concurring specially. I concur in the judgment. The 1962 and 1966 Acts (Ga. L. 1962, p. 119; Ga. L. 1966, p. 409) provide for the methods of annexation of adjacent territory by a municipality. These Acts state that where the ordinance annexing such territory has been adopted, a certified copy of such ordinance shall be filed with the Secretary of State. This court takes judicial notice of such records in the office of the Secretary of State. Code § 38-112.
In the amicus curiae brief of the Georgia Municipal Association, Inc., it is stated, "that at least ninety-one municipalities have annexed approximately five hundred separate tracts of land to *11their respective boundaries” under the authority of these two legislative Acts.
There is a Latin maxim, "argumentum ab inconvenienti.” This maxim calls for the taking into consideration of the inconvenience which the proposed construction of the law would create. The doctrine has been recognized by this court in several cases. In Gormley v. Taylor, 44 Ga. 76, Chief Justice Lochrane, in a concurring opinion said, "Now, before going further, let us glance at the consequences of this decision. I am not unaware that ordinarily courts have nothing to do with questions of public policy, or the entailment of consequences. No man better understands the necessity of lifting the judiciary above the popular prejudices or sympathies than myself. But while in the language of Lord Mansfield, 'We have nothing to do with consequences; if certain rebellions were the result, we cannot prevaricate with our consciences or our God; all we have to say is, fiat justitia ruat coelum’; yet with all judges, consequences must needs influence consideration. We should pause upon the enunciation of legal judgments whose effect would be to upset society, and turn loose chaos over the land.” P. 99.
In Macon & Augusta R. Co. v. Little, 45 Ga. 370, 380, Judge Montgomery, speaking for the majority, said, "Two principles, applicable to the present case, are deducible from Solomon v. The Commissioners of Cartersville — first, a decision by a co-ordinate department of government, upon a question legitimately within its sphere, will have great weight with this court in sustaining the constitutionality of an Act attacked as void, because not properly acted upon by that very department. Secondly, the argumentum ab inconvenienti will be strained to its utmost limits to sustain Acts of the legislature, to declare which void might produce very serious consequences to the State. The principles laid down in that case apply with much greater force to the present; here we have the decision of the three departments of the State government that the body of Acts passed in 1870 are valid, to wit: the legislative, the executive and the decision of this court in Gormley v. Taylor, decided September 5th, 1871, besides a concurrence in their validity by a subsequent executive and legislature, which *12has amended, repealed and refused to repeal, many of the Acts of 1870 — the repeal of the one now under review being expressly attempted, and failing of success. Again, the consequences which might have resulted from declaring all Acts signed by the governor after the adjournment of the legislature invalid, sink into insignificance when compared with those which might follow a decision that the entire body of laws of 1870 should be stricken from the statute book. The power of a court to destroy is tremendous — it cannot rebuild. It should, therefore, approach with great circumspection and caution the investigation of a question in which it is called upon to sweep out of existence, at one blow, more than a hundred laws.”
In Calhoun County v. Early County, 205 Ga. 169, 175 (52 SE2d 854), this court said, "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.” See Norris v. McDaniel, 207 Ga. 232 (60 SE2d 329), the concurring opinion of Presiding Justice Atkinson.
The words of Chief Justice Hughes in Chicot County Drainage District v. Baxter State Bank, 308 U. S. 371 (60 SC 317, 84 LE 329), are timely and applicable in this case. "The courts below have proceeded on the theory that the Act of Congress, having been found to be unconstitutional, was not a law; that it was inoperative, conferring no rights and imposing no duties, and hence affording no basis for the challenged decree. Norton v. Shelby County, 118 U. S. 425, 442 [6 SC 1121, 30 LE 178]; Chicago, I. & L. Ry. Co. v. Hackett, 228 U. S. 559, 566 [33 SC 581, 57 LE 966]. It is quite clear, however, that such broad statements as to the effect of a determination of unconstitutionality must be taken with qualifications. The actual existence of a statute, prior to such a determination, is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased *13by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects,— with respect to particular relations, individual and corporate, and particular conduct, private and official. Questions of rights claimed to have become vested, of status, of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination. These questions are among the most difficult of those which have engaged the attention of courts, state and federal, and it is manifest from numerous decisions that an all-inclusive statement of a principle of absolute retroactive invalidity cannot be justified.”
On the faith of these two Acts, many municipalities in Georgia have annexed adjacent territories. Rights, obligations and duties have been imposed or incurred. To declare these two Acts unconstitutional would cast a serious shadow of doubt on the validity of these prior annexations. I am unwilling to create, by a decision of this court, a condition of inconvenience and even chaos. Such a condition would follow if we held these two Acts to be null and void as of the date of their passage.