City of Moultrie v. Colquitt County Rural Elec. Co.

• Decision Date: 16 September 1955
• Docket Number: No. 18976,18976
• Citation: 89 S.E.2d 657,211 Ga. 842
• Parties: CITY OF MOULTRIE et al. v. COLQUITT COUNTY RURAL ELECTRIC COMPANY.
• Court: Georgia Supreme Court

Page 657

89 S.E.2d 657

211 Ga. 842

CITY OF MOULTRIE et al. v. COLQUITT COUNTY RURAL ELECTRIC COMPANY.

No. 18976.

Supreme Court of Georgia.

Sept. 16, 1955.

Rehearing Denied Oct. 13, 1955.

Syllabus by the Court.

1. The contracts relied upon by the petitioner were executed subsequently to the annexation of the territory by the city (the petitioner having had notice of the annexation) The contracts did not, therefore, create a property right in the petitioner, in opposition to the rights of the city, which should be protected by a court of equity.

2. The assertion that a law or ordinance violates a stated provision of the Constitution, as being discriminatory, arbitrary, and unreasonable, without setting out how or wherein such ordinance is discriminatory, arbitrary, and unreasonable, is too indefinite to invoke any ruling upon the constitutionality of the law of the ordinance.

3. Contentions made for the first time in the brief of counsel present nothing for review.

Colquitt County Rural Electric Company filed a petition for equitable relief against the City of Moultrie, its chief of police, and city manager, and in substance alleged: (4) About 1947, a residential subdivision east of the City of Moultrie, known as East Moultrie Heights, was created and homes were constructed therein. Prior to the creation of the subdivision, and during its development, the petitioner has served the subdivision with electrical energy. (5) There are three blocks in section 2, known as 6, 7, and 8, through which the petitioner has had distribution lines for a number of years. (6) On or about October 23, 1954, the owner of East Moultrie Heights Subdivision made application to the petitioner for service to houses that were to be constructed in blocks 6, 7, and 8, and on or about October 26, 1954, the petitioner began running service lines for dwelling under construction, 'petitioner now serving about 10 houses under construction.' (7) On or about November 15, 1954, the city advised the petitioner that it was annexing blocks 6, 7, and 8, and requested the petitioner to remove its lines therefrom. (8) On February 14, 1955, while the petitioner's employees were installing service to houses therein, police officers of the city arrested the employees. (9) There is an ordinance appearing on the ordinance book of the city, which appears to have been read the first and second times on January 4, 1955, and the third time on January 18, 1955, a copy being attached and marked Exhibit 'A.' (10) Blocks 6, 7, and 8 in the subdivision are not within the corporate limits of the City of Moultrie, but if in such area, the petitioner would be entitled to continue furnishing electrical energy to its customers. (11) The ordinance referred to in paragraph 9 is unconstitutional and void as being discriminatory against the petitioner, and as having been passed for economic reasons in order to give a monopoly to the city in the distribution of electric energy, in violation of the Constitution of the State of Georgia, art. I, sec. I, pars. II and III, and the Fifth and Fourteenth Amendments to the Constitution of the United States. (12) The petitioner built its distribution lines under a grant of right by the owner of the property, and became vested with a license to maintain its lines, and the efforts of the defendants to interfere with its right are in violation of contractual rights, and the ordinance is in violation of contractual rights, and the ordinance is an attempt to impair the rights of contract in violation of the Federal Constitution. (14) Further action and threats by the defendants will destroy the petitioner's business in the three blocks. The city is running lines preparatory to servicing houses under construction, and at the same time prevent the petitioner from running its lines and installing its service therein. (15) The actions and threats of the city's agents, officers, and servants constitute a deliberate and arbitrary invasion of the territory served with electrical energy by the petitioner, and is destructive of the petitioner's business. (16) Unless the defendants are enjoined and restrained from interfering with the petitioner in the lawful conduct of its business, it will sustain irreparable injury. (17) The petitioner has no adequate remedy at law.

The prayers were for process; that the city's agents, servants, and employees be permanently enjoined and restrained from arresting, harassing, or interfering with and petitioner and its agents in the maintenance of service to customers in blocks 6, 7, and 8 of section 2; that the defendants be temporarily enjoined; that the ordinance be decreed null and void, in violation of the provisions of the Constitution of the State of Georgia and of the United States; and for other relief.

On February 18, 1955, the judge of the superior court passed an order for service of process; that the defendants show cause why they should not be enjoined as prayed; and until the further order of the court, the defendants were enjoined and restrained as prayed.

The defendants filed an answer, in which they admitted the allegations of paragraphs 1, 2, 8, and 9, and denied the allegations or paragraphs 5, 10, 11, 12, 16, and 17. In answer to paragraph 3, the defendants alleged that the petitioner is a corporation organized under the Electric Membership Corporation Act, approved March 30, 1937, and that it has been engaged in business since about the year 1937. In answer to paragraph 4, the defendants admitted that about 1947 a residential subdivision known as East Moultrie Heights was created, and that during the development of the subdivision the petitioner served, not the entire area, but a portion thereof, with electrical energy and continues to serve this area. In answer to paragraph 6, the defendants alleged: On August 17, 1954, the owner of blocks 6, 7, and 8 made application to the city for the annexation of the territory. The defendants do not know when the petitioner began to run service lines, but deny that the petitioner is serving, or has served, any houses in either of the blocks by permanent lines connected to and running into the houses. In answer to paragraph 7, the defendants alleged: On November 3, 1954, H. S. Glenn, manager of the petitioner's business, was advised that the city had annexed the territory, that it expected to serve electric current to the residents of the area, and that the city would purchase the petitioner's lines so that it would stand no loss on account of such service. The petitioner declined to sell its lines at any price, and advised the defendants that it was going to try to serve the territory in all events. In further answer to paragraph 8, it was alleged that the employees of the petitioner were violating the ordinance of the city, and that the city manager was performing his duties in ordering their arrest. In answer to paragraph 13, the defendants denied that the city manager and police officers of the city in the enforcement of the ordinance were arbitrary, unreasonable, or discriminatory. The only arrests made were on February 14, 1955, but it was the purpose of the defendants to arrest agents, employees, or representatives of the petitioner, or anyone else, violating the ordinance. The defendants admitted the allegations of paragraph 14, except that the petitioner is serving any of the houses in either of the three blocks. They alleged that, at the time of the filing of the petition, the city had permanent service lines in all of the completed houses in these blocks. The defendants denied the allegations of paragraph 15, except that the defendants contend that the petitioner has no right to sell electrical current in the city without a franchise, which it does not have. Further answering the petition, the defendants alleged: On August 17, 1954, the owner of a part of East Moultrie Heights appeared before the mayor and council of the city and requested orally and in writing that portions of the subdivision be annexed to the city, representing that the development of the area depended on the owner's ability to get city services. On the same date the mayor and council put an ordinance upon its first and second reading for the purpose of annexing the territory, and at that time the petitioner was serving no customers in the area sought to be annexed. After due consideration, the mayor and council passed the ordinance annexing the territory to the city on November 2, 1954, and began the installation of its water, sewer, and electric services. The petitioner had run a distribution line into the area for the purpose of serving the contractor in the construction of the houses, and the city offered to buy the line from the petitioner. The city owns its electrical and water distribution system, and desires to furnish these services to its inhabitants. It is entitled to furnish electricity to its inhabitants without interference from the petitioner, which has no franchise to do business in the city, and is limited by its charter to service to members in rural areas.

On the hearing for interlocutory injunction, the sole testimony introduced was that of H. S. Glenn, manager of the petitioner, who testified: that the corporation was organized under the Rural Electric Membership Act, and the first lines were run in 1937 in Colquitt County; since 1947 the petitioner has been serving rural areas east of the City of Moultrie and east of Pilco Creek, in a section known as East Moultrie Heights Subdivision; the petitioner had been serving customers with both construction and permanent service; the original lines were built in 1951; and the lines built in 1951 were extended on October 26 and 27, 1954. With reference to the lines in blocks 6, 7, and 8, the witness testified on direct examination in part as follows: 'On October 26 [211 Ga. 846] and 27 we built a line into this territory, blocks 6, 7 and 8,-I believe 7 and 8 already had the line,--only the...