dissenting.
I concur in Divisions 1 and 3, but dissent to Division 2, wherein the majority holds that there was no judicial usurpation of the legislative function of annexation because Centerville agreed not to seek the annexation of property within Warner Robins’ service area. In my opinion, Centerville has no power to agree that it will not annex property and, consequently, • the superior court does not have the power to enjoin annexation by Centerville, whether by consent or otherwise.
“[T]he General Assembly’s power to annex municipal property is plenary. . . .” City of Ft. Oglethorpe v. Boger, 267 Ga. 485, 486 (480 SE2d 186) (1997). The “home rule” provision of the Georgia Constitution of 1983, Art. IX, Sec. II, Par. II, authorizes the General Assembly to delegate its legislative power of annexation to municipalities. Plantation Pipe Line Co. v. City of Bremen, 227 Ga. 1, 6-7 (1) (178 SE2d 868) (1970). However, “municipalities can receive and retain only such legislative power of the General Assembly as that body determines from time to time they should exercise.” Plantation Pipe Line Co. v. City of Bremen, supra at 7 (1). “Municipal corporations are creations of the state, possessing only those powers that have been *188granted to them, and allocations of power from the state are strictly construed. [Cit.]” Kemp v. City of Claxton, 269 Ga. 173, 176 (1) (496 SE2d 712) (1998) (rejecting a direct exercise of legislative power by the electorate). Nothing in the statutes by which the General Assembly has delegated its legislative annexation power, OCGA § 36-36-1 et seq., can be construed to permit a municipality to relinquish its authority to property even by the terms of an agreement with another municipality. See Village of Long Grove v. Village of Kildeer, 497 NE2d 319, 320 (Ill. App. 2 Dist. 1986).
Furthermore, a city “council may not, by an ordinance, bind itself or its successors so as to prevent free legislation in matters of municipal government.” OCGA § 36-30-3 (a). “What can not be done by an ordinance can not be done by a contract.” Screws v. City of Atlanta, 189 Ga. 839, 843 (2) (8 SE2d 16) (1940).
“Powers are conferred upon municipal corporations for public purposes; and as their legislative powers can not... be delegated, so they can not be bargained or bartered away. Such corporations may make authorized contracts, but they have no power, as a party, to make contracts or pass by-laws which shall cede away, control, or embarrass their legislative or governmental powers, or which shall disable them from performing their public duties.” [Cit.]
Horkan v. City of Moultrie, 136 Ga. 561, 563 (1) (71 SE 785) (1911). See also Macon Street R. Co. v. City of Macon, 112 Ga. 782, 785 (2) (38 SE 60) (1901). Compare Ga. Const. of 1983, Art. IX, Sec. III, Par. I (authorizing intergovernmental services contracts). A contract restricting those functions of a city council which are not proprietary, but which are governmental or legislative, has been held to be a nullity, ultra vires, and void. “[T]he municipality would not be estopped from asserting the invalidity of such a contract at any time. [Cits.]” Brown v. City of East Point, 246 Ga. 144 (268 SE2d 912) (1980). See also Barr v. City Council of Augusta, 206 Ga. 750 (2, 3) (58 SE2d 820) (1950).
The annexation power is strictly legislative. Jamison v. City of Atlanta, 225 Ga. 51 (1) (165 SE2d 647) (1969). Thus, an agreement between two municipalities for each to refrain from accepting annexation petitions without the consent of the other is null and void. Village of Long Grove v. Village of Kildeer, supra at 320-321; City of Leeds v. Town of Moody, 319 S2d 242, 246 (Ala. 1975). Neither municipality is estopped from challenging the legality of such an agreement. Village of Lisle v. Village of Woodridge, 548 NE2d 1337, 1342 (Ill. App. 2 Dist. 1989); City of Leeds v. Town of Moody, supra. I believe that it is fundamental that a city council cannot deprive or *189restrict itself or its successors in the exercise of its annexation power by entering into a contract or agreement purporting to limit its authority to annex. See Barton v. Atkinson, 228 Ga. 733, 744 (3) (187 SE2d 835) (1972) (involving a county commission’s authority to rezone). The consent order here was an ultra vires attempt on the part of the Mayor and Council of Centerville “to tie their hands, as well as those of their successors, with respect to a matter of great public interest.” Macon Street R. Co. v. City of Macon, supra at 785 (2). Thus, Centerville is neither estopped from asserting the invalidity, ab initio, of its alleged agreement not to annex, nor is it precluded from enumerating in this appeal that the trial court erred in issuing an injunction based upon the void consent order.
Decided October 26, 1998 — Reconsideration denied November 20,1998. Henry G. Smith, Davis, Gregory, Christy & Forehand, Hardy Gregory, Jr., for appellants. Walker, Hulbert, Gray & Byrd, David G. Walker, Charles W. Byrd, Kellye C. Moore, James E. Elliott, Jr., for appellee.Centerville’s agreement not to annex property is not rendered valid merely because of its inclusion in a consent order regarding water service areas. “Like the power to zone, the power to annex is distinct from the power to plan for the use of land outside the borders of a municipality. ([Cit.])” Village of Long Grove v. Village of Kildeer, supra at 320. “A compromise will not be recognized as valid where the contract of compromise itself represents an ultra vires agreement.” 56 AmJur2d 812, Municipal Corporations, § 814. Although the legislature may confer power on the courts to ascertain a state of facts under which a statute is applicable, “the legislature cannot delegate legislative power to the courts.” Harrell v. Courson, 234 Ga. 350, 352 (216 SE2d 105) (1975).
In my opinion, the trial court erred in enjoining Centerville from annexing any property contained within Warner Robins’ service area. See City of Leeds v. Town of Moody, supra. Therefore, I respectfully dissent to Division 2 and to the judgment of affirmance.
I am authorized to state that Justice Hunstein joins in this dissent.