Harrell v. Courson, 29835
| Decision Date | 06 May 1975 |
| Docket Number | No. 29835,29835 |
| Citation | 216 S.E.2d 105,234 Ga. 350 |
| Parties | John A. HARRELL et al. v. Ellis COURSON et al. |
| Court | Georgia Supreme Court |
Boatright & Boatright, J. Laddie Boatright, Jackson S. Cooley, Hazlehurst, for appellants.
Arthur C. Farrar, Farrar & Farrar, Douglas, for appellees.
Syllabus Opinion by the Court
This appeal is from an order of the Superior Court of Coffee County, entered on February 20, 1975, dissolving the municipal charter of West Green, Georgia, pursuant to the provisions of Ga.L.1947, p. 1545 (Code Ann. § 69-105). Two questions are before us for decision: (1) Is the statute, under which this municipal charter was surrendered and dissolved, an unauthorized delegation of legislative power to the judiciary? and (2) Does the transcript and record of this proceeding in the trial court authorize the dissolution of the corporate charter? Our review of the case leads us to affirm the judgment of the trial court.
This statute provides for the dissolution of a municipal charter where the municipality has not functioned under the charter for more than 10 years, upon a petition to the superior court by a majority of the registered voters of the municipality. This court has not previously passed upon this statute and the issues presented are of first impression here. A brief review of the events in the trial court is appropriate before considering the specific questions for decision.
The appellees filed their verified petition in the Superior Court of Coffee County on December 23, 1974, alleging they were a majority of the registered voters, as of that date, within the corporate limits of West Green, Georgia, seeking to have the charter dissolved because the municipal corporation had not functioned for more than 10 years. A copy of the corporate charter was attached as an exhibit. The appellants, named as defendants, were the other registered voters in West Green as of that date. The court issued a rule nisi for a show cause hearing on January 16, 1975. The parties, through their respective counsel, entered into a written stipulation which was approved and made the order of the court on January 24, 1975.
The stipulation recites that, '(t)he Town of West Green was chartered by the State Legislature in 1914, and as of this date, it is a nonfunctioning incorporated town by and through its charter.' It provides for a referendum to determine whether a majority of those voting desired to reactivate or to surrender the municipal charter. Under the terms of the stipulation, it was further provided,
The referendum was held in accordance with the stipulation and one hundred qualified voters cast their votes in it. Fifty-four of those voting favored dissolution and the remaining forty-six voters favored retention of the charter. The trial judge ordered another hearing to pass upon the remaining issues. Counsel for appellants, who desired to retain the municipal charter, filed a motion to dismiss the verified petition of the appellees but filed no answer or other pleadings in the case. After a hearing, the trial court overruled the motion to dismiss, granted the prayers of the petition and entered an order dissolving the municipal charter of West Green, Georgia.
We first consider the constitutionality of the statute under which the charter was dissolved by the trial court. Counsel for appellants urges the trial court erred in overruling the motion to dismiss which raised the constitutional issues. The argument is made that the dissolution of municipal charters lies exclusively within the power of the legislature and this power cannot be delegated by it without offending Art. III, § I, Par. I, and § VII, Par. XX of the Constitution (Code Ann. §§ 2-1301 and 1920). It is further argued that the statute also offends the Constitution because there is a delegation of legislative authority to the superior courts in the statute and this is violative of the separation of powers doctrine found in Art. I, § I, Par. 23 of the Constitution (Code Ann. § 2-123).
We recognize the basic principle embodied in the separation of powers doctrine that the legislature cannot delegate legislative power to the courts. This does not mean, however, that the legislature is forbidden from conferring power on the courts to ascertain whether the statutory requirements for dissolution of a municipal charter have been satisfied in particular cases. '(D)elegation to a court of power to ascertain a state of facts under which a statute is applicable' is not an unlawful delegation of legislative power to the judiciary. See McQuillin, Municipal Corporations, Vol. 2, § 4.12, p. 34. ' (T)he legislature may provide for the dissolution of municipal corporations and provide that such dissolution shall take effect when a majority, or other proportion, of the inhabitants accept the application of the statute, and the duty of ascertaining the fact of acceptance of the statute by the required proportion of the inhabitants may be given to the courts.' 56 Am.Jur.2d, 144, Municipal Corporations, § 90.
In Kentucky, it has been held that the courts have no inherent authority to dissolve a municipal charter but can be empowered by statute to dissolve a municipal charter upon the terms prescribed by the legislature. See Jewell v. City of Louisville, Ky., 339 S.W.2d 169 (1960), and particularly Boone County v. Town of Verona, 190 Ky. 430, 227 S.W. 804. For a similar view taken in West Virginia, see Houseman v. Town of Anawalt, 85 W.Va. 60, 100 S.E. 848 (1919).
Apparently, the only inquiry upon the hearing of a petition to dissolve a municipal charter in Alabama is whether the requisite number of qualified voters residing within the corporate limits are in favor of dissolution. When this finding is made by the court, the legislative Act by which the charter becomes dissolved is placed into operation. See Carter v. Town of Muscle Shoals, 242 Ala. 519, 7 So.2d 74 (1942).
In our judgment, the Georgia municipal charter dissolution statute is not subject to the constitutional attacks made on it. The legislature has exercised its power...
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