DeKalb County v. Atlanta Gas Light Co.
| Citation | 228 Ga. 512,186 S.E.2d 732 |
| Decision Date | 06 January 1972 |
| Docket Number | Nos. 26815-26817,s. 26815-26817 |
| Parties | DeKALB COUNTY et al. v. ATLANTA GAS LIGHT COMPANY. DeKALB COUNTY et al. v. SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY. DeKALB COUNTY et al. v. GEORGIA POWER COMPANY. |
| Court | Supreme Court of Georgia |
George P. Dillard, Herbert O. Edwards, Robert E. Mozley, Decatur, for appellants.
Hansell, Post, Brandon & Dorsey, Albert G. Norman, Sr., Carroll L. Wagner, Jr., Atlanta, M. H. Blackshear, Jr., Decatur, for Atlanta Gas Light Co.
Weekes & Candler, Murphey Candler, Jr., Decatur, Kilpatrick, Cody, Rogers, McClatchey & Regenstein, Harry S. Baxter, Albert C. Tate, Jr., A. Stephens Clay, Atlanta, for Southern Bell.
Troutman, Sanders, Lockerman & Ashmore, Milton A. Carlton, Jr., Piers J. Weyant, Atlanta, for Georgia Power.
Syllabus Opinion by the Court
DeKalb County, the Chairman and Members of the Board of Commissioners of Roads and Revenues, and other officials of the county appeal from the judgments in cases brought by Atlanta Gas Light Company, Southern Bell Telephone & Telegraph Company, and Georgia Power Company, in which the trial judge declared an ordinance of the county, enacted February 9, 1971, to be null and void, and granted interlocutory injunction against the enforcement of the ordinance.
The ordinance requires all telephone, telegraph, gas, and electric companies doing business in the unincorporated area of DeKalb County, and using rights of way owned, acquired, and maintained by the county, to obtain a license for such privilege. Electric and gas companies are required to pay a percentage of non-industrial gross revenue from the sale of electricity and gas in the unincorporated area of the county, and telephone companies are required to pay sums based on the number of telephones in service in the unincorporated area. The ordinance also requires a fee of $75 and $.50 per square yard before any company shall make any cut, excavation, or tunnel in, upon, under, or across any sidewalk, roadbed, street, pavement, or right of way in the unincorporated area of the county, in addition to restoring such area to its previous condition. The ordinance provides for fine and imprisonment for any person violating it.
1. Richmond County Business Association, Inc. v. Richmond County, 224 Ga. 854, 856, 165 S.E.2d 293, 295. The ordinance enacted by DeKalb County does not even purport to regulate the companies affected by it, and these companies are already regulated by the Georgia Public Service Commission. The ordinance was not a licensing ordinance under the police power of the county, but was a taxing ordinance. Richmond County v. Richmond County Business Assn., Inc., 225 Ga. 568, 170 S.E.2d 246; Richmond County v. Richmond County Business Association, Inc., 228 Ga. 281, 185 S.E.2d 399.
2. 'Each county shall be a body corporate with such powers and limitations as may be prescribed by law . . .' Constitution, Art. XI, Sec. I, Par. I (Code Ann. § 2-7801). Counties can exercise only such powers as are conferred on them by law, and a county can exercise no powers except such as are expressly given or necessarily implied from express grant of other powers. Albany Bottling Co. v. Watson, 103 Ga. 503(1), 30 S.E. 270; Town of Decatur v. DeKalb County, 130 Ga. 483, 61 S.E. 23; Bowers v. Hanks, 152 Ga. 659(1), 111 S.E. 38; Barton v. Hardin, 204 Ga. 108(1), 48 S.E.2d 882; Beazley v. DeKalb County, 210 Ga. 41, 77 S.E.2d 740.
3. By constitutional amendment (Ga.L.1958, pp. 582-585) the General Assembly was authorized to empower the Board of Commissioners of Roads and Revenues of DeKalb County to levy license taxes on businesses in the unincorporated area of the county, except businesses subject to regulation by the State Public Service Commission. This amendment was implemented by Ga.L.1959, pp. 2658-2661. DeKalb County contends that the exception in the constitutional amendment violates the Fourteenth Amendment of the United States Constitution (Code § 1-815). It is unnecessary to rule on this contention since DeKalb County would be in no better position if the constitutional amendment were held void,...
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