Building Authority of Fulton County v. State of Ga., s. 40801

• Decision Date: 06 September 1984
• Docket Number: Nos. 40801,40802,s. 40801
• Citation: 253 Ga. 242,321 S.E.2d 97
• Parties: BUILDING AUTHORITY OF FULTON COUNTY et al. v. STATE of GEORGIA. JOHNSON v. STATE of GEORGIA et al.
• Court: Georgia Supreme Court

Page 97

321 S.E.2d 97

253 Ga. 242

BUILDING AUTHORITY OF FULTON COUNTY et al. v. STATE of GEORGIA.

JOHNSON v. STATE of GEORGIA et al.

Nos. 40801, 40802.

Supreme Court of Georgia.

Sept. 6, 1984.

Jonathan F. Lowe, Ben F. Johnson III, Michael R. Pinkerton, Alston & Bird, Atlanta, John T. Ferguson, Ferguson & Clarke, Atlanta, for Building Authority of Fulton County et al. and for State of Ga. in No. 40802.

Daniel J. O'Connor, Jr., Ruth West Garrett, King & Spalding, Atlanta, for State of Ga. in No. 40801 and for Charlene Upshaw Johnson, formerly Wood.

Lewis R. Slaton, Dist. Atty., Alston & Bird, Jonathan W. Lowe, Ben F. Johnson III, Michael R. Pinkerton, Ferguson & Clarke, John T. Ferguson, Atlanta, for State of Ga. in No. 40801.

HILL, Chief Justice.

On April 26, 1983, the Fulton County Building Authority (hereinafter the "Authority") adopted a resolution authorizing issuance of Retardation Center bonds in the principal amount of $2.1 million to finance the acquisition and construction of mental retardation training centers. The Retardation Center resolution contemplates conveyance from the county to the Authority of the land upon which the Retardation Center project would be situated; issuance of the Retardation Center bonds by the Authority and construction of the facilities with the proceeds of such bonds; and lease of the facilities from the Authority to the county. The lease agreement between the Authority and the county provides for payment of rent by the county to the Authority in the same amounts and at the same times as certain amounts are required to be paid by the Authority as debt service on the Retardation Center bonds.

On May 11, 1983, the Authority adopted a resolution authorizing the issuance of Government Center bonds to finance the cost of feasibility and financial studies, legal and accounting services, urban and architectural design services, and other studies, services and reports incidental thereto, and of preparing plans for an office building facility all for the benefit of the county (such studies, services, reports and preparation of plans to be referred to hereafter, collectively, as the "Governmental Center Undertaking"). The office building facility that is the subject of the Governmental Center Undertaking is described in the Government Center resolution as a "facility to accommodate the space needs of various departments and divisions of Fulton County government," including office space and related facilities (hereafter, the "Government Center Project"). It is contemplated that the Government Center Project will require a building or buildings of approximately 435,000 square feet at a cost of approximately $50 million.

The Government Center resolution authorizes the execution and delivery of a contract under which the Authority agrees to commence and complete the Government Center Undertaking (not the facility) for the county. The county, in consideration therefor, agrees to make contract payments in the same amount and at the same times as the debt service payments are due on the Government Center bonds.

Both the Government Center bonds and the Retardation Center bonds were the subject of validation proceedings brought pursuant to OCGA § 36-82-60 et seq. Charlene Upshaw Johnson intervened and raised several objections to validation. The trial court consolidated the proceedings, overruled some of the intervenor's objections, sustained some of those objections, and therefore declined to validate the bonds. The Authority appeals from those portions of the trial court's order sustaining the intervenor's objections; the intervenor cross-appeals as to each objection which was overruled. We address the issues in the order in which they were raised by the intervenor and decided by the trial court.

The case is complicated by the fact that the laws in issue were enacted in 1980 and 1982 under the Constitution of 1976, and the judgment of the trial court was entered in December, 1983, after the 1983 Constitution became effective on July 1 of that year. The constitutionality of a law is to be determined by the constitution in effect on the date the law became effective and by the constitution now in effect. ¹

One constitutional provision, Art. IX, Sec. III, Par. I(a) of the Constitution of 1983, being substantially identical for purposes of this case to Art. IX, Sec. VI, Par. I of the Constitution of 1976, is so fundamental to the authority system of financing, see 3 EGL, Authority Financing, § 2 (1975), and so frequently cited herein as to warrant special consideration. In the 1983 Constitution, it reads as follows: "The state, or any institution, department, or other agency thereof, and any county, municipality, school district, or other political subdivision of the state may contract for any period not exceeding 50 years with each other or with any other public agency, public corporation, or public authority for joint services, for the provision of services, or for the joint or separate use of facilities or equipment; but such contracts must deal with activities, services, or facilities which the contracting parties are authorized by law to undertake or provide." Art. IX, Sec. III, Par. I(a), Const.1983. The foregoing provision will be referred to herein as "the intergovernmental contracts provision."

1. The first argument made by the intervenor was that the County Building Authority Act, Ga.L.1980, p. 4488, as amended, Ga.L.1982, p. 5031, being applicable to all counties having a population of 550,000 or more according to the 1970 or any future U.S. census (and thereby being applicable only to Fulton County at the present time) was a special law and not a general law and therefore violated our constitutional prohibition against special laws.

At the time the 1980 act was passed the Constitution of 1976 was in effect. That Constitution provided that: "Laws of a general nature shall have uniform operation throughout the State, and no special law shall be enacted in any case for which provision has been made by an existing general law." Art. I, Sec. II, Par., VII. Open population acts applicable only to Fulton County and similar to the one in issue here have been upheld as general laws having uniform operation throughout the state. See Commissioners of Fulton County v. Davis, 213 Ga. 792(3), 102 S.E.2d 180 (1958). Section 2 of the act specifying the members of the Authority does not render it invalid under Stewart v. Anderson, 140 Ga. 31, 78 S.E. 457 (1913), or City of Atlanta v. Gower, 216 Ga. 368, 116 S.E.2d 738 (1960). The General Assembly was authorized to find that the large population of a county is reasonably related to its financial needs. Compare Dougherty County v. Bush, 227 Ga. 137, 179 S.E.2d 343 (1971). Thus the act was not unconstitutional under the 1976 Constitution.

A similar constitutional prohibition is found in our current Constitution, the Constitution of 1983, at Art. III, Sec. VI, Par. IV: "(a) Laws of a general nature shall have uniform operation throughout this state and no local or special law shall be enacted in any case for which provision has been made by an existing general law.... (b) No population bill, as the General Assembly shall define by general law, shall be passed...." We have found the County Building Authority Act to be a general law. Regarding paragraph (b), OCGA § 28-1-15(c)(3) provides that the term "population bill" does not include: "A bill classifying political subdivisions having more than a specified population." Thus the act is not unconstitutional under the existing Constitution.

2. The intervenor's second contention is that the act is "fatally tainted by reason of the voters' failure to ratify a proposed constitutional amendment in the November, 1982 general election." See Ga.L.1982, p. 2613; Amendment No. 38 at the 1982 election, see Ga.L.1983, pp. 2084-2085. The proposed amendment was a local constitutional amendment authorizing and ratifying the creation by the General Assembly of a Fulton County Building Authority, and giving it certain powers. Had it passed, it would have been germane to certain issues before the court relating to the powers of the Authority (see Division 4). Since it did not pass, those questions must be, and are herein, decided by reference to adopted law. The fact that it did not pass does not "taint" the act at issue.

3. The third issue raised by the intervenor is whether the Authority can issue bonds for these projects. Relying on Beazley v. DeKalb County, 210 Ga. 41, 77 S.E.2d 740 (1953), and Tippins v. Cobb County Parking Auth., 213 Ga. 685, 100 S.E.2d 893 (1957), intervenor contends it cannot under either the Constitution of 1976, Art. IX, Sec. VII, Par. I, or that of 1983, Art. IX, Sec. VI, Par. I. Those cases stand for the principle that, under the Constitution of 1945, counties can only issue bonds to finance projects included in the Revenue Certificate Act of 1937, OCGA § 36-82-60 et seq., and a county authority is likewise limited since it cannot have more power than its principal, the county. The pertinent provision in the 1976 Constitution was identical to that in the 1945 Constitution; both limited issuance of bonds to projects authorized by the Revenue Certificate Act of 1937. But notwithstanding that the Constitution of 1976 was in effect at the time that the 1980 act was passed, we deal here not with the validity of the 1980 act but with the projects presently in issue, and we find it unnecessary to decide the validity of these projects under the 1976 Constitution. Assuming for the purposes of this division that the 1980 act is otherwise constitutional, the fact that these projects were not authorized would not render the act itself unconstitutional; it would merely render the projects ultra vires were they to be commenced while the Constitution of 1976 was in effect.

The Constitution of 1983 was ratified by the voters on November 2, 1982, to take effect on July 1, 1983....