O.C.G.A. § 36-34-5 (2019)

Annotations

Cross references. - Powers and duties of Environmental Protection Division of Department of Natural Resources pertaining to sewage systems, waste treatment works, § 12-5-20 et seq. Contracts between Department of Natural Resources and municipalities pertaining to

furnishing of water supplies, § 12-5-72. Powers and duties of Environmental Protection Division of Department of Natural Resources with regard to public water systems, § 12-5-170 et seq. Permits for operation of solid waste handling, disposal, facilities, § 12-8-20 et seq. Retention of contractual payments and creation of escrow accounts in contracts for installation, improvement of water or sewer

facilities, § 13-10-81. Exercise of power of eminent domain for construction and operation of waterworks, § 22-3-60 et seq. Code Commission notes. - Pursuant to Code Section 28-9-5, in 1985, a comma was added following ‘‘tolls’’ in the last sentence of subdivision (4) (now subdivision (a)(4)(B)). Law reviews. - For article, ‘‘Local Government and Contracts that Bind,’’

see 3 Ga. L. Rev. 546 (1969). For article advocating centralizing industrial and domestic waste treatment by local statutory amendments, see 23 Mercer L. Rev. 603 (1972). For article surveying local government law in 1984-1985, see 37 Mercer L. Rev. 313 (1985). For annual survey of local government law, see 57 Mercer L. Rev. 289 (2005).

JUDICIAL DECISIONS 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. Property dedicated to a particular purpose cannot by the dedicatee, a municipality, be diverted from that purpose, except under the right of eminent domain. Donalson v. Georgia Power & Light Co., 175 Ga. 462, 165 S.E. 440 (1932) (decided under former law). Power to condemn other property. - One municipality has power to condemn under reasonable circumstances the public property of other municipalities. Mays v. State, 110 Ga. App. 881, 140 S.E.2d 223 (1965). City cannot compel use of city water. - There is nothing in the general authority conferred upon a city under the law set forth in this section in respect to the acquisition or construction of a water system, in addition to any powers a municipality may already have, whereby a city can compel the use of city water, or connection to a city water system. City of Midway v. Midway Nursing & Convalescent Ctr., Inc., 230 Ga. 77, 195 S.E.2d 452 (1973). Nothing in the general authority conferred under O.C.G.A. § 36-34-5 in respect to the acquisition or construction of a water system, in addition to any powers a municipality may already have, empowers a city to compel the use of city water or connection to a city water system. Wall v. City of Athens, 663 F. Supp. 747 (M.D. Ga. 1987), aff ’d sub nom., McCallum v. Athens, 976 F.2d 649 (11th Cir. 1992). No power to conspire with private parties. - While O.C.G.A. § 36-34-5

does establish a policy to displace competition with regulation to some degree, and the legislation immunizes some of the anticompetitive activities engaged in by the defendant in providing water services outside the city from antitrust attack under the state action exemption, the legislation does not provide the state action exemption for contracting and conspiring with private parties, as opposed to political subdivisions, to maintain artificially low rates for these private parties in exchange for the private parties’ agreement not to engage in direct competition, and maintenance of a discriminatory rate schedule, without cost justification, in order to make up for the losses incurred by such conduct. Wall v. City of Athens, 663 F. Supp. 747 (M.D. Ga. 1987), aff ’d sub nom., McCallum v. Athens, 976 F.2d 649 (11th Cir. 1992). Municipal corporation may not compel any person outside the municipal corporation’s territorial limits to accept water service which the municipality undertakes to furnish, nor may the municipal authorities be compelled to render such service. City of Moultrie v. Burgess, 212 Ga. 22, 90 S.E.2d 1 (1955) (decided under former law). Municipal corporation does not become in any sense a public utility by reason of the fact that the municipal corporation is empowered to operate, and does operate, electric light and water plant. City of Moultrie v. Burgess, 212 Ga. 22, 90 S.E.2d 1 (1955) (decided under former law). Constitutionality of different rates for those residing outside corporate limits. - Plaintiffs, having no right to demand water service from the city, may

purchase the water at the city’s charge therefor, or plaintiffs may decline to do so, at plaintiffs’ will, but the plaintiffs are in no position which authorizes the plaintiffs to complain of an excessive charge or a discriminating rate. Hence, there was no merit in the contention that the city’s ordinances which fixed different water rates for those who resided outside of the city’s corporate limits offended U.S. Const., amend. 14, or Ga. Const. 1945, Art. I, Sec. I, Para. II (see now Ga. Const. 1983, Art. I, Sec. I, Para. II). City of Moultrie v. Burgess, 212 Ga. 22, 90 S.E.2d 1 (1955) (decided under former law). Power to set rates in outlying territories. - Municipal corporation may classify rates to be charged in outlying territories, and upon failure of customers to pay such charges, the municipal corporation may discontinue the municipal corporation’s service. City of Moultrie v. Burgess, 212 Ga. 22, 90 S.E.2d 1 (1955) (decided under former law). Only ‘‘users’’ may be charged. - City is authorized to prescribe and collect rates, fees, and charges only for public and private consumers and users who actually

use the city’s sewer system. Hummings v. City of Woodbine, 253 Ga. 255, 319 S.E.2d 862 (1984). Immunity from federal antitrust liability. - City’s anticompetitive operation of a waterworks is protected from federal antitrust liability by the state action immunity doctrine under Parker v. Brown, 317 U.S. 341, 63 S. Ct. 307, 87 L. Ed. 315 (1943), and its progeny. McCallum v. City of Athens, 976 F.2d 649 (11th Cir. 1992). Construction with O.C.G.A. § 36-36-7. - In a dispute concerning a city’s desire to access water lines owned by a county but located in an area annexed by the city, it was determined, upon discerning the interplay between O.C.G.A. §§ 36-34-5 and 36-36-7(b), that the city was not permitted access to the line in question absent compliance with one of the three methods enumerated in § 36-34-5, namely by gift, purchase, or the exercise of the right of eminent domain. Cobb County v. City of Smyrna, 270 Ga. App. 471, 606 S.E.2d 667 (2004). Cited in Coweta County v. City of Newnan, 253 Ga. 457, 320 S.E.2d 747 (1984).

RESEARCH REFERENCES Am. Jur. 2d. - 56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, § 501 et seq. ALR. - Power of state to exact fee or require license for taking water from stream, 29 A.L.R. 1478. Duty of public utility to duplicate service, 52 A.L.R. 1111. Power of municipalities or other political subdivisions to engage in a joint project or enterprise, 123 A.L.R. 997. 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. Waters: right of municipality, as riparian owner, to use of water for public supply, 141 A.L.R. 639. Liability of municipality for fire loss due to its failure to provide or maintain adequate water supply or pressure, 163 A.L.R. 348.

Liability of municipal corporation for damage to property resulting from inadequacy of drains and sewers due to defects in plan, 173 A.L.R. 1031. 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. Granting or taking of lease of property by municipality as within authorization of purchase or acquisition thereof, 11 A.L.R.2d 168. Right of municipality or public to use of subsurface of street or highway for purposes other than sewers, pipes, conduits for wires, and the like, 11 A.L.R.2d 180. Right to compel municipality to extend its water system, 48 A.L.R.2d 1222. Municipal operation of sewage disposal plant as governmental or proprietary function, for purposes of tort liability, 57 A.L.R.2d 1336. Municipality’s liability for damage re-

sulting from obstruction or clogging of drains or sewers, 59 A.L.R.2d 281. Municipality’s liability arising from negligence or other wrongful act in carrying out construction or repair of sewers and drains, 61 A.L.R.2d 874. Right to condemn property in excess of needs for a particular public purpose, 6 A.L.R.3d 297. Propriety of injunctive relief against diversion of water by municipal corporation or public utility, 42 A.L.R.3d 426. Right of municipality to refuse services provided by it to resident for failure of resident to pay for other unrelated services, 60 A.L.R.3d 714.

Validity and construction of regulation by municipal corporation fixing sewer-use rates, 61 A.L.R.3d 1236. What constitutes ‘‘state action’’ rendering public official’s participation in private antitrust activity immune from application of federal antitrust laws, 109 A.L.R. Fed. 758. Construction and application of 7 USCA § 1926(b), prohibiting curtailment or conditioning of water or sewer service based on inclusion within municipal borders, 146 A.L.R. Fed. 387.