and the power of eminent domain, as well as powers with respect to various other matters.” 37 AmJur 721, § 111. "Municipal corporations form an exception to the rule which forbids the legislature to delegate any of its powers to subordinate subdivisions.” McMahon v. Mayor &c. of Savannah, 66 Ga. 217, 224 (42 AR 65). Therefore, it is seen that there is not an absolute prohibition against the delegation of legislative powers to a municipal corporation even in the absence of constitutional authorization. The Georgia Constitution of 1877 contained no specific authorization permitting the delegation of legislative powers to municipal corporations but on the contrary vested all legislative power in the General Assembly. Const. 1877, Art. III, Sec. I, Par. I, (Code § 2-1201). Nevertheless, municipal corporations were established and vested with certain legislative powers. However, the question of the constitutionality of the delegation of the legislative power to annex additional territory to municipalities had never been decided by this court prior to the Constitution of 1945.

In 1919 a full bench of six justices of this court divided evenly on the question of whether annexation of additional municipal territory was a legislative power which could not be delegated. Bennett v. City of Baxley, 149 Ga. 275 (99 SE 864). However, in 1953 in Phillips v. City of Atlanta, 210 Ga. 72, 75 (77 SE2d 723), it was said: "We wish at this time to put at rest any doubts resulting from that case [Bennett v. City of Baxley, supra]. Obviously, incorporating additional territory in a municipality was legislative in character and in fact, and the Constitution clearly prohibited the exercise of legislative powers by other than the General Assembly.” This statement was predicated upon the Constitution of 1877 which, on this subject, contained only a provision vesting all legislative power in the General Assembly. At the time the opinion in the Phillips case was rendered, the Constitution of 1877 had been replaced by the Constitution of 1945. It contained the same provision vesting all legislative power in the General Assembly but it also contained the following home-rule provision: "The General Assembly shall provide for uniform systems of county and municipal government, and provide for optional plans of both, and shall provide for systems of initiative, referendum and recall in some of the plans for both county and municipal governments. The General Assembly shall provide a method by which a county or municipality may select one of the optional uniform systems or plans or reject any or all proposed systems or plans.” Const. 1945, Art. XV, Sec. I, Par. I (Code Ann. §2-8301). Interpreting this 1945 constitutional provision this court said in the Phillips case, supra, pp. 75, 77: "What is said above would seem to demonstrate conclusively that, as the Constitution stood before it contained Art. XV, Sec. I, Par. I (Code Ann. § 2-8301), all legislative power reposed in the General Assembly, and this power could not be constitutionally delegated by the General Assembly. But the legislation here drawn in question (Ga. L. 1951, p. 116, as amended by Ga. L. 1952, p. 46) is expressly claimed to have constitutional basis in Art. XV, Sec. I, Par. I. It plainly undertakes to delegate to cities the power to legislate extensions of corporate limits by the procedure of initiative and referendum. The article of the Constitution relied upon unquestionably authorizes the General Assembly to delegate legislative powers to municipalities by embodying initiative, referendum, and recall in some of the systems of government which that article directs the legislature to provide. . . From what has been said it follows that that the only procedure by which power to legislate — and this includes extending corporate limits of municipalities — can be delegated by the General Assembly under Art. XV, Sec. I, Par. I, is by incorporating such delegated power in systems of government enacted by the General Assembly. Systems of government and municipal charters are synonymous.”

Therefore, the Phillips case, supra, held that the 1945 constitutional Municipal Home Rule provision authorized the General Assembly to delegate its legislative power of annexation to municipalities but only in the manner specified in the Constitution. The statute under attack in that case was held unconstitutional because it did not provide for the specified systems of government and, therefore, was contrary to the dictates of the 1945 Constitution. For a similar holding see DuPre v. City of Marietta, 213 Ga. 403 (99 SE2d 156).

Immediately following the Phillips decision, the General Assembly proposed, and the people ratified, the constitutional amendment of 1954 which is now under review (Art. XV, Sec. I, Par. I; Code Ann. § 2-8301). This amendment replaced the 1945 constitutional provision.

The 1954 constitutional amendment is clear. It authorizes the General Assembly to provide for the self-government of municipalities and expressly grants to it "the authority to delegate its powers so that matters pertaining to municipalities upon which, prior to the ratification of this amendment, it was necessary for the General Assembly to act, may be dealt with without the necessity of action by the General Assembly. Any powers granted as provided herein shall be exercised subject only to statutes of general application pertaining to municipalities.”

Although it is argued that "self-government” as contained in the 1954 constitutional amendment does not encompass the power of annexation, we do not think this position is tenable. One of the most important considerations in the administration and development of a city is its orderly growth, both internally and in territorial expansion. Whether to add additional land area calls for an evaluation of the benefits and burdens of such enlargement and the resulting impact upon the financial, political and environmental structure of the city and the area to be annexed. These matters are largely of local concern and can be more appropriately determined locally. A local decision on local affairs is "self-government.” As defined, it is the "control of one’s or its own affairs.” Webster’s Third New International Dictionary.

Therefore, we conclude that the use of the phrase "self-government” in the 1954 amendment is not an expression of limitation confining the delegation of legislative powers to strictly intramural affairs. On the contrary, in view of the local nature of municipal annexation, in view of the Phillips case, supra, followed immediately by the 1954 constitutional amendment, and under the context of the amendment itself which expressly authorizes the General Assembly "to delegate its powers . . . pertaining to municipalities,” we think it is evident that annexation comes within the purview of the constitutional amendment and the purview of "self-government” as expressed therein and we so hold.

We note that the 1954 constitutional amendment does not grant legislative powers to municipalities directly and independently of the General Assembly. It merely authorizes the General Assembly to delegate its legislative powers to municipalities. It is not in derogation of legislative power nor does it conflict with it. The legislative power of the General Assembly is in no way impaired by the 1954 constitutional amendment and municipalities can receive and retain only such legislative power of the General Assembly as that body determines from time to time they should exercise. This is quite different from the constitutional provisions of some States which grant legislative powers directly to municipalities apart and independently of the State legislature. In these States the courts tend to place a more restrictive interpretation upon such constitutional amendments containing phrases such as "self-government” under the reasoning, as we conclude, that the people did not by such constitutional provision intend to entirely negate the powers of the State legislature over municipalities. See Schultz v. City of Upper Arlington, 88 Ohio App. 281 (97 NE2d 218); City of Cincinnati v. Rosi, 92 Ohio App. 8 (109 NE2d 290); Spence v. Watson, 182 Ore. 233 (186 P2d 785). Such is not the case in Georgia.

Disagreement may exist as to the advisability of the General Assembly delegating such legislative power to the municipalities, but, in our opinion, it unquestionably has this prerogative under the Constitution as amended in 1954.

The appellants contend that Section 1 of the annexation statute of 1962 (Ga. L. 1962, p. 119; Code Ann. § 69-902) is unconstitutional and void as applied by the City of Bremen in its annexation ordinances in that it fails to provide adequate standards and principles for determining whether or not the ordinances passed by the city pursuant to said statute are in the best interest of the residents and property owners of the area proposed for annexation and of the citizens of the municipality.

As we held in Division 1 of this opinion, the 1954 constitutional amendment authorized the ■ delegation of the legislative power of annexation to municipalities. The very purpose of the 1962 Act in delegating a limited power of annexation to the municipalities is to permit the municipalities to make a self-determination in this regard. The Act being a mere delegation of legislative power need not contain any standards. When the municipality exercises the delegated power, it is exercising the legislative power of the General Assembly. It is limited only by the terms of the delegation itself and by the rule that its exercise must be lawful and reasonable and not in violation of any constitutional inhibition. 37 AmJur 731, § 117.

Also, there is no merit in the contention that the statute is unconstitutionally applied because the property is not of a character suitable for annexation to the municipality. Cash v. Town of Douglasville, 94 Ga. 557 (20 SE 438); Murray v. City of Waycross, 171 Ga. 484 (4) (156 SE 38).

It is contended by the Haralson and Carroll County Boards of Education that they are political subdivisions of this State and that the second and fourth annexation ordinances of the City of Bremen of October 7, 1968 and December 31, 1968, are illegal and void because they do not comply with the provisions of Ga. L. 1966, pp. 409, 410 (Code Ann. § 69-904).

Section 1 of the 1966 Act provides in part: "Authority is hereby granted to the governing bodies of the several incorporated municipalities of this State to annex to the existing corporate limits thereof unincorporated areas which are contiguous to the existing corporate limits at the time of such annexation, upon the written and signed application of not less than sixty percent (60%) of the electors resident in the area included in any such application and of the owners of not less than sixty percent (60%) of the land area, by acreage, included in such application.” Code Ann. § 69-904.

Section 5 of the 1966 Act provides in part: "Provided there shall be no annexation across the boundary lines of any political subdivision under the provisions of this Act.” Code Ann. § 69-908.

It is well established in this State that a school district is a political subdivision thereof. Ty Ty Consolidated School District v. Colquitt Lumber Co., 153 Ga. 426 (112 SE 561); Jennings v. New Bronwood School District, 156 Ga. 15 (2a) (118 SE 560); Seaboard A. L. R. Co. v. Wright, 165 Ga. 367 (140 SE 863); Campbell v. Red Bud Consolidated School District, 186 Ga. 541 (198 SE 225); Towns v. Suttles, 208 Ga. 838, 840 (69 SE2d 742); Cotton States Mut. Ins. Co. v. Keefe, 215 Ga. 830 (113 SE2d 774).

Art. VIII, Sec. V, Par. I of the Constitution of 1945 provides: "Each county, exclusive of any independent school system now in existence in a county, shall compose one school district and shall be confined to the control and management of a county board of education.” Code Ann. §§ 2-6801, 32-901, 32-1101.

The cardinal rule in the construction of legislative enactments is to ascertain the true intention of the General Assembly in the passage of the law. Gazan v. Heery, 183 Ga. 30 (187 SE 371, 106 ALR 498). All statutes are presumed to be enacted by the General Assembly with full knowledge of the existing condition of the law and with reference to it, and are therefore to be construed in connection and in harmony with the existing law, and as a part of a general and uniform system of jurisprudence, and their meaning and effect is to be determined in connection, not only with the common law and the Constitution, but also with reference to other statutes and decisions of the courts. Botts v. Southeastern Pipeline Co., 190 Ga. 689 (10 SE2d 375); Nelson v. Roberts, 217 Ga. 613 (124 SE2d 85); and Buice v. Dixon, 223 Ga. 645 (157 SE2d 481).

We hold therefore that the General Assembly included school districts when it provided in the 1966 Act that "there shall be no annexation across the boundary lines of any political subdivision under the provisions of this law.” The record shows that the City of Bremen, Georgia, contains an independent school system. Therefore, when the second and fourth annexation ordinances of October 7, 1968, and December 31, 1968, were passed, they attempted to annex to the City of Bremen territory of other political subdivisions, the Haralson County School District and the Carroll County School District.

It follows that these ordinances are illegal and void because they violate the provisions of the Act of 1966 prohibiting the annexation of territory across the boundary lines of political subdivisions. See Jones v. City of College Park, 223 Ga. 778 (158 SE2d 384).

The City of Bremen therefore could not levy and collect taxes in the areas annexed by the second and fourth ordinances of October 7, 1968, and December 31, 1968.

Under the express provisions of the Act of 1966, the Boards of Education of Haralson and Carroll Counties do not come within the category of persons barred from attacking the ordinances after 30 days. Ga. L. 1966, pp. 409, 413 (Code Ann. § 69-912).

We have held in the previous division of this opinion that the second ordinance of October 7, 1968, is illegal and void. Therefore, when the third annexation ordinance of November 1, 1968, was passed, the area involved therein was not contiguous to the existing corporate limits of the City of Bremen as provided by the Act of 1962 (Ga. L. 1962, p. 119; Code Ann. § 69-902). For this reason, we hold that the third annexation ordinance of November 1, 1968, is illegal and void and that the City of Bremen had no authority to levy and collect taxes in this area.

The first annexation ordinance of August 23, 1968, under the "100% method” of annexation is not invalid under the attacks made by the appellants.

Since we have held in the previous divisions of this opinion that the ordinances of the City of Bremen annexing territory under the "60% method” are illegal and void, the appellants have no standing to attack the constitutionality of the 1966 Act of the General Assembly providing for such method of annexation. South Ga. Natural Gas Co. v. Ga. Public Service Commn., 214 Ga. 174 (104 SE2d 97); Barrett v. Barrett, 215 Ga. 697 (113 SE2d 118).

For the reasons given in this opinion the trial court erred in sustaining the motion to dismiss the petition and the intervention.

Judgment reversed. All the Justices concur, except Almand, C. J., Nichols, Felton, and Hawes, JJ., who concur in the judgment of reversal. Nichols and Hawes, JJ., dissent from the rulings made in Divisions 1 and 5.