Powers as to Undertakings and Revenue Bonds Generally

  1. Law
  2. Georgia Code
  3. Local Government
  4. Bonds
  5. Revenue Bonds
  6. Powers as to Undertakings and Revenue Bonds Generally

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  1. In addition to the other powers which it may have, any governmental body shall have power under this article:
    1. To acquire, by gift, purchase, or the exercise of the right of eminent domain, and to construct, to reconstruct, to improve, to better, and to extend any undertaking wholly within or wholly outside the governmental body or partially within and partially outside the governmental body; and to acquire, by gift, purchase, or the exercise of the right of eminent domain, lands, easements, rights in lands, and water rights in connection therewith. For property located within a city, the extraterritorial exercise of eminent domain for redevelopment purposes shall be approved by resolution by the governing authority of the city. For property located in an unincorporated area of a county, the extraterritorial exercise of eminent domain for redevelopment purposes shall be approved by resolution by the governing authority of the county. Any such resolution shall be adopted under the procedures specified in Code Section 22-1-10 and shall specifically and conspicuously delineate each parcel to be affected. The requirement for approval by a governing authority under this Code section shall be in addition to any other approval required by Title 22;
    2. To operate and maintain any undertaking for its own use, for the use of public and private consumers, and for users within and outside the territorial boundaries of the governmental body;
    3. To prescribe, revise, and collect rates, fees, tolls, or charges for the services, facilities, or commodities furnished or made available by such undertaking; and, in anticipation of the collection of the revenues of the undertaking:
      1. To issue revenue bonds to finance, in whole or in part, the cost of the acquisition, construction, reconstruction, improvement, betterment, or extension of any undertaking;
      2. To issue revenue bonds at any time to refund or refinance, in whole or in part, all outstanding revenue bonds against any existing undertaking or any combination thereof or its anticipated revenue; and
      3. To issue revenue bonds at any time to refund or refinance, in whole or in part, all obligations or debt of any nature, including outstanding revenue bonds or general obligation bonds, against any existing undertaking or any combination thereof or its anticipated revenue;
    4. To pledge to the punctual payment of such bonds and interest thereon all or any part of the revenues of the undertaking (including the revenues of improvements, betterments, or extensions thereto thereafter constructed or acquired as well as the revenues of existing systems, plants, works, instrumentalities, and properties of the undertaking so improved, bettered, or extended) or of any part of the undertaking;
    5. To fix the value of existing undertakings at the time the governmental body desires to reconstruct, improve, better, or extend the undertaking and to pledge to the payment of the revenue bonds and the interest thereon issued for the undertaking under this article such part of the revenues of the undertaking as the cost of the reconstruction, improvement, betterment, or extension of the undertaking bears to such cost plus the value of the existing undertaking before reconstruction, improvement, betterment, or extension. This paragraph shall not be construed to restrict or limit the powers granted in paragraph (4) of this Code section; and
    6. To make all contracts, execute other instruments, and do all things necessary or convenient in the exercise of the powers granted in this article, or in the performance of its covenants or duties, or in order to secure the payment of its bonds, provided that no encumbrance mortgage or other pledge of property of the governmental body shall be created thereby, that no property of the governmental body shall be liable to be forfeited or taken in payment of such bonds, and that no debt on the credit of the governmental body shall be thereby incurred in any manner for any purpose.
  2. The use of streets, thoroughfares, parkways, and avenues of traffic in a governmental body for the handling of mobile and foot traffic, the use of same for the parking of mobile equipment, and the availability of off-street parking facilities for such equipment are matters of public concern and the affording of such facilities serves the better welfare of the citizens of a governmental body and may, in the discretion of a governmental body, be considered as one revenue-producing undertaking. If any governmental body desires to acquire, construct, alter, or remodel any property for use as public parking areas or public parking buildings or both and issues revenue bonds in order to finance the acquisition, construction, alteration, or remodeling of the same in accordance with this article, the governmental body may pledge to the payment of the principal, interest, and call premium, if any, of such revenue bonds, the whole or any part of the receipts of parking meters operated by the governmental body, in addition to the revenues derived directly from such public parking areas or public parking buildings or both.

(Ga. L. 1937, p. 761, § 3; Ga. L. 1939, p. 362, § 2; Ga. L. 1951, p. 455, § 1; Ga. L. 1953, Jan.-Feb. Sess., p. 489, § 2; Ga. L. 1992, p. 2197, § 1; Ga. L. 2006, p. 39, § 24/HB 1313.)

Editor's notes.

- Ga. L. 2006, p. 39, § 1/HB 1313, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as 'The Landowner's Bill of Rights and Private Property Protection Act.'"

Ga. L. 2006, p. 39, § 25/HB 1313, not codified by the General Assembly, provides that the amendment to this Code section shall only apply to petitions for condemnation filed on or after April 4, 2006.

Law reviews.

- For article surveying legislative and judicial developments in Georgia local government law for 1978-79, see 31 Mercer L. Rev. 155 (1979). For annual survey of local government law, see 58 Mercer L. Rev. 267 (2006). For article on 2006 amendment of this Code section, see 23 Ga. St. U. L. Rev. 157 (2006).

JUDICIAL DECISIONS

Constitutionality.

- See Lawson v. City of Moultrie, 194 Ga. 699, 22 S.E.2d 592 (1942).

Attack of unconstitutionality on ground of failure to evaluate properties cannot be made against paragraph (a)(4) of this section. Carter v. State, 93 Ga. App. 12, 90 S.E.2d 672 (1955).

Constitutionality of methods of repaying bonds.

- If a municipality desires, a municipality may pledge the entire revenue of existing facilities, along with the revenues from improvements made thereon with funds secured by the issuance of revenue anticipation bonds, to the payment of these certificates and the interest thereon, or the municipality may value the existing facilities, and by following the formula provided in this section, eliminate from the revenue pledged for payment of the bonds that revenue derived from existing facilities on which improvements were made. By the express terms of Ga. Const. 1945, Art. VII, Sec. VII, Para. V (see now Ga. Const. 1983, Art. IX, Sec. VI, Para. I), the acts of a municipality under the above provisions of law are authorized by and contravene no provisions of the Constitution. Carter v. State, 93 Ga. App. 12, 90 S.E.2d 672 (1955).

Revenue Bond Law (O.C.G.A. Art. 3, Ch. 82, T. 36) gives power of eminent domain to authorities such as the Clayton County Water Authority, duly created by act of the General Assembly, and there is no merit in the assertion that the condemnation of an easement for sewage lines over a person's land proceeded illegally because such authority is without authority to exercise the right of eminent domain. Johnston v. Clayton County Water Auth., 222 Ga. 39, 148 S.E.2d 417 (1966).

While the act creating the Henry County Water and Sewerage Authority (HCWSA) did not expressly grant HCWSA the power of eminent domain, the act did grant the HCWSA the power to build and maintain water systems both within and without the limits of the county, and to join the governing authority in the issuance of revenue-anticipation certificates; accordingly, the HCWSA possessed the power of eminent domain as granted under O.C.G.A. § 36-82-62(a). Ware v. Henry County Water & Sewerage Auth., 258 Ga. App. 778, 575 S.E.2d 654 (2002).

Paragraph (a)(5) of this section by its terms in no way restricts or limits powers granted by paragraph (a)(4). Carter v. State, 93 Ga. App. 12, 90 S.E.2d 672 (1955).

Section does not permit changes in contracts.

- In view of the fact that this section authorized municipalities and public authorities "to make all contracts" a court could not interpret this legislation as allowing changes in contracts except in accordance with the provisions contained in such agreements. Legally binding contracts must be honored. City of Jonesboro v. Clayton County Water Auth., 136 Ga. App. 768, 222 S.E.2d 76 (1975).

Power to collect fees independent.

- Power of cities and counties to collect fees, tolls, or other charges from undertakings such as causeways, parking meters, and other endeavors is clearly independent of power to issue revenue bonds, otherwise a county could not operate parking meters without a revenue bond issue and could not charge for meter parking after the bonds were paid. Krause v. City of Brunswick, 242 Ga. 659, 251 S.E.2d 239 (1978).

Although O.C.G.A. § 36-82-62 is part of Georgia's Revenue Bond Law, the power to operate and maintain an undertaking and the power to collect fees or charges from undertakings are clearly independent of the power to issue revenue bonds. McLeod v. Columbia County, 278 Ga. 242, 599 S.E.2d 152 (2004).

Revenue of existing facilities may be pledged to payment of certificates.

- It is clear from this section that if a municipality desires, the municipality may pledge the entire revenue of existing facilities, along with the revenues from improvements made thereon with funds secured by the issuance of revenue anticipation bonds, to the payment of these bonds and the interest thereon, or the municipality may value the existing facilities, and by following the formula provided in this article eliminate from the revenue pledged for payment of the bonds that revenue derived from existing facilities on which improvements were made. By the express terms of Ga. Const. 1945, Art. VII, Sec. VII, Para. V (see now Ga. Const. 1983, Art. IX, Sec. VI, Para. I), the acts of a municipality under the above provisions of law are authorized and contravene no provisions of the Constitution. Dade County v. State, 77 Ga. App. 139, 48 S.E.2d 144 (1948).

Bonds issued to extend existing system of improvements approved.

- Under the provisions of the Revenue Bond Law (O.C.G.A. Art. 3, Ch. 82, T. 36) and the constitutional sanction thereof (Ga. Const. 1945, Art. VII, Sec. VII, Para. V (see now Ga. Const. 1983, Art. IX, Sec. VI, Para. I)), revenue anticipation bonds may be issued by a municipality to extend an existing system of municipal improvements by pledging the entire revenue of the whole system to the payment thereof, subject to the rights of holders of prior issues, without pro-rating the values of the existing and the new facilities and pledging only the revenue of such new facilities according to their proportion to the total value. Carter v. State, 93 Ga. App. 12, 90 S.E.2d 672 (1955).

Municipality has authority to operate sewage treatment facilities. Schanck v. Town of Hephzibah, 236 Ga. 530, 224 S.E.2d 354 (1976).

Improvement of waterworks approved.

- When it appeared that revenue anticipation bonds were to be issued by a town for improvement of waterworks under the authority and in accordance with the method prescribed by the Constitution and the laws incorporated therein by reference thereto, the proposed issuance of the revenue anticipation bonds, the proceeding for validation, and the judgment of validation were not contrary to any provisions of the Constitution. Thigpen v. Town of Davisboro, 81 Ga. App. 610, 59 S.E.2d 522 (1950).

Power to exercise eminent domain outside city limits to establish city sewer system under the Revenue Bond Law (O.C.G.A. Art. 3, Ch. 82, T. 36), and the requirement under Ga. Const. 1983, Art. IX, Sec. II, Para. III(b)(2) that the city must have a contract with the county to provide sewer services to county residents, are not mutually exclusive. Kelley v. City of Griffin, 257 Ga. 407, 359 S.E.2d 644 (1987).

Cited in Miller v. Head, 186 Ga. 694, 198 S.E. 680 (1938); Reed v. City of Smyrna, 201 Ga. 228, 39 S.E.2d 668 (1946); Findley v. City of Vidalia, 78 Ga. App. 581, 51 S.E.2d 542 (1949); Johnson v. State, 107 Ga. App. 16, 128 S.E.2d 651 (1962); Austin Enters., Inc. v. DeKalb County, 222 Ga. 232, 149 S.E.2d 461 (1966).

OPINIONS OF THE ATTORNEY GENERAL

Power of eminent domain not limited by zoning regulations.

- Municipalities have the right to use public property, located within their corporate city limits, for necessary governmental purposes, regardless of existence of any contrary zoning regulations which prohibit such usage. 1981 Op. Att'y Gen. No. U81-1.

Eminent domain beyond corporate city limits.

- Georgia municipalities have power of eminent domain, even beyond corporate city limits, for public works financed by revenue bonds. 1981 Op. Att'y Gen. No. U81-1.

Municipalities need not comply with county zoning regulations when constructing waste-water and sewerage treatment facilities beyond city limits. 1981 Op. Att'y Gen. No. U81-1.

Doubtful that university may issue revenue obligations.

- Legal ability of the Board of Regents of the University System of Georgia to incur debt by issuing revenue obligations is doubtful. 1988 Op. Att'y Gen. No. 88-21.

RESEARCH REFERENCES

Am. Jur. 2d.

- 26 Am. Jur. 2d, Eminent Domain, § 1 et seq. 56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, §§ 423 et seq., 470 et seq. 64 Am. Jur. 2d, Public Securities and Obligations, § 72 et seq.

C.J.S.

- 63 C.J.S., Municipal Corporations, § 1142 et seq. 64 C.J.S., Municipal Corporations, § 1358 et seq. 64A C.J.S. Municipal Corporations, § 2118 et seq.

ALR.

- Power of municipality to acquire and operate ice plant, 68 A.L.R. 872.

Implied power of municipality to operate nursery, quarry, gravel pit, or other operation for production of material needed for carrying out powers expressly conferred upon it, 104 A.L.R. 1342.

Power of municipality to charge nonresidents higher fees than residents for use of municipal facilities, 57 A.L.R.3d 998.


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