Plantation Pipe Line Co. v. City of Bremen

Hawes, Justice,

dissenting. While I concur in the judgment of reversal in this case, I do so upon firm conviction that the decision of the majority in Division 1 of the opinion and the conclusion reached therein are erroneous, and that the legislature, under the 1954 amendment to the Constitution, has no authority to delegate its legislative powers as respects the annexation of territory by municipal corporations.

Division 1 of the majority opinion is predicated upon the analysis therein made of the case of Phillips v. City of Atlanta, 210 Ga. 72 (77 SE2d 723). The legislation drawn in question in that case was section 3 (j) of the so-called Municipal Home Rule Act of 1951 (Ga. L. 1951, pp. 116, 121-123). I submit that that Act bears no resemblance to the Acts which are here drawn in question and that the ruling of this court in the Phillips case, which was less than a full bench decision has no bearing on the question here presented in the light of the later full bench decision of this court in DuPre v. City of Marietta, 213 Ga. 403 (99 SE2d 156). In that case, the constitutionality of the Act approved January 31, 1946 (Ga. L. 1946. pp. 130-131; Code Ann § 69-901) was under consideration, and that Act was therein declared to be void as being an unauthorized delegation of the legislative power reposed by the Constitution in the General Assembly. I submit that a careful comparison of the provisions of the 1946 Act (Code Ann. § 69-901) with the 1962 Act (Code Ann. §§ 69-902 and 69-903), the so-called 100-percent method under which two of the annexations here in question were sought to be accomplished, and the 1966 Act (Code Ann. § 69-904 et seq.), the so-called 60-percent method under which the other two annexations here in question were sought to be accomplished, will show that while the latter two Acts set out more of the details as to how annexations are to be accomplished thereunder, they embody substantially the identical scheme as that employed by the earlier Act and that under the full bench decision of this court in DuPre the 1962 and the 1966 Acts must fall unless authority to delegate to municipalities the legislative *16function of annexing territories is clearly embodied in the provisions of the constitutional amendment ratified on November 2, 1954.

That amendment reads: "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 power 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.” Constitution, Art. XV, Sec. I, Par. I (Code Ann. § 2-8301). (Emphasis supplied). As I read this amendment its language is unambiguous and therefore it is not subject to judicial construction. Griffin v. Vandegriff, 205 Ga. 288, 291 (53 SE2d 345). Therefore, let us look to its language, and by an analysis thereof, determine its meaning, scope and ef--» feet on existing law. By virtue of this amendment, what authority does the legislature have to delegate its legislative powers to municipalities? In the first clause, it is authorized to provide by law for the self-government of municipalities. All that follows thereafter is merely explanatory of that clause. "To that end,” that is, to the end of providing for the self-government of municipalities, the legislature is given authority to delegate its legislative powers. Does self-government include authority to take in or to incorporate into a municipality territory which is not a part of the municipality? I think not.

No Georgia case defining "local self-government” or the simple term "self-government” has been called to my attention by counsel for any of the parties, nor have I found one. A number of decisions of the courts of last resort in other jurisdictions are collected in McQuillin, Municipal Corporations (3d Ed.), Vol. 2, p. 309 et seq., § 7.10 et seq. Those decisions, however, are not numerous, nor are they necessarily all in accord. Some turn on differing constitutional provisions. However, the conclusion which I reach is supported by reason and respectable authority. The power of self-government possessed by a governmental body, whether inherent or derived from delegated authority is the power to control the *17internal affairs of the governmental unit. Anything that relates to the management of the internal affairs of an existing municipality is a matter of local self-government. But, "Matters involving annexation of territory to a municipal corporation are not purely local matters and, therefore, are not proper functions of local self-government; such matters are of a general nature and state-wide in their scope.” Schultz v. City of Upper Arlington, 88 Ohio App. 281 (97 NE2d 218). The exercise of. the power of annexation, it sometimes is said, relates to matters not merely internal to the municipal corporation, but extramural. Such matters are of concern to the entire State, and are not a proper function of local self-government. City of Cincinnati v. Rosi, 92 Ohio App. 8 (109 NE2d 290); Spence v. Watson, 182 Ore. 233 (186 P2d 785). While the annexation of additional territory to an existing municipality does not thereby create a new city, after the annexation is accomplished the city thus enlarged is certainly a different entity from that which existed before annexation. And, the people who, through the process of petitioning and being taken into the city by ordinance become, at the completion of the process citizens of the municipality, cannot be said to have exercised any function of municipal self-government, because under the statutes here in question they are not citizens of any municipality at the time they petition to be taken in. Following this reasoning and the authorities cited, I would hold that the authority granted to the legislature by the 1954 amendment to the Constitution to provide by law for the self-government of municipalities cannot be construed as authorizing the legislature to provide by law for the annexation of territory by the unilateral action of municipalities or even upon the petition or referendum of the voters or landowners in the territories to be annexed.

I would, therefore, hold that the Acts of the legislature of 1962 and of 1966 under which the attempted annexations of territory by the City of Bremen were undertaken in this case are unconstitutional and void and constitute no authority to the City of Bremen to pass the ordinances in question. .

Under such a ruling, it would be unnecessary to pass upon or to consider any other question presented by the appeal. While I do not disagree with the reasoning and the rulings made in Divisions *182 through 4 and Division 6 of the opinion, under the view which I take they are unnecessary to a proper decision in this case. I, therefore, concur in the judgment of reversal but only for the reasons set forth herein, and dissent from the rulings made in Divisions 1 and 5 of the opinion.

I am authorized to state that Justice Nichols concurs in the foregoing dissent.