Osborne v. Ridge View Associates

Hill, Justice,

dissenting.

The majority overrule Abernathy v. Mitchell, 113 Ga. 127 (1) (38 SE 303) (1901). In Abernathy the omission in the "to read” portion of the Act was an oversight. See p. 129.

In the case before us the omission of the words in question v£as deliberate. They were deleted by the Senate. Ga. Senate Journal, Reg. Sess. 1970, pp. 1646-1647. I therefore agree with the majority that the words in question were not in effect after the effective date of the 1970 amendment, Ga. L. 1970, p. 718. However, I would not find it necessary to overrule Abernathy in this case because it is distinguishable. In Abernathy the legislature did not intend to repeal the omitted words; here the legislature intended to repeal the omitted words.

However, the majority find (and I agree) that the 1970 Act had the effect of repealing the words "when no commission or other remuneration is paid or given for or in connection with such sale.” Those words appear in Ga. L. 1963, pp. 557, 560. Those words do not appear anywhere in the 1970 Act which repealed them.

Thus, in my view the 1970 repeal violated Art. Ill, Sec. VII, Par. XVI of the 1945 Constitution (Code Ann. § 2-1916) (Art. Ill, Sec. VII, Par. XII of the 1976 Constitution; Code Ann. § 2-1312) which declared that a ". . . repealing Act, shall distinctly describe the law to be. . . repealed, as well as the alteration to be made.” Nowhere in the 1970 Act is there any description of the alteration (deletion) to be made.

In my view, our Constitution requires that a repealing Act do more than simply omit reference to the repealed words.