When is a Special Law Unlawfully Special?
Practically all state constitutions purport to govern the enactment of special or local legislation. The approaches vary, the results are uneven, and the litigation is voluminous. Probably the one clear point emerging thus far is that no magic formula exists for completely resolving this considerable problem in the local government law of this country.
Everyone knows of Georgia's version of the development. Although our first three constitutions apparently met the matter by ignoring it, the Constitution of 1861 proffered a preliminary principle of prohibition. This principle sought perfection in the constitutions of 1865, 1868, 1877, and now issues forth one of the 1945 Constitution's most familiar proscriptions: "[N]o special law shall be enacted in any case for which provision has been made by an existing general law."
A fascinating facet of the proscription is the almost limitless list of questions thereby generated. What is a "special law"? What is a "general law"? What is a "case"? When is a general law "existing"? Can general statutes expressly save special statutes-either those already in existence or those. to be later enacted? Are there more general exceptions to the proscription? These types of peripheral inquiries aside, the most basic yet crucial quandary projected by the proscription is that of determining which special statutes are permitted and which are precluded. Obviously, the drawing of this line cannot be a mechanical exercise, yet some judicial constants in the undertaking ought to be discoverable. Basically, what is the thrust of prohibiting special statutes "in any case for which provision has been made" by general statutes? In determining a special statute's validity or invalidity, what is the focus of the exercise? Is the tell-tale test whether "conflict" exists between the general statute and the local one? Or, is the appropriate approach an effort to divine a general statutory purpose of "pre-emption"? Or again, is the expected examination to turn upon only a "subject area" treatment by the general statute?
This quandary is not merely an academic one. If a special statute is invalid when a general statute is in "conflict," that is one thing. If a special statute is invalid when a general statute has dealt even superficially with the "subject area," that is another. Either way the ramifications are tremendous, and local government law is a direct recipient of them.
Since its formulation, the Georgia constitution's proscription on special and local legislation has precipitated a great deal of litigation. Although some of these controversies did not involve the point here focused, some did. Both appellate courts have participated in the process, and especially over the last four decades the trail is a trying one.' Without pretense at completeness, a few illustrative instances selected from each of those periods will assuredly reconfirm the adage that, at least in local government law, the easier the question, the harder the answer.
Sentell, R. Perry Jr.
"When is a Special Law Unlawfully Special?,"
Mercer Law Review: Vol. 27
, Article 12.
Available at: https://digitalcommons.law.mercer.edu/jour_mlr/vol27/iss4/12