Barton v. Hardin

• Decision Date: 18 June 1948
• Docket Number: 16238.
• Citation: 48 S.E.2d 882,204 Ga. 108
• Parties: BARTON v. HARDIN et al.
• Court: Georgia Supreme Court

48 S.E.2d 882

204 Ga. 108

BARTON v. HARDIN et al.

No. 16238.

Supreme Court of Georgia

June 18, 1948

Rehearing Denied July 16, 1948.

Nathan Jolles and W. D. Lanier, both of Augusta, for plaintiff in error.

Pierce Bros., Willace B. Pierce and Franklin H. Pierce, all of Augusta for defendants in error.

Syllabus Opinion by the Court.

JENKINS Chief Justice.

1. A county acts under delegated powers, and has only such powers as are conferred by statute. Albany Bottling Co. v Watson, 103 Ga. 503, 30 S.E. 270; Town of Decatur v KeKalb County, 130 Ga. 483, 487, 61 S.E. 23; Bowers v. Hanks, 152 Ga. 659, 111 S.E. 38; McCrory Co. of Georgia v. Board of Commissioners of Fulton County, 177 Ga. 242, 170 S.E. 18.

2. The Board of County Commissioners of Roads and Revenues, as the governing body of Richmond County, Georgia, has no inherent authority to enact zoning ordinances, and is limited in this respect to the specific authority conferred by statute (Ga.La.1937-38, &&. 414-415), which, as amended (Ga.L.1939, pp. 406-407), is as follows: [Said Commissioners] '* * * are hereby authorized to pass zoning and planning laws whereby such county or counties may be zoned or districted for various uses and other or different uses provided therein, and regulating the use for which said zones or districts may be set apart and regulating the plans for development and improvements of real estate therein. Provided, however, no zone or district may be created or established without the consent given by written petition signed by the owners of fifty-one per cent of the real property within the area zoned or districted.'

(a) The authority to zone or district as thus conferred under the above statute is limited to the creation or establishment of such zones or districts in the first instance, and contains no authority either express or implied to thereafter make any exception with respect to the status of the particular district as already zoned, by amending or repealing in whole or in part the zoning ordinance enacted in accordance with the authority delegated by statute. The statutory authority given to a particular class of counties as above quoted differs from that granted various other counties and that given municipalities where the statute specifically authorized the governing body either through the creation of a board of zoning appeals, or other similar body, to make changes and exceptions, or to amend or modify the classifications of areas already zoned; and in so doing a well defined procedure is established to effect such end. See McCord v. Ed. Bond & Condon Co., 175 Ga. 667, 165 S.E. 590, 86 A.L.R. 703; Kitchings v. Hennessee, 73 Ga.App. 848, 38 S.E.2d 431; Morris v. Lunsford, 176 Ga. 49, 167 S.E. 297; Lewenstein v. Brown, 200 Ga. 433, 37 S.E.2d 332.

(b) While recognizing the general principle that there can be no vested right in an existing law which precludes its change by authorized legal authority; and further recognizing the general principle that the establishment of continuing legislative supervision includes the power to amend, subject of course, to certain constitutional inhibitions such as the extinguishment of vested rights acquired under former law, or the impairment of the obligations of contract, or denial of due process (50 Am.Jur. 62, § 45), still, such principles can not have controlling application in the instant case where the power to legislate was delegated to county authorities for the one stated specific purpose of zoning or districting areas within the jurisdiction of such governing body with no continued supervision and control over its action once taken. This is true for the reason that in the legislative grant as made in the instant case the authority to thus legislate contemplates an overall scheme whereby the areas affected by such local legislation where once dealt with might grow and expand in accordance with a fixed and definite plan, affording protection and security to property owners from the vagaries inherent in the expansion of business, industrial, and residential areas. It would, therefore, be unreasonable to assume, in the absence of specific statutory provision, that the legislature intended to grant local governing bodies continued legislative authority by implication to effect just the opposite result by an unlimited and unbridled discretion to change by making exceptions to the work already done by the process of amendment, which...