(Ga. L. 1965, p. 298, § 3; Ga. L. 1966, p. 296, § 1; Ga. L. 1976, p. 1429, § 1; Ga. L. 1987, p. 3, § 36; Ga. L. 1989, p. 1584, § 1; Ga. L. 1991, p. 94, § 36; Ga. L. 1998, p. 295, § 3.)
Law reviews.- For article, "The Municipal Home Rule Act of 1965 (this chapter)," see 3 Ga. St. B. J. 333 (1967). For article as to the power of Georgia local governments to regulate the trades and occupations of its citizens, see 9 Ga. L. Rev. 115 (1974). For article, "Extraterritorial Power in Georgia Municipal Law," see 12 Ga. L. Rev. 1 (1977). For article surveying legislative and judicial developments in Georgia local government law for 1978-79, see 31 Mercer L. Rev. 155 (1979). For note on the validity of population statutes in Georgia, see 2 Ga. St. B. J. 533 (1966). For comment, "Making Debt Pay: Examining the Use of Property Tax Delinquency as a Revenue Source," see 62 Emory L.J. 217 (2012).
JUDICIAL DECISIONSANALYSIS
General Consideration
Editor's notes.
- In light of the similarity of the statutory provisions, decisions prior to enactment of this Code section and under Ga. L. 1927, p. 99 and former Code 1933, § 22-103 are included in the annotations for this Code section.
Municipal corporation is a public corporation, being a subordinate agent of the state, exercising governmental functions in a certain community; and while an ordinance enacted by such governmental agency may in that sense be a law of the state, it is not a law of the state as is contemplated in the Constitution defining the jurisdiction of the Supreme Court and the Court of Appeals. Maner v. Dykes, 183 Ga. 118, 187 S.E. 699 (1936).
County's election authority.
- County's method of not counting abstentions by county commissioners, and therefore not considering abstentions as either affirmative or negative votes, was within the county's authority; thus, a citizen challenging the method of counting votes was not entitled to declaratory relief. Merry v. Williams, 281 Ga. 571, 642 S.E.2d 46 (2007).
This chapter does not provide sole method by which General Assembly may amend city charter so as to change the city boundaries. Lee v. City of Jesup, 222 Ga. 530, 150 S.E.2d 836 (1966), cert. denied, 386 U.S. 993, 87 S. Ct. 1307, 18 L. Ed. 2d 337 (1967).
Subsection (b).
- Procedure for petition and referendum in subsection (b) of O.C.G.A. § 36-35-3 applies only to amendments to municipal charters. Kemp v. City of Claxton, 269 Ga. 173, 496 S.E.2d 712 (1998).
Municipality not estopped from attacking local law passed after charter granted.
- When a local law vitally affecting the rights and powers granted to a municipality by charter is passed subsequently to the granting of the charter, the municipality is not estopped from attacking the provisions of the local law on the ground that the provisions are unconstitutional and void. City of Moultrie v. Moultrie Banking Co., 175 Ga. 738, 165 S.E. 814 (1932) (decided under Ga. L. 1927, p. 99).
O.C.G.A. § 36-35-3 is inapplicable when a municipality's obligation to make available to customers sufficient information about electricity rates is at issue. City of Commerce v. Duncan & Godfrey, Inc., 157 Ga. App. 337, 277 S.E.2d 266 (1981).
City charter provision on term limits for police officers prevailed over police department personnel manual provisions covering the dismissal of police department employees. City of Buchanan v. Pope, 222 Ga. App. 716, 476 S.E.2d 53 (1996).
Quo warranto granted to remove a city attorney improperly appointed by the mayor.
- Writ of quo warranto challenging a city mayor's appointment of a city attorney was properly granted because a council member's abstention on a motion to delegate the power of appointment to the mayor was no vote at all; therefore, there was no tie vote on the motion, and the mayor was not authorized to vote in its favor, leaving authority to appoint an attorney with the council, in accordance with the city charter. Jones v. Boone, 297 Ga. 437, 774 S.E.2d 668 (2015).
Cited in Dodson v. Graham, 462 F.2d 144 (5th Cir. 1972); Jackson v. Inman, 232 Ga. 566, 207 S.E.2d 475 (1974); Savage v. City of Atlanta, 242 Ga. 671, 251 S.E.2d 268 (1978); DeClue v. City of Clayton, 246 Ga. App. 487, 540 S.E.2d 675 (2000); Beaman v. City of Peachtree City, 256 Ga. App. 62, 567 S.E.2d 715 (2002).
Powers of Municipalities
Municipality is a creature of the legislature deriving the municipality's powers and privileges from that body through the municipality's charter. The municipality's ordinances are laws, but only laws of the municipality itself. Maner v. Dykes, 183 Ga. 118, 187 S.E. 699 (1936) (decided under former law).
Municipalities lawfully may exercise powers necessarily implied from powers expressly granted. Goodman v. City of Atlanta, 246 Ga. 79, 268 S.E.2d 663 (1980).
In determining the validity of an ordinance, the court must decide whether the city had the power to enact the ordinance and whether the exercise of the city's power is clearly reasonable. City of Atlanta v. McKinney, 265 Ga. 161, 454 S.E.2d 517 (1995).
Existence of police power dependent on express grant by state.- Police power, while it is an attribute of sovereignty and an inherent power of national and state government because the existence of government as well as the social order, security, life, and health of the individual citizen depend upon it, is a power possessed by municipal corporations only if, where, and to the extent there has been an express grant by the state. Palmer v. Hall, 380 F. Supp. 120 (M.D. Ga. 1974), modified, 517 F.2d 705 (5th Cir. 1975).
Fundamental and substantive changes in city government cannot be made by a municipality under general home rule laws. Bruck v. City of Temple, 240 Ga. 411, 240 S.E.2d 876 (1977).
Authority to enact new charters including drastic changes in city government reserved in General Assembly.
- The General Assembly has reserved the legislative power to enact new charters for existing cities when such charters include drastic changes in the composition and form of city government, and the election and terms of office of the members of the governing authority of cities. Bruck v. City of Temple, 240 Ga. 411, 240 S.E.2d 876 (1977).
Authority to adopt ordinance amending city charter.
- Authority of a municipality to adopt an ordinance amending its city charter cannot be derived from subsection (a), which prohibits the enactment of local ordinances inconsistent with municipal charter provisions. The ordinance must be adopted pursuant to the procedures set out in subsection (b), which establishes one of two methods through which a municipality may amend a municipality's charter without the intervention of the General Assembly. Bruck v. City of Temple, 240 Ga. 411, 240 S.E.2d 876 (1977).
Power to regulate markets and provide reasonable rules for their conduct, looking to the health and safety of a city or community, is a right within the scope of municipal regulation, and the court will not interfere with the exercise of the discretion granted to municipalities upon the ground of unreasonableness, except in a clear case. Jones v. City of Atlanta, 51 Ga. App. 218, 179 S.E. 922 (1935) (decided under former law).
Constitutionality of local law extending municipal boundaries.
- Local law extending municipal boundaries does not violate the constitutional guarantee of due process of the law because the local law subjects property owners in the area annexed to taxation by the municipality; nor does the local law deny to such property owners equal protection of the law within the meaning of U.S. Const., amend. 14. Lee v. City of Jesup, 222 Ga. 530, 150 S.E.2d 836 (1966), cert. denied, 386 U.S. 993, 87 S. Ct. 1307, 18 L. Ed. 2d 337 (1967).
Existence of prior statutes permitting enlargement of boundaries does not deprive General Assembly of power to alter and extend municipal boundaries without the consent of the persons affected thereby. Lee v. City of Jesup, 222 Ga. 530, 150 S.E.2d 836 (1966), cert. denied, 386 U.S. 993, 87 S. Ct. 1307, 18 L. Ed. 2d 337 (1967).
Liability of municipality for bail policy.
- In Georgia, a municipality had power under O.C.G.A. § 36-35-3(a), Ga. Unif. Mun. Ct. R. 18.1, and the municipality's charter to set a bail policy for its municipal court, and its police also had authority under O.C.G.A. §§ 17-6-2(b) and42-4-1(b); therefore, the municipality could be held liable under 42 U.S.C. § 1983 for constitutional violations relating to the municipality's bail policy. Walker v. City of Calhoun, 901 F.3d 1245 (11th Cir. 2018), cert. denied, 139 S. Ct. 1446, 2019 U.S. LEXIS 2446, 203 L. Ed. 2d 681 (U.S. 2019).
Validity of Ordinances
Ordinance which infringes upon common or statute law is void. Cruise v. City of Rome, 94 Ga. App. 373, 94 S.E.2d 617 (1956).
Reasonableness of ordinance a question of law.
- Ordinances of a municipal body under a power vested in the municipal body are conclusive on the courts unless so unreasonable or oppressive of the rights of the citizen as to constitute an attempted abuse rather than a legitimate use of the power; but the reasonableness of an ordinance is a question of law and municipal ordinances are reviewable by the courts as to reasonableness. If found to be unreasonable, those ordinances will be held void. Cruise v. City of Rome, 94 Ga. App. 373, 94 S.E.2d 617 (1956) (decided under former law).
Legislation by municipal corporation must be put in form of an ordinance, and acts that are done in a ministerial capacity and for temporary purposes may be in the form of a resolution. Allen v. Wise, 204 Ga. 415, 50 S.E.2d 69 (1948) (decided under former law).
Municipal ordinance contravening usual and ordinary rights of a citizen cannot be legally passed unless the power to do so be plainly conferred by valid and competent legislative grant. Jewel Tea Co. v. City Council, 59 Ga. App. 260, 200 S.E. 503 (1938) (decided under former law).
Constitutionality of refusal to allow conduct of particular business.
- Unless a business may be held to be a nuisance per se, an Act allowing a municipality to refuse the conduct of the same, irrespective of its compliance with any regulations adopted for the proper exercise of such business, is violative of Ga. Const. 1877, Art. I, Sec. I, Para. III and Art. I, Sec. I, Para. II (see now Ga. Const. 1983, Art. I, Sec. I, Paras. I and II). Jones v. City of Atlanta, 51 Ga. App. 218, 179 S.E. 922 (1935) (decided under former law).
No power to declare lawful business nuisance.
- Municipality has no authority, by ordinance, to declare a useful and per se perfectly lawful business a nuisance, and provide for the issuance of permits by the city, which may be granted or declined in the discretion of the governing authorities. Jones v. City of Atlanta, 51 Ga. App. 218, 179 S.E. 922 (1935) (decided under former law).
Completeness of annexation statute.
- There is no requirement, statutory or otherwise, that the local annexation statute itself make provisions for the myriad adjustments between the annexed territory and the municipality which the annexation necessitates. Bruck v. City of Temple, 240 Ga. 411, 240 S.E.2d 876 (1977).
Charter amendment needed to abolish city department created by home rule enactment.
- City department created by a home rule enactment, once having achieved charter status, can be abolished only by another home rule charter amendment requiring advertisements in advance and adoption by the council at two consecutive regular meetings as required by paragraph (b)(1). Jackson v. Fraternal Order of Police Lodge No. 8, 234 Ga. 906, 218 S.E.2d 633 (1975).
Ordinance was properly advertised in advance by publishing synopsis of proposed amendment. Jackson v. Fraternal Order of Police Lodge No. 8, 234 Ga. 906, 218 S.E.2d 633 (1975).
Requiring corporation to give bond before transporting goods unauthorized.
- City was without authority under the city's charter or the general law to require a corporation to give bond or file a policy of liability insurance as a prerequisite to transporting the corporation's goods from its place of business in an automobile, cart, wagon, or dray. Jewel Tea Co. v. City Council, 59 Ga. App. 260, 200 S.E. 503 (1938) (decided under former law).
Ordinance prohibiting blowing of train whistle.
- Municipal ordinance providing without exception that no person operating a locomotive engine shall blow the whistle thereof within the corporate limits of a city is void as being unreasonable, contrary to public interest, public policy, and the general welfare of the public, when it appears without dispute that the ordinance's application at certain grade crossings within the city would prohibit the operator of a locomotive engine from giving adequate warning to persons who may be in, near, or about to enter a place of danger upon the tracks where the locomotive engine is operating. Cruise v. City of Rome, 94 Ga. App. 373, 94 S.E.2d 617 (1956) (decided under former law).
Waste removal ordinance assessing fees for the collection, removal, or disposal of solid wastes against a property owner for apartment units which were neither occupied nor habitable was not authorized by the city charter. Monticello, Ltd. v. City of Atlanta, 231 Ga. App. 382, 499 S.E.2d 157 (1998).
Claim not valid.- City did not assert a valid breach of ordinance claim arising out of a corporation's failure to pay the city additional sums that the city claimed were owed due to a natural gas billing error as: (1) in order to assert a breach of ordinance claim, the city had to show that the ordinance was validly enacted; (2) the city failed to present any evidence showing that an alleged ordinance setting natural gas billing rates was enacted in conformance with the requirements imposed under Lawrenceville, Ga., City Charter §§ 2.22, 2.29; and (3) the city's claim was, in actuality, simply a claim on an account. City of Lawrenceville v. Ricoh Elecs., Inc., 370 F. Supp. 2d 1328 (N.D. Ga. 2005).
Disregard of parliamentary rule no basis for annulment or invalidation.
- While municipal governing bodies usually adopt or recognize parliamentary law as their rules of order and proceeding, courts ordinarily will not annul or invalidate an ordinance enacted in disregard of parliamentary rule, provided the enactment is made in the manner required by statute. The rules of parliamentary practice are merely procedural, and not substantive. South Ga. Power Co. v. Baumann, 169 Ga. 649, 151 S.E. 513 (1929) (decided under former law).
Racial and sexual quotas in contracts void.
- City ordinance requiring that certain percentages of contracts be awarded on the basis of race and sex conflicts with the legislative intent and purpose embodied in the bid requirement in the city charter that contracts be awarded without favoritism to obtain reasonable quality at the lowest cost, and is therefore void. Georgia Branch, Associated Gen. Contractors of Am., Inc. v. City of Atlanta, 253 Ga. 397, 321 S.E.2d 325 (1984).
Provision for full-time fire department.
- Proposed municipal charter amendment which would require provision of fire protection and that such fire protection be provided by a city fire department, with full-time, paid personnel, employed by the city, does not violate Ga. Const. 1983, Art. IX, Sec. II, Para. III. Sadler v. Nijem, 251 Ga. 375, 306 S.E.2d 257 (1983).
Adoption of occupation tax on businesses within corporate limits was not authorized by O.C.G.A. Ch. 35, T. 36. City of Tunnel Hill v. Ridley, 183 Ga. App. 486, 359 S.E.2d 184, cert. denied, 183 Ga. App. 905, 359 S.E.2d 184 (1987).
OPINIONS OF THE ATTORNEY GENERAL
Editor's notes.
- In light of the similarity of the statutory provisions, opinions prior to the enactment of this Code section are included in the annotations for this Code section.
City police officer may not arrest one for violation of city ordinances when the police officer is outside city limits. 1954-56 Op. Att'y Gen. p. 490 (decided under former law).
Amount of license fees or taxes.- Licensing power of a municipality is granted by the charter creating the municipality; the amount of license fees or taxes a municipality may levy on a particular business is not regulated by statute, but appellate courts have ruled that a municipal tax on an occupation must be reasonable. 1954-56 Op. Att'y Gen. p. 493 (decided under former law).
City 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.
Joint purchase of riot control equipment.- All counties and those municipalities having the requisite charter authority may enter into cooperative agreements with one another for the purchase and use of equipment to be employed in jointly administered riot control programs. 1969 Op. Att'y Gen. No. 69-141.
Governing authority of affected municipality or county has authority to control boxing events in the authority's jurisdiction. 1970 Op. Att'y Gen. No. 70-167.
Effect of failure of prior election on acts validly conducted.- Municipality may treat an election ordered as a result of the failure of a prior election as a continuation of that prior election, recognizing those acts validly conducted. 1976 Op. Att'y Gen. No. 76-23.
Change of election date.- Municipality is not empowered to amend a municipal charter by ordinance with respect to date of a municipal general election. 1977 Op. Att'y Gen. No. 77-33.
City has home rule power to amend a city's charter by ordinance so as to remove from the charter a limitation on the millage rate which the city may use in levying ad valorem taxes. 1983 Op. Att'y Gen. No. U83-19.
Municipal home rule power not violated by World Congress Center's regulations.
- O.C.G.A. § 10-9-14 empowering the Geo. L. Smith II Georgia World Congress Center Authority to regulate activities on the sidewalks and streets immediately adjacent to the World Congress Center's projects during an event period do not violate the City of Atlanta's home rule power under subsection (a) of O.C.G.A. § 36-35-3 or Ga. Const. 1983, Art. IX, Sec. II, Para. III(c). 1994 Op. Att'y Gen. No. U94-4.
City authorized to charge rental fee to state.- City of Atlanta may charge the Board of Regents for permitting a fiber optic cable to lie under city owned streets based on city code provisions enacted pursuant to the city's home rule power. 1995 Op. Att'y Gen. No. 95-14.
RESEARCH REFERENCES
Am. Jur. 2d.
- 42 Am. Jur. 2d, Initiative and Referendum, §§ 6, 24 et seq., 33 et seq., 48. 56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, §§ 30 et seq., 90.
C.J.S.- 62 C.J.S., Municipal Corporations, §§ 30, 112 et seq., 385 et seq.
ALR.
- Power of municipal councils to punish for contempt, 8 A.L.R. 1586.
Validity of municipal ordinance prohibiting or regulating keeping of livestock, 32 A.L.R. 1372; 40 A.L.R. 566.
Delegation by municipality of its powers as to building regulations, 43 A.L.R. 834; 46 A.L.R. 88.
Validity of statute or ordinance relating to place of sale of food, 52 A.L.R. 669.
Power to forbid or restrict repair of wooden building within fire limits, 56 A.L.R. 878.
Constitutionality of city manager or commission form of municipal government, 67 A.L.R. 737.
Power to include in municipal contract or proposal therefor, provisions designed to relieve local unemployment, or encourage local industries, 81 A.L.R. 255.
Implied power of municipality to operate nursery, quarry, gravel pit, or other sites for production of material needed for carrying out powers expressly conferred upon it, 104 A.L.R. 1342.
Matters pertaining to police department as within exclusive control of municipalities under home rule charters, 105 A.L.R. 259.
Home rule charter as affecting power of legislature in respect of municipal taxation, 106 A.L.R. 1202.
Validity, construction, and application of ordinances prohibiting or regulating "curb service," 111 A.L.R. 131.
Power of municipality to impose chain store license tax, 111 A.L.R. 596.
Statute relating to municipal fire departments as interference with local self-government, 141 A.L.R. 903.
Validity of municipal regulation of solicitation of magazine subscriptions, 9 A.L.R.2d 728.
Conclusiveness of declaration of emergency in ordinance, 35 A.L.R.2d 586.
What constitutes requisite majority of members of municipal council voting on issue, 43 A.L.R.2d 698.
Power of municipality or other governmental unit to make contract or covenant exempting or releasing property from special assessment, 47 A.L.R.2d 1185.
Municipal power as to billboards and outdoor advertising, 58 A.L.R.2d 1314.
Validity of municipal regulation of storage or accumulation of lumber, straw, trash, or similar inflammable material, 64 A.L.R.2d 1040.
Ordinance providing for suspension or revocation of state-issued driver's license as within municipal power, 92 A.L.R.2d 204.
Power of municipal corporation to enact civil rights ordinance, 93 A.L.R.2d 1028.
Validity of municipal ordinance regulating time during which restaurant business may be conducted, 53 A.L.R.3d 942.
Validity and construction of curfew statute, ordinance, or proclamation, 59 A.L.R.3d 321; 83 A.L.R.4th 1056.
Construction and application of ordinances relating to unrestrained dogs, cats, or other domesticated animals, 1 A.L.R.4th 994.
Power of municipal corporation to legislate as to Sunday observance, 10 A.L.R.4th 246.
Validity, construction, and effect of juvenile curfew regulations, 83 A.L.R.4th 1056.