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Unofficial Opinion 98-10

Unofficial Opinion 98-10

August 11, 1998
To: 

Representative
District 168

Re: 

Cities that are located in more than one county may be consolidated with a county government. However, in the absence of a change in county lines or some additional general legislation to provide for consolidating governments of a city and more than one county, the city would have to give up some of its territory.

You have asked several questions about the proposed unification of the city of Waycross and Ware County. Your questions center on the fact that part of the city of Waycross is located in Pierce County. Your initial question is whether that fact will prevent unification. If so, what can be done to remove the barrier? If not, will the portion of Waycross in Pierce County cease to be a part of that county? I believe that there are several options available to the drafters of legislation in this matter.

The Georgia Constitution at Art. IX, Sec. III, Para. II(a) authorizes the General Assembly to provide by law for the “consolidation of the governmental and corporate powers and functions vested in municipalities with the governmental and corporate powers and functions vested in a county or counties in which such municipalities are located.” Pursuant to that authority the General Assembly has enacted Official Code of Georgia Ch. 36-68. That legislation allows the General Assembly to provide by local law “for a form of governmental reorganization whereby the charter of a municipality is repealed in order for the county in which the municipality is located to succeed to the corporate powers, functions, rights, assets, and liabilities of the municipality.” O.C.G.A. § 36-68-1. The General Assembly has thus exercised its authority to enact general legislation governing the procedure for consolidation but it has not exercised its full authority in that regard. The constitutional provision is broad enough to allow legislation that would take into account a city that is located in more than one county. However, the legislation enacted clearly is limited to repeal of the city charter and does not contain a mechanism for including the portions of the city that lie in another county. See O.C.G.A. § 36-68-1 et seq.

In this instance, the consequence of repealing the charter of Waycross would be to restore that portion of Pierce County that had been within the city limits of Waycross to the unincorporated portion of Pierce County. Cf. City of Mountain View v. Clayton County, 242 Ga. 163 (1978). If that is an acceptable option, Waycross and Ware County may proceed under O.C.G.A. Ch. 36-68 with a local act of the General Assembly with the result that some of the former territory of Waycross will not be a part of the new consolidated government. This is the method of consolidation that was used in Augusta-Richmond County. See 1988 Ga. Laws 3987. If instead, the planning commission wants to retain the territory from Pierce County in the new consolidated government it is possible for the county lines to be changed by the grand jury pursuant to O.C.G.A. § 36-3-1 and Georgia Constitution Art. IX, Sec. I, Para. II. That procedure would have to take place before the repeal of the Waycross city charter, however.

Another possibility is for the General Assembly to enact additional general legislation implementing its constitutional authority to authorize the consolidation of municipalities with “a county or counties in which such municipalities are located.” The current legislation is much narrower than the authority given to the General Assembly by the Constitution. It could be expanded to specify what procedures are to be followed in cases such as this one in which the major municipality seeking consolidation lies in more than one county. It should be noted that the legislative options discussed above require voter approval. See O.C.G.A. § 36-68-3; Ga. Const., Art. IX, Sec. III, Para. II.

In summary it is my unofficial opinion that cities that are located in more than one county may be consolidated with a county government. However, in the absence of a change in county lines or some additional general legislation to provide for consolidating governments of a city and more than one county, the city would have to give up some of its territory. What that means in this instance is that Waycross and Ware County may be consolidated in spite of the fact that part of Waycross currently lies in Pierce County. In order to include the Pierce County portion of the City of Waycross in the new consolidated government, however, the county line must be changed or new general legislation must be passed to authorize the consolidation of all parts of a city that lies in more than one county.

Prepared by:

KATHRYN L. ALLEN
Senior Assistant Attorney General