Bennett v. City of Baxley

This case is for decision by a full bench of six Justices, who are evenly divided on the controlling question, whether section 2 of the act of August 21, 1911 (Acts 1911, p. 700), of the General Assembly, creating a new charter for the City of Baxley, is unconstitutional on the ground that it is in conflict with art. 3, sec. 1, par. 1, of the constitution of Georgia (Civil Code, § 6410), which provides that the legislative power of the State is vested in the General Assembly. The section in question is as follows: “Sec. 2. That the corporate limits of said City of Baxley shall not extend more than one mile in each and every direction from the point where the Southern Railroad depot in said city is now located, and such less distance and including such territory within said mile limit as may be fixed by *276ordinance of the mayor and council of. said city, with the right and privilege on the part of the mayor and council to at any time by ordinance extend the corporate limits of said city so as to include all of the territory within the mile limit herein designated.” Fish, C. J., and Beck, P. J., are of the opinion that the entire section is unconstitutional for the reason assigned. Hill, J., is of the opinion that so much of the section as allowed the council to fix the lines at less than a mile, as they finally did, is unconstitutional. Atkinson, Gilbert, and George, JJ., are of the opinion that .said section is not unconstitutional for the reason assigned. Accordingly, the judgment rendered by the trial court holding the section constitutional stands affirmed by operation of law.

2. All the Justices are of the opinion that the other assignments of error are without merit.

Judgment affirmed by operation of law.