1. The act approved February 20, 1945 (Ga. L. 1945, p. 148), providing for a change in county lines when the boundary line of more than one county lies within the corporate limits of any town or city having more than 1200 and not over 1400 inhabitants, is a special law for which provision has been made under an existing general law (Code, §§ 23-301 et seq.), and is in violation of article 1, section 4, paragraph 1, of the Constitution of 1877 (Code, § 2-401).
2. Where, under the act stated above, all the provisions for an election and the subsequent requirements to transfer the territory in question to Early County, in accordance with the result of the election, were acquiesced in by Calhoun County, and where Early County exercised dominion over the territory in question and the inhabitants thereof for approximately two and a half years, during which time no dominion was sought to be exercised by Calhoun County, yet such acquiescence will not estop Calhoun County from asserting the unconstitutionality of the act.
3. In construing the constitutionality of an act the doctrine of argumentum ab inconvenienti will not be applied where the act is clearly and plainly in violation of the Constitution.
No. 16595. APRIL 11, 1949. On June 23, 1948, Calhoun County filed a suit against Early County and certain other persons, the effect of which was to determine a portion of the boundary line between the two counties. The City of Arlington had been incorporated and comprised territory from both counties. It had so operated for many *Page 170 years. Under the act approved February 20, 1945 (Ga. L. 1945, p. 148), providing for a change of county lines where such lines lie within the corporate limits of a town or city within specified population limitations, and providing for an election for the inhabitants to determine as to a change of the county lines so that the town or city would lie wholly within one county, the city had proceeded thereunder, declared its entire territory to be in Early County, and for a period of approximately two and a half years the inhabitants had subjected themselves to the dominion and jurisdiction of Early County.
It was alleged that the act of 1945 (p. 148), under which the purported change in county lines had been effected, was unconstitutional for stated reasons; and there was a prayer, among others, that the Board of Commissioners of Early County be enjoined from exercising any jurisdiction over that part of the City of Arlington purportedly annexed to Early County by virtue of said act of 1945.
Early County denied the material portions of the petition, and further pleaded: that Calhoun County had acquiesced in all the provisions of the act of 1945 (p. 148), defining the manner of holding the election, receiving notice of the result thereof, and pursuant thereto had adopted a resolution declaring that as a result of the election the line between the counties would thereafter exist so that all that portion of the incorporated limits of the City of Arlington which formerly lay within the limits of Calhoun County would now lie within the limits of Early County, which said resolution was duly published as provided for in said act; that since January 1, 1946, all of the usual, normal, and customary affairs, personal, business, and political, have been carried on by people in the area in question in the belief that it was legally a part of Early County, and that Early County has in all respects treated the area as a part of its territory, and its inhabitants as citizens thereof; that Calhoun County could have contested the validity of the act when the election was called, or taken steps to prevent the result from being put in force; and that by acquiescence and conduct they are now estopped from questioning the legality of the act.
An intervention by numerous citizens who owned property or resided in the area in question was filed in behalf of Early County. *Page 171
The case was submitted to the trial judge under the admissions in the pleadings and an agreed statement of facts in substance as follows: The City of Arlington under the census of 1940 had a population of 1337, and was the only municipality in the State situated in more than one county with a population of between 1200 and 1400. After the passage of the act of 1945 the mayor and councilmen of the city called an election, gave notice, and submitted to the voters the questions provided for in the act, the result being that 211 voted to become a part of Early County, 8 voted to become a part of Calhoun County, and 6 voted for no change. On December 4, 1945, due notice of the result was given each county, and on the same day the board of commissioners of each county adopted a resolution which in effect declared that all of the territory within the City of Arlington was in Early County. Subsequently maps so defining the county lines were filed in the office of the clerk of the superior court of each county, and notice thereof was published.
Since that time, as applied to the residents of the territory in question, and to the territory in question, the following has occurred: One person has been elected as a member of the board of education; another's estate has been administered, including the sale of realty; the estate of another has been partially administered; from the estate of two others a year's support consisting in part of realty has been granted; a year's support from the estate of another has been granted; seven divorce judgments have been granted, and one of the parties has remarried and has a child by the second marriage; nine transfers of property were recorded in Early County; a corporate charter has been granted; and public-service corporations have returned their property to the Comptroller-General. It was further agreed that the territory in question constituted a substantial portion of the taxable property of Calhoun County, and that prior to the filing of the instant suit no objections to the act had been made by Calhoun County.
The court denied the relief sought and from that judgment the case comes to this court. 1. The act approved February 20, 1945 (Ga. L. 1945, p. 148) provides: "That whenever the boundary-line of one or more of the counties of this State shall lie within the corporate limits of any town or city having more than twelve hundred (1200) and not over fourteen hundred (1400) inhabitants, according to the 1940 census of the United States, and it is desired to change the county lines and bring the said town or city wholly within the limits of one county only, the change of such county lines shall be effected in the following manner." (The act then makes provision for notice, election, and declaration of result.)
The act is attacked as unconstitutional, in that it violates article 1, section 4, paragraph 1 (Code, § 2-401) of the Constitution of the State of Georgia of 1877, which was then in force, providing that no special law shall be enacted in any case for which provision has been made by an existing general law; and further that it is in violation of article 11, section 1, paragraph 3, of the same Constitution, providing that county lines shall not be changed, except under the operation of a general law for that purpose.
In the agreed statement of facts it is admitted that the City of Arlington, under the census of 1940, had a population of 1337, and was the only town or city in the State situated in more than one county with a population between 1200 and 1400. A general law making provision for a change in county lines is contained in Code §§ 23-301 et seq. In view of this general law, and the fact that the act in question could apply only to the City of Arlington, it is therefore clearly and plainly in violation of article 1, section 4, paragraph 1, of the Constitution of 1877 (Code, § 2-401), as being a special law for which provision has been made by an existing general law. Wilkinson County v.Twiggs County, 150 Ga. 583 (104 S.E. 418); Mayor c. ofDanville v. Wilkinson County, 166 Ga. 460 (143 S.E. 769);Christian v. Moreland, 203 Ga. 20 (45 S.E.2d 201);Hasty v. Hamrick, 205 Ga. 84 (52 S.E.2d 470).
2. Early County in its answer interposes the doctrine of estoppel, asserting that Calhoun County by assenting to the election and finally certifying the area in question to be in Early County, and permitting the latter to exercise jurisdiction over *Page 173 the area and the inhabitants thereof for all county purposes for a period of approximately two and a half years, is now estopped from questioning the constitutionality of the act.
In Worth County v. Crisp County, 139 Ga. 117 (76 S.E. 747), it was held, under facts very similar to those here involved, that the doctrine of estoppel did not apply. In that case it was sought to change county lines by an unconstitutional act, and it was held that no estoppel would arise by the consent of Worth County to the exercise of dominion by Crisp County under the unconstitutional act. The facts in that case are not given in the opinion, but the original record shows that, after following the procedure outlined in the unconstitutional act, Crisp County acquired the new territory and exercised complete dominion and jurisdiction over both the area and inhabitants thereof. It is unnecessary to relate in detail the various acts on the part of the two counties of the area as shown by the record in that case, but suffice it to say that the various acts there enumerated are, in principle, the same as those stated in the instant case.
It is strongly urged that the former case is not controlling, but is distinguishable. While in that case the suit was brought within eight months from the time Crisp County took jurisdiction over the territory, and in the instant case a period of two and a half years elapsed before proceedings were instituted; yet we see no material element in the doctrine of estoppel arising here by this difference in the time of instituting suit, or in the extent that individual or property rights may have been affected, as the surrender by Worth County of its jurisdiction to Crisp County was just as complete as the surrender here of Calhoun County to Early County. Neither is there any sound distinction between the absence of estoppel in that case and the instant case by reason of the provisions of the two acts, in that the act pertaining to Worth County and Crisp County provided no duties for the Board of Commissioners, as the governing authorities of Worth County, to perform, while in the act here in question the Board of Commissioners of Calhoun County were required to actually participate in effecting the transfer. Under the various acts alleged in that case to establish an estoppel against Worth County, some were of such a nature as would necessarily imply that the County Commissioners had relinquished the jurisdiction *Page 174 of their county to Crisp County over the territory involved. In fact there was a specific allegation that the Commissioners of Worth County would not pay the cost of the election for which provision was made under the act, for the reason that the territory involved was not a part of Worth County, but was a part of Crisp County. Nor do we see any difference in the principle involved, on account of the territory in the Worth v. CrispCounty case being rural, and the territory here being a part of a municipality.
Another instance where the doctrine of estoppel was denied as applied to affecting the true boundary lines between counties may be found in Smith v. Dees, 92 Ga. 549 (17 S.E. 925). See also Code, § 89-903; Kennedy v. Howard, 183 Ga. 410 (188 S.E. 673).
Early County relies upon the decision in DeKalb County v.Atlanta, 132 Ga. 727 (6) (65 S.E. 72), where an act of the legislature provided for an election to determine boundary lines between counties, and the act was attacked and it was sought to enjoin the holding of the election; and where the court, under authority of a previous decision, Mayor c. of Macon v.Hughes, 110 Ga. 795 (2) (36 S.E. 247), held that, under the facts of the case under consideration, the proceedings to hold an election should be enjoined. After so ruling the court then said: "Indeed, if the plaintiffs had remained quiescent and had permitted the election to be held, the notices given, and the line between the two counties to be changed, and dominion over territory taken from one county to be exercised by the other, and perhaps expense incurred, and had then for the first time asserted that the entire proceeding was unconstitutional, would they not have been met with the contention that they were estopped, or that equity would not grant them relief because of laches in applying for its aid?"
The above expression, or question propounded in that decision, was not involved in the case. As above stated, the case was predicated upon a previous decision. The question of estoppel was neither pleaded nor involved. It is significant to note that the author of that opinion, Mr. Justice Samuel C. Atkinson, three years later wrote the decision in Worth County v. CrispCounty, supra, holding that the doctrine of estoppel in a similar *Page 175 situation did not apply, upon which case the decision here is largely predicated. It is, therefore, reasonable to conclude that the author himself considered the foregoing language as obiter dicta.
Accordingly, we rule that Calhoun County was not estopped to assert the unconstitutionality of the act, nor were they guilty of laches under Code § 37-119.
3. Early County asserts that, even though the act in question be unconstitutional, it should not be so declared, for the reason that both counties and the inhabitants of the territory in question, in assuming the act to be valid, have proceeded so far thereunder in establishing personal and property rights that the trouble and confusion incident to a readjustment thereof should overshadow and outweigh any defect in the constitutionality of the act.
Therefore, they insist that under these circumstances the doctrine of argumentum ab inconvenienti should be applied. Our attention is directed to the recent case of Smith v. CityCouncil of Augusta, 203 Ga. 511 (3) (47 S.E.2d 582), where, though the doctrine was not applied, the cases of Solomon v.Commissioners of Cartersville, 41 Ga. 157, Gormley v.Taylor, 44 Ga. 76, and Macon Augusta R. Co. v. Little,45 Ga. 370, were cited. Without entering into an analysis of the extent, if any, to which this doctrine entered into and affected the decisions in those cases; and without seeking to draw any comparison between the conditions existing and the resulting consequences in the instant case, and those described in the latter two of the above cases, it is clear that this doctrine should not be here applied. The Constitution is the fundamental law, and where an act is clearly and plainly in violation thereof it is the duty of this court so to determine irrespective of the consequences. Where the constitutionality of an act is concerned, it is only when the question is close and doubtful that the doctrine of argumentum ab inconvenienti will be applied, and consideration be taken of consequences. As stated in the first division of this opinion, the act here in question is clearly and plainly in violation of the Constitution, and therefore this doctrine is not applicable.
Judgment reversed. All the Justices concur. *Page 176