In addition to the other powers which it may have, the governing body of any municipal corporation shall have the following powers, under this chapter, relating to the administration of municipal government:
Where any such paper names one or more persons who reside outside the territorial jurisdiction of the municipal corporation, the several sheriffs, marshals, and constables of the several counties of this state are authorized and directed to serve any such paper and make appropriate return of such service by them, as other process is served and returned, on such named persons residing in their respective jurisdictions, upon receipt of a written request to make such service, for the fees allowed for service of process issued by the superior courts of this state;
(Ga. L. 1962, p. 140, § 2; Ga. L. 1973, p. 778, § 2; Ga. L. 1976, p. 188, § 1; Ga. L. 1979, p. 645, § 1; Ga. L. 1987, p. 3, § 36; Ga. L. 1989, p. 812, § 1; Ga. L. 1992, p. 2122, § 2; Ga. L. 1993, p. 91, § 36; Ga. L. 1995, p. 1189, § 1; Ga. L. 2007, p. 164, § 1/HB 107; Ga. L. 2012, p. 847, § 2/HB 1115.)
Cross references.- Home rule powers of municipalities, Ga. Const. 1983, Art. IX, Sec. II, Paras. I-VII.
Extent of interest obtainable by condemnor upon condemnation, § 22-2-85.
Taxation of special franchises, § 48-5-420 et seq.
Code Commission notes.- Pursuant to Code Section 28-9-5, in 1993, "compensation" was substituted for "compensations" in paragraph (2).
Law reviews.- For article, "The Use of the Police Power by Local Governments and Some Problems of Intergovernmental Relations," see 8 J. of Pub. L. 109 (1959). For article, "Local Government and Contracts that Bind," see 3 Ga. L. Rev. 546 (1969).
JUDICIAL DECISIONSANALYSIS
General Consideration
Editor's notes.
- In light of the similarity of the statutory provisions, decisions prior to enactment of this Code section are included in the annotations for this Code section.
Section not retrospective in operation.
- There is no intent expressed in paragraph (7) of O.C.G.A. § 36-34-2 or any of the remaining portions of that section which express an intent that the section be retrospective in the section's operation or act as a ratification for prior acts of a municipality. Blue Ridge Tel. Co. v. City of Blue Ridge, 161 Ga. App. 452, 288 S.E.2d 705 (1982).
Municipal corporation is a political division of the state, and is a public corporation, having for the municipality's object the administration of a portion of the power of government delegated to the municipality for such purpose. It is a creature of the General Assembly and the municipality's charter powers may be enlarged, lessened, or completely withdrawn at the will of the municipality's creator. Spence v. Rowell, 213 Ga. 145, 97 S.E.2d 350 (1957) (decided under former Code 1933, § 22-103).
Nature of powers possessed by municipal corporation.
- Municipal corporation possesses, and can exercise, the following powers, and no others: first, those granted in express words; second, those necessarily or fairly implied; third, those essential to the declared objects and purposes of the corporation - not simply convenient, but indispensable. Jewel Tea Co. v. City Council, 59 Ga. App. 260, 200 S.E. 503 (1938) (decided under former law).
Freedom to interpret powers.
- Grant of authority under O.C.G.A. § 36-34-2 does not define the means by which the cities would and could manage the city's affairs or prohibit municipal governing authorities from choosing how such powers shall be exercised. City of Atlanta v. McKinney, 265 Ga. 161, 454 S.E.2d 517 (1995).
Any fair, reasonable doubt concerning the existence of power is resolved by the courts against the municipal corporation. Jewel Tea Co. v. City Council, 59 Ga. App. 260, 200 S.E. 503 (1938) (decided under former law).
Disposition of business by resolution.
- Proper disposition of administrative business by council of municipal corporation is by resolution. Allen v. Wise, 204 Ga. 415, 50 S.E.2d 69 (1948) (decided under Ga. L. 1898, pp. 255, 256).
Estoppel of council to question legality of election.
- When a council by mistake of law duly advertised and held an election at the wrong time, participating as candidates themselves, the council are estopped from bringing an action quo warranto to question legality. Dorsey v. Ansley, 72 Ga. 460 (1884) (decided under Ga. L. 1872, p. 19).
City cannot regulate construction of substation on power company's property.
- City did not have the authority, under O.C.G.A. § 36-34-2(7), to regulate the construction of a power substation on property owned by the power company since the city's authority was limited to a utility's use of city property. City of Buford v. Ga. Power Co., 276 Ga. 590, 581 S.E.2d 16 (2003).
No contractual agreement established with city through statutes or ordinances.
- In a suit brought by taxi cab companies, the trial court properly granted the city's motion to dismiss because the taxi cab companies failed to established that the statutes permitting the issuance of Certificates of Public Necessity and Convenience (CPNC), or the city's ordinances, created a clear and unequivocal intent by the city to create a contractual or franchise agreement that prevented the city to allow personal transportation network companies to operate in the city. Atlanta Metro Leasing, Inc. v. City of Atlanta, 353 Ga. App. 785, 839 S.E.2d 278 (2020).
Cited in Georgia Power Co. v. Zimmerman, 133 Ga. App. 786, 213 S.E.2d 12 (1975); Savage v. City of Atlanta, 242 Ga. 671, 251 S.E.2d 268 (1978); Brown v. City of E. Point, 152 Ga. App. 801, 264 S.E.2d 267 (1979); City of Athens v. McGahee, 178 Ga. App. 76, 341 S.E.2d 855 (1986); City of LaGrange v. Troup County Elec. Membership Corp., 200 Ga. App. 418, 408 S.E.2d 708 (1991); Clark v. City of Zebulon, 156 F.R.D. 684 (N.D. Ga. 1993); Angell v. Hart, 232 Ga. App. 222, 501 S.E.2d 594 (1998).
Public Employees
Special legislation may not place restrictions in the form of mandatory collective bargaining upon the unlimited powers granted by Ga. L. 1962, p. 140, § 2 (see now O.C.G.A. § 36-34-2) Local 574, Int'l Ass'n of Firefighters v. Floyd, 225 Ga. 625, 170 S.E.2d 394 (1969).
Conflicting special law unconstitutional.
- Georgia Laws 1968, p. 2953, providing for collective bargaining for Chatham County public employees, violates Ga. Const. 1945, Art. I, Sec. IV, Para. I (see now Ga. Const. 1983, Art. III, Sec. VI, Para. IV) since it is a special law dealing with matters provided for by the general law under Ga. L. 1962, p. 140, §§ 1 and 2 (see now O.C.G.A. §§ 36-34-1 and36-34-2). Local 574, Int'l Ass'n of Firefighters v. Floyd, 225 Ga. 625, 170 S.E.2d 394 (1969).
Collective bargaining not required.
- Powers of a municipality to regulate terms of employment may be executed by a city in any manner the city chooses, in the exercise of the city's nondelegable discretion. A city is not required to bargain collectively with any person or organization as to those powers. Local 574, Int'l Ass'n of Firefighters v. Floyd, 225 Ga. 625, 170 S.E.2d 394 (1969).
City ordinance increasing pension plan contribution rate.
- Trial court properly granted the city defendants summary judgment on the city employees' claims of breach of contract and unconstitutional impairment of contract regarding an ordinance increasing their pension plan contribution rate because the Georgia General Assembly expressly contemplated that a municipal corporation's provision for employee retirement or pension benefits would be subject to being supplemented by local law. Borders v. City of Atlanta, 298 Ga. 188, 779 S.E.2d 279 (2015).
Franchises
Granting by municipality of franchise to distribute electricity in municipality is not an ultra vires act. Singer v. City of Cordele, 225 Ga. 323, 168 S.E.2d 138 (1969).
When power to grant franchises stems from paragraph (7) of Ga. L. 1962, p. 140, § 2 (see now O.C.G.A § 36-34-2), there is no violation of former Code 1933, § 69-202 (see now O.C.G.A. § 36-30-3). City of Lithonia v. Georgia Pub. Serv. Comm'n, 238 Ga. 339, 232 S.E.2d 832 (1977).
Municipality can set conditions.
- Municipality has the authority to condition the grant of a franchise upon requirements as the municipality deems wise. Athens-Clarke County v. Walton Elec. Membership Corp., 265 Ga. 229, 454 S.E.2d 510 (1995).
Authority of city to charge franchise fee.
- In O.C.G.A. § 46-3-14(b), nothing in the first sentence purports to prohibit a city from conditioning the city's grant of a street franchise to an electric company upon the payment of a reasonable franchise fee, and the second sentence is a statutory preservation of the right of a "municipality" under paragraph (7) of O.C.G.A. § 36-34-2 to charge "any secondary supplier" a franchise fee, even when the municipality itself is also the primary supplier. City of Calhoun v. North Ga. Elec. Membership Corp., 264 Ga. 205, 443 S.E.2d 469 (1994).
Effect of rate schedule compatible with exercise of municipality's discretion in granting franchises.
- Jurisdiction of the Public Service Commission stems from the Georgia Constitution. Therefore, any indirect effect which a rate schedule might have upon a municipality's exercise of the municipality's discretion in granting franchises is entirely compatible with the authority granted the municipalities by paragraph (7) of this section. City of Lithonia v. Georgia Pub. Serv. Comm'n, 238 Ga. 339, 232 S.E.2d 832 (1977).
Electric company must show right to erect poles in land of highway.
- To justify setting up the company's poles in the land of a highway, a company which uses poles and wires in the transmission of electric currents must show that the company has acquired the right to do so, either by consent or condemnation from the owner of the soil. The designation by the municipality of the street where the poles may be set up is not enough. Donalson v. Georgia Power & Light Co., 175 Ga. 462, 165 S.E. 440 (1932).
Acquiescence in use of streets by telephone company.
- Acquiescence of the city during the period from the 1962 enactment of paragraph (7) of O.C.G.A. § 36-34-2 to the date of the judgment in the trial court, the city's acquiescence in the use of the city streets and the operation of the telephone system, is sufficient conduct on the part of the city so as to estop the city from denying the authority of the defendant telephone company to use the city streets during that period; but as the city's acquiescence did not carry any promise, explicit or implicit, that the city would allow this fait accompli to continue for any definite time or for any time into the future whatsoever, there is no basis upon which the city may be restrained from exercising the city's powers to abrogate this present informal arrangement. Blue Ridge Tel. Co. v. City of Blue Ridge, 161 Ga. App. 452, 288 S.E.2d 705 (1982).
OPINIONS OF THE ATTORNEY GENERALCity may establish personnel department and merit board without the necessity of special Acts of the General Assembly. 1969 Op. Att'y Gen. No. 69-310.
City may set up retirement system for city employees without necessity of amending city charter. 1970 Op. Att'y Gen. No. U70-80.
State law does not prohibit grant of franchise to community antenna television system by municipality; cable television is not regulated by the Georgia Public Service Commission. 1970 Op. Att'y Gen. No. U70-190.
State not exempt from franchise fee when paid indirectly.- While the state might not be required to pay a franchise fee or other tax directly to a city, in those situations where the state is paying money to a company, and that company is in turn remitting the money to the city as a franchise fee, it cannot be said that the state is the entity which is subject to the legal incidence of the tax so that it could successfully assert an exemption from such fees. 1976 Op. Att'y Gen. No. 76-42.
Payment for utilities by department unaffected by taxes paid to municipality.- Obligation of the Department of Administrative Services to pay for utilities at an established rate is not affected by the fact that the sums paid may include or reflect taxes paid by the provider of the services to a municipality. 1976 Op. Att'y Gen. No. 76-42.
Municipal contributions to day care center.- Unless a provision in the city charter allows such an expenditure, a city may not contribute to a day care center. 1984 Op. Att'y Gen. No. U84-14.
RESEARCH REFERENCES
Am. Jur. 2d.
- 56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, §§ 163 et seq., 224, 236.
C.J.S.- 29 C.J.S., Election, § 345 et seq. 37 C.J.S., Franchises, §§ 26, 27. 62 C.J.S., Municipal Corporations, §§ 143, 178, 416, 417, 490 et seq. 63 C.J.S., Municipal Corporations, § 863 et seq. 64 C.J.S., Municipal Corporations, §§ 1169, 1171, 1178, 1180, 1181, 1192, 1292 et seq., 1896 et seq.
ALR.
- Power of municipality to assume the duty of providing and maintaining railroad crossings, 1 A.L.R. 316.
Power of public service commission to increase franchise rates, 3 A.L.R. 730; 9 A.L.R. 1165; 28 A.L.R. 587; 29 A.L.R. 356.
Power of municipal council to correct its minutes, 3 A.L.R. 1308.
Power of municipality to exact license tax or fee from interurban carrier, 31 A.L.R. 594.
Power of municipal corporation to take out liability insurance, 33 A.L.R. 717.
Forfeiture of street railway franchise for breach of condition, 34 A.L.R. 1413.
Power of municipal corporation to purchase or charter a boat or barge, 39 A.L.R. 1332.
Power of municipal corporation to submit to arbitration, 40 A.L.R. 1370.
Liability of municipal corporation upon implied contract for use of property which it received under an invalid contract, 42 A.L.R. 632.
Liability of municipality as affected by license issued by municipal officer, 42 A.L.R. 1208.
Power of municipal corporation or authorities to employ detective, 45 A.L.R. 737.
Liability of municipal corporations and their licensees for the torts of independent contractors, 52 A.L.R. 1012.
Power of municipality to transfer or assign its right to enforce assessment or lien for local improvements, 55 A.L.R. 667.
Power of municipality to maintain public hack stand on property of carrier, 56 A.L.R. 767.
Power of municipal corporation to fix rates of motor vehicles for hire, 65 A.L.R. 1364.
Power of board to appoint officer or make contract extending beyond its own term, 70 A.L.R. 794; 149 A.L.R. 336.
Duration of street franchise without fixed term, beyond the life of the grantee, 71 A.L.R. 121.
Discretion of civil service commission as regards promotional examinations for eligible list, 75 A.L.R. 1234.
Power to include in municipal contract or proposal therefor, provisions designed to relieve local unemployment, or encourage local industries, 81 A.L.R. 255.
Power of municipality to fix specific scale of wages or hours for employees of contractors or subcontractors for municipal contracts, 81 A.L.R. 349; 129 A.L.R. 763.
Power of municipal corporation to employ attorney, 83 A.L.R. 135.
Power of municipality to extend license regulation or occupation tax beyond its own territorial limits, 86 A.L.R. 917.
Rights, duties, and remedy in respect of leasing or hiring public property to private person for occasional use, 86 A.L.R. 1175.
Estoppel of municipality to deny that it gave its consent to street franchise, 89 A.L.R. 619.
Profit factor in determining rates for municipally owned or operated public utility, 90 A.L.R. 700.
Disposition of revenues from operation of revenue-producing enterprise owned by municipal corporation, 103 A.L.R. 579; 165 A.L.R. 854.
Power of municipal corporation, as adjunct of public utility service furnished by it, to sell to consumers equipment necessary or convenient for use of the service, 108 A.L.R. 1454.
Power of municipality to classify for purposes of taxation as affected by classification made by state or its failure to classify, 110 A.L.R. 1203.
Right and duty of city and public utility upon expiration by limitation of street franchise, 112 A.L.R. 625.
Power of county or municipality to exempt from taxation or otherwise aid or subsidize private enterprises conducted for recreational, exhibition, or entertainment purposes, 116 A.L.R. 889.
Right of municipality to invoke constitutional provisions against acts of state legislature, 116 A.L.R. 1037.
Right of municipality or other political subdivision to enforce against other party contract which was in excess of former's power, or which did not comply with the conditions of its power in that regard, 122 A.L.R. 1370.
Power of municipalities or other political subdivisions to engage in a joint project or enterprise, 123 A.L.R. 997.
Municipal ordinance relating to persons engaged in specified occupations or professions as applicable to officials or employees of state or political subdivision other than the municipality, 123 A.L.R. 1383.
Municipal license as affecting municipality's exercise of police power adversely to licensee, 124 A.L.R. 523.
Inclusion of different franchise rights or purposes in same ordinance, 127 A.L.R. 1049.
Power of municipality to agree to abide by conditions or regulations imposed by federal authority in respect of construction, maintenance, or operation of a municipal public utility plant or enterprise, 128 A.L.R. 620.
Public regulation of dry cleaning and dyeing establishments, 128 A.L.R. 678.
Statute relating to municipal fire departments as interference with local self-government, 141 A.L.R. 903.
Implied or inherent power of municipal corporation to sell its real property, 141 A.L.R. 1447.
Validity, construction, and application of municipal ordinances relating to loading or unloading passengers by interurban buses on streets, 144 A.L.R. 1119.
Certificates by state authorizing operation of motorbus lines over section of highway as affected by its subsequent annexation to city, 154 A.L.R. 1440.
Governmental body's right to enjoin breach of contract for unique or extraordinary services, 161 A.L.R. 881.
Power of municipal corporation to contribute financially to municipal league or other organizations of a similar character, 169 A.L.R. 1230.
Discrimination between property within and that outside municipality or other governmental district as to public service or utility rates, 4 A.L.R.2d 595.
Power of city, town, or county or their officials to compromise claim, 15 A.L.R.2d 1359.
Liability of municipality in damages for its refusal to grant permit, license, or franchise, 37 A.L.R.2d 694.
Power of municipality to sell, lease, or mortgage public utility plant or interest therein, 61 A.L.R.2d 595.
Power of municipal corporation to submit to arbitration, 20 A.L.R.3d 569.
Right of municipal corporation to recover back from contractor payments made under contract violating competitive bidding statute, 33 A.L.R.3d 397.
Validity and construction of municipal ordinances regulating community antenna television service (CATV), 41 A.L.R.3d 384.
Standing to contest award of, or acquisition of right to operate, cable TV certificate, license, or franchise in state court action, 78 A.L.R.3d 1255.
Validity, construction, and application of enactments relating to requirement of residency within or near specified governmental unit as condition of continued employment for policemen or firemen, 4 A.L.R.4th 380.
Placement, maintenance, or design of standing utility pole as affecting private utility's liability for personal injury resulting from vehicle's collision with pole within or beside highway, 51 A.L.R.4th 602.
Validity, construction, and application of state enactment, order, or regulation expressly prohibiting sexual orientation discrimination, 82 A.L.R.5th 1.
Construction and application of U.S. Const. Art. I, § 10, cl. 1, and state constitutional provisions proscribing state bills of attainder, 63 A.L.R.6th 1.