Plantation Pipe Line Co. v. City of Bremen

• Decision Date: 23 November 1970
• Docket Number: No. 25873,25873
• Citation: 178 S.E.2d 868,227 Ga. 1
• Parties: PLANTATION PIPE LINE COMPANY et al. v. CITY OF BREMEN.
• Court: Georgia Supreme Court

Page 868

178 S.E.2d 868

227 Ga. 1

PLANTATION PIPE LINE COMPANY et al. v. CITY OF BREMEN.

No. 25873.

Supreme Court of Georgia.

Nov. 23, 1970.

Syllabus by the Court

1. The General Assembly is authorized to delegate its legislative power of municipal annexation to municipalities under the 1954 amendment to the Constitution of 1945. Art. XV, Sec. I, Par. I; Code Ann. § 2-8301.

2. The Act of 1962 (Ga.L.1962, p. 119; Code Ann. § 69-902) providing for municipal annexation being a mere delegation of legislative power need not contain standards.

3. Municipal annexations under the Act of 1966 (Ga.L.1966, pp. 409, 410; Code Ann. § 69-904) which cross the boundaries of school districts are prohibited.

4. The Act of 1962 (Ga.L.1962, p. 119; Code Ann. § 69-902) does not authorize municipal annexations of territory not contiguous thereto.

5. The first annexation ordinance of August 23, 1968 is not invalid.

6. The appellants have no standing to attack the constitutionality of the Act of 1966 (Ga.L.1966, pp. 409, 410; Code Ann. § 69-904).

Howe & Murphy, Harold L. Murphy, Tallapoosa, Tisinger & Tisinger, David H. Tisinger, Carrollton, for appellants.

Tom Murphy, Bremen, Arthur K. Nolton, Atty. Gen., Harold N. Hill, Jr., Executive Asst. Atty. Gen., Wade V. Mallard, Jr., Robert J. Castellani, Asst. Attys. Gen., Atlanta, for appellee.

Heard & Leverett, L. Clifford Adams, Elberton, amicus curiae.

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 appellant 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.

1. 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 be 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 does 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 Am.Jur. 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. 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 S.E. 864. However, in 1953 in Phillips v. City of Atlanta, 210 Ga. 72, 77 S.E.2d 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: 'What is said above would seem to demonstrate conclusively that, as the Constitution stood before it contained art. 15, 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. 15, 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 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. 15, 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 S.E.2d 156.

Immediately following the Phillips decision, the General Assembly...