Tuten v. City of Brunswick
| Decision Date | 16 July 1992 |
| Docket Number | No. S92A0696,S92A0696 |
| Citation | 262 Ga. 399,418 S.E.2d 367 |
| Parties | TUTEN et al. v. CITY OF BRUNSWICK et al. |
| Court | Georgia Supreme Court |
George M. Rountree, Rountree & Souther, Brunswick, for Tuten et al.
Eugene Highsmith, Wallace E. Harrell, Gilbert, Whittle, Harrell, Scarlett & Skelton, Lisa S. Godbey, Gilbert, Harrell, Gilbert, Sumerford & Martin, Brunswick, for City of Brunswick et al.
Thomas C. Shelton, Kilpatrick & Cody, Atlanta, amicus appellant.
A. Stephens Clay, Thomas C. Harney, Robert B. Friedman, Kilpatrick & Cody, Atlanta.
This appeal concerns the power of a city to alienate a park that has been dedicated to public use.
Factual background.
1. Residents of the City of Brunswick sought to enjoin the city commission from completing a proposed conveyance to a church of city park land. They contended that:
Blythe Place or Blythe Square was named, designated and dedicated as a public park or square when the original Plan of the City of Brunswick was drawn up and laid out in the year 1771 and has continuously existed as a public park or public square since the existence of the City of Brunswick, Georgia.
The trial court found no material factual issue that would require an evidentiary hearing and disposed of the case on issues of law. The trial court's order states in part:
OCGA Section 36-37-6 establishes a comprehensive method for disposal of municipal property. It requires publication of notice of intent to sell, and a bidding process, for property worth more than $500.00. However, OCGA Section 36-37-6(c) provides an exception to those procedures, when a city engages in "trading or swapping" property when that is "deemed to be in the best interest of the municipal corporation."
The Court has considered Plaintiffs' thorough analysis of the historical background surrounding the creation of public parks in the City of Brunswick, and their summary of past legislative efforts to protect them. However, the Court finds that under current law the city parks are not exempt from the provisions of OCGA Section 36-37-6(c).
Statutory considerations.
2. (a) The act of 1976 (Ga.L.1976, p. 351; enacted as Code Ann. § 69-318; now codified as OCGA § 36-37-6(a)) provided in part:
Except as otherwise provided in this Code section, the governing authority of any municipal corporation disposing of any real or personal property of such municipal corporation shall make all such sales to the highest responsible bidder, either by sealed bids or by auction after due notice has been given.
(b) The act of 1976, above, (now codified as OCGA § 36-37-6(b) and (c)) also provided in part:
Notwithstanding the foregoing provisions of this section [concerning bidding procedure, notice, advertisement requirements], the governing authority of any municipal corporation is hereby authorized to sell any lots from a municipal cemetery or personal property belonging to the municipal corporation with an estimated value of $500 or less without regard to the foregoing provisions of this section. Such sales may be made in the open market without advertisement and without the acceptance of bids. The estimation of the value of any personal property to be sold shall be in the sole and absolute discretion of the governing authorities of the municipality or their designated agent. Provided, however, nothing herein shall prevent a municipality from trading or swapping property with another property owner, if said trade or swap is deemed to be in the best interest of the municipality. 1
3. (a) With the appearance of the Official Code of Georgia Annotated, Code Ann. § 69-318 became OCGA § 36-37-6. It was divided into six subparagraphs (the latter three being unrelated to this appeal). The first subparagraph carried forward existing restrictions upon the disposition of city property (the 1976 act). The second subparagraph continued the 1976 act's authorization of a municipal corporation to sell lots from a municipal cemetery, and to sell personal property belonging to the municipal corporation having an estimated value of $500 or less. 2 The third subparagraph repeated the final sentence of the 1976 act (Division 2(b), above), altered slightly so as to read:
Nothing in this Code section shall prevent a municipal corporation from trading or swapping property with another property owner if such trade or swap is deemed to be in the best interest of the municipal corporation.
(b) It is on this third subparagraph, now OCGA § 36-37-6(c), that the city and church place their principal reliance.
The issue.
4. (a) The problem of statutory construction in this case thus becomes an analysis, not so much of words, but of punctuation and new subparagraph structures; and of their effect upon existing statutes as rearranged; and upon the common law. 3
(b) The following precepts are instructive:
(i) OCGA § 1-1-2 provides in part:
Except as otherwise specifically provided by particular provisions of this Code, the enactment of this Code by the General Assembly is not intended to alter the substantive law in existence on the effective date of this Code. [Emphasis supplied.] 4
(ii) OCGA § 1-3-1(a) provides:
In all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy.... 5
5. (a) OCGA § 36-34-3 delineates the general powers of municipal corporations. These include the power to accept by gift, to operate, to regulate, to open and close public parks "in the interest of the health and general welfare." The specified general powers do not include the power to alienate lands dedicated to public usage. 6
(b) What we now have with OCGA is simply a rearrangement of an existing statute into the first three subparagraphs of OCGA § 36-37-6. There is no statement of legislative intent. There is no new law to supplant "the old law;" there is no specified "evil" in the prior statutory scheme; and there is no declaration of "remedy". (OCGA § 1-3-1, at Div. 4(b)(ii), above.)
(c) In sum, there is no indication that the General Assembly intended by this minor rearrangement to expand the powers of municipalities; or to relieve them of the bidding requirements of the 1976 act (Div. 2(a), above); or to alter settled principles of the common law restricting the alienation of dedicated public lands. Vide note 3, above.
6. Further, to read OCGA § 36-37-6(c) as a plenary grant of the power of "trading" and "swapping" city property generates logical possibilities that only can be described as bizarre. For example (and bearing in mind the statutory limitations upon the sale of city property), a city is prohibited from selling $600 worth of scrap iron unless it complies with the bidding requirements of OCGA § 36-37-6(a). Yet, it could "swap" or "trade" the city hall itself for a goat! 7 The sole requisite would be that such an exchange be "deemed in the best interest" of the city.
7. (a)(i) "The construction [of statutes] must square with common sense and sound reasoning." Blalock v. State, 166 Ga. 465, 470, 143 S.E. 426 (1928).
(ii) In the construction of a statute a court may decline to give a legislative act such construction as will attribute to the General Assembly an intention to pass an act which is not reasonable, or as will defeat the purpose of the proposed legislation. [Bd. of Trustees v. Christy, 246 Ga. 553, 554, 272 S.E.2d 288 (1980).]
(b)(i) The rearrangement into a discrete subparagraph (OCGA § 36-37-6(c)) of the final sentence of the act of 1976 (Div. 2(b), above) (OCGA § 36-7-6(c)) is not so substantive or reliable an expression of legislative intent as to vitiate the bidding requirements of OCGA § 36-37-6(a); nor to generate a radical inflation of OCGA § 36-37-6(b) (), to authorize a city to "swap" or "trade" all of its public property. Nor does it serve to abolish longstanding common law precepts.
(ii) The power to swap and trade cemetery lots and personal property of limited value remains just that--and nothing more.
Holding.
Under our interpretation of the effect of OCGA § 36-37-6(c), we hold that the proposed land exchange between the city and the church is ultra vires. The city of Brunswick lacks the power to dispose of Blythe Square by virtue of that provision, and the proposed exchange should have been enjoined. 8
Judgment reversed.
All the Justices concur, except BELL, P.J. and FLETCHER, J., who dissent.
The Commission of the City of Brunswick adopted a resolution in June 1991 to transfer part of a city park to a church in exchange for church property. The trial court denied a motion by two city residents seeking to enjoin the conveyance. Because OCGA § 36-37-6(c) grants municipalities the power to trade property when it is in the municipality's best interest, I would affirm.
1. The code provision governing the disposition of municipal property requires any municipality disposing of real property to sell to the highest responsible bidder by sealed bids or auction, "[e]xcept as otherwise provided in this Code section." OCGA § 36-37-6(a). The remaining subsections (b) through (h) provide exceptions to the general rule set out in subsection (a). Subsection (b) provides exceptions for personal property valued at less than five hundred dollars and municipal cemetery lots regardless of value. Subsection (c) deals with the exchange of property:
Nothing in this Code section shall prevent a municipal corporation from trading or swapping property with another property owner if such trade or swap is deemed to be in the best interest of the municipal corporation.
OCGA § 36-37-6(c) (1987). 1
Construing the statutory language, subsection (c) enables municipalities to trade or swap property with another property owner without receiving...
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