Cross references.

- Exemption from securities-registration requirements for securities issued by or guaranteed by public utilities, common carriers, etc., § 10-5-8.

Criminal penalty for damaging, injuring, or interfering with public utility properties, § 16-7-25.

Prohibition against suspension of gas or electrical service for failure to make payments on appliances purchased from or repaired by gas or electric utility company, § 16-12-3.

Prohibition against political campaign contributions by persons acting on behalf of public utility regulated by Public Service Commission, § 21-5-10.

Blasting or excavating operations near underground gas pipes and other underground utility facilities, Ch. 9, T. 25.

Removal and relocation of public utility facilities pursuant to construction or maintenance of public road by Department of Transportation, § 32-6-170 et seq.

Mass transportation, Ch. 9, T. 32.

Sale, lease, etc., of public utility plants or properties by municipalities, § 36-37-7 et seq.

Taxation of special franchises, § 48-5-420 et seq.

Ad valorem taxation of public utilities, § 48-5-510 et seq.

Taxation of income of public service corporations, § 48-7-32.

Law reviews.

- For article, "The New Special Master Rule - Uniform Superior Court Rule 46: Life Jackets for the Courts in the Perfect Storm," see 15 (No. 4) Ga. St. B. J. 20 (2009).

RESEARCH REFERENCES

ALR.

- Eminent domain: measure and elements of damages or compensation for condemnation of public transportation system, 35 A.L.R.4th 1263.

CHAPTER 1 GENERAL PROVISIONS

Administrative Rules and Regulations.

- General rules of the Georgia Public Service Commission and of the State Department of Transportation, Official Compilation of Rules and Regulations of State of Georgia, Rules of Georgia Public Service Commission, Chapter 515-3-1, and Rules of State Department of Transportation, Chapter 672-1.

46-1-1. Definitions.

As used in this title, the term:

  1. "Certificate" means a certificate of public convenience and necessity issued pursuant to this title.
  2. "Commission" means the Public Service Commission.
  3. "Company" shall include a corporation, a firm, a partnership, an association, or an individual.
  4. "Electric utility" means any retail supplier of electricity whose rates are fixed by the commission.
  5. "Gas company" means any person certificated under Article 2 of Chapter 4 of this title to construct or operate any pipeline or distribution system, or any extension thereof, for the transportation, distribution, or sale of natural or manufactured gas.
  6. "Person" means any individual, partnership, trust, private or public corporation, municipality, county, political subdivision, public authority, cooperative, association, or public or private organization of any character.
  7. "Railroad corporation" or "railroad company" means all corporations, companies, or individuals owning or operating any railroad in this state. This title shall apply to all persons, firms, and companies, and to all associations of persons, whether incorporated or otherwise, that engage in business as common carriers upon any of the lines of railroad in this state, as well as to railroad corporations and railroad companies as defined in this Code section.
  8. "Rate," when used in this title with respect to an electric utility, means any rate, charge, classification, or service of an electric utility or any rule or regulation relating thereto.
  9. "Utility" means any person who is subject in any way to the lawful jurisdiction of the commission.

(Orig. Code 1863, §§ 2038, 2039; Code 1868, §§ 2039, 2040; Code 1873, §§ 2065, 2066; Ga. L. 1878-79, p. 125, § 12; Code 1882, §§ 719l, 2065, 2066; Civil Code 1895, §§ 2199, 2263, 2264, 2267; Civil Code 1910, §§ 2642, 2711, 2712, 2715; Ga. L. 1931, Ex. Sess., p. 99, § 2; Ga. L. 1931, p. 199, §§ 2, 33; Ga. L. 1933, p. 198, § 1; Code 1933, §§ 18-101, 18-201, 68-502, 68-601, 93-101; Ga. L. 1939, p. 207, § 1; Ga. L. 1943, p. 179, § 1; Ga. L. 1960, p. 1129, § 1; Ga. L. 1962, p. 630, § 1; Ga. L. 1963, p. 30, § 1; Ga. L. 1963, p. 365, § 1; Ga. L. 1964, p. 298, § 1; Ga. L. 1970, p. 224, § 1; Ga. L. 1975, p. 1190, § 1; Ga. L. 1976, p. 197, § 1; Ga. L. 1979, p. 651, § 1; Ga. L. 1980, p. 479, § 1; Code 1933, § 93-102, enacted by Ga. L. 1981, p. 121, § 2; Ga. L. 1982, p. 3, § 46; Ga. L. 1982, p. 410, §§ 1, 2; Ga. L. 1982, p. 827, §§ 1, 2; Ga. L. 1983, p. 3, § 35; Ga. L. 1983, p. 735, § 1; Ga. L. 1984, p. 22, § 46; Ga. L. 1984, p. 1394, § 1; Ga. L. 1985, p. 1394, § 1; Ga. L. 1986, p. 1283, § 1; Ga. L. 1987, p. 1090, § 1; Ga. L. 1990, p. 709, §§ 1, 2; Ga. L. 1993, p. 579, § 1; Ga. L. 1994, p. 97, § 46; Ga. L. 1994, p. 661, § 1; Ga. L. 1994, p. 1238, § 1; Ga. L. 1995, p. 1302, § 14; Ga. L. 1996, p. 950, § 2; Ga. L. 1997, p. 798, § 1; Ga. L. 2000, p. 951, §§ 9-1, 9-2, 9-3; Ga. L. 2002, p. 415, § 46; Ga. L. 2002, p. 1378, § 8; Ga. L. 2005, p. 334, § 28-1/HB 501; Ga. L. 2007, p. 607, § 1/HB 317; Ga. L. 2007, p. 679, § 1/HB 389; Ga. L. 2009, p. 669, § 1/HB 440; Ga. L. 2011, p. 479, § 18/HB 112; Ga. L. 2012, p. 580, § 14/HB 865; Ga. L. 2012, p. 775, § 46/HB 942.)

The 2002 amendments. The first 2002 amendment, effective April 18, 2002, part of an Act to revise, modernize, and correct the Code, deleted "by the Public Service Commission" preceding "pursuant to this title" in paragraph (2) and substituted "Department of Motor Vehicle Safety" for "Public Service Commission" in paragraph (18). The second 2002 amendment, effective July 1, 2002, rewrote paragraph (7); rewrote subparagraph (9)(C); and, in paragraph (11), substituted "United States Department of Transportation" for "interstate Commerce Commission" and inserted "passenger" near the middle.

The 2005 amendment, effective July 1, 2005, substituted "commission" for "commissioner of motor vehicle safety" in paragraph (7); deleted ", provided that they do not operate to or from fixed termini outside of such limits and to any dray or truck which operates within the corporate limits of a city and is subject to regulation by the governing authority of such city or by the commissioner of motor vehicle safety and which goes beyond the corporate limits only for the purpose of hauling chattels which have been seized under any court process" at the end of division (9)(C)(ii); in division (9)(C)(x), substituted "commissioner of public safety" for "commissioner of motor vehicle safety" three times and inserted "and the Environment" following "Senate Natural Resources" in the next-to-last sentence; deleted division (9)(C)(xii), which read: "Motor vehicles engaged in compensated intercorporate hauling whereby transportation of property is provided by a person who is a member of a corporate family for other members of such corporate family, provided:

"(I) The parent corporation notifies the commissioner of motor vehicle safety of its intent or the intent of one of the subsidiaries to provide the transportation;

"(II) The notice contains a list of participating subsidiaries and an affidavit that the parent corporation owns directly or indirectly a 100 percent interest in each of the subsidiaries;

"(III) A copy of the notice is carried in the cab of all vehicles conducting the transportation; and

"(IV) The transportation entity of the corporate family registers the compensated intercorporate hauling operation with the commissioner of motor vehicle safety, registers and identifies any of its vehicles, and becomes subject to the commissioner's liability insurance and motor common carrier and motor contract carrier and hazardous materials transportation rules. For the purpose of this division, the term 'corporate family' means a group of corporations consisting of a parent corporation and all subsidiaries in which the parent corporation owns directly or indirectly a 100 percent interest;" substituted "state revenue commissioner" for "commissioner of motor vehicle safety" four times in division (9)(C)(xiii) and paragraphs (11) and (18), and added "state revenue" preceding "commissioner's" in division (9)(C)(xiii).

The 2007 amendments. The first 2007 amendment, effective July 1, 2007, in division (9)(C)(ii), in the second sentence, substituted "such vehicles" for "taxicabs and buses" in the middle and added a period at the end, and added the last two sentences. The second 2007 amendment, effective July 1, 2007, added the last sentence in subparagraph (9)(B) and substituted the present provisions of division (9)(C)(xiii) for the former provisions which read: "Vehicles, except limousines, transporting not more than ten persons for hire, except that any operator of such a vehicle is required to register the exempt operation with the state revenue commissioner, register and identify any of its vehicles, and become subject to the state revenue commissioner's liability insurance and vehicle safety rules;".

The 2009 amendment, effective May 4, 2009, added paragraphs (5.1), (6.2), and (6.3); in paragraph (6), near the beginning, inserted "'compensation' or 'for'" and inserted "payment or other", and added "or for hire, provided that no exempt rideshare shall be deemed to involve any element of transportation for compensation or for hire" at the end; and, in paragraph (13), deleted "or" at the end of subparagraph (13)(C), substituted "; or" for a period at the end of subparagraph (13)(D), and added subparagraph (13)(E).

The 2011 amendment, effective July 1, 2011, substituted "Reserved" for the former provisions of paragraph (8), which read: "'Motor carrier of property' means a motor common or contract carrier engaged in transporting property, except household goods, in intrastate commerce in this state."; in subparagraph (9)(A), substituted "persons or household goods or engaged in the activity of nonconsensual towing pursuant to Code Section 44-1-13 for hire over any public highway in this state" for "persons or property for hire over any public highway in this state and not operated exclusively within the corporate limits of any city", and added the last sentence; in subparagraph (9)(B), substituted "household goods" for "property", and inserted "or engaged in the activity of nonconsensual towing pursuant to Code Section 44-1-13," in the first sentence; in division (9)(C)(ii), deleted "drays, trucks, buses, and other motor vehicles" following "Taxicabs" in the first sentence and deleted the period following the first sentence, deleted the second through fourth sentences, relating to the exception of regulation by the governing authorities and tow trucks engaged in consensual towing, respectively, and added "the provisions of this division notwithstanding, vehicles and the drivers thereof operating within the corporate limits of any city shall be subject to the safety regulations adopted by the commissioner of public safety pursuant to Code Section 40-1-8" at the end of the present first sentence; substituted "Reserved" for the former provisions of division (9)(C)(v), which read: "Granite trucks, where transportation from quarry to finishing plant involves not crossing more than two counties"; substituted "Reserved" for the former provisions of division (9)(C)(vi), relating to RFD carriers and star-route carriers; substituted "Reserved" for the former provisions of division (9)(C)(vii), relating to motor trucks of railway companies which perform pick-up and delivery; substituted "Reserved" for the former provisions of division (9)(C)(ix), relating to single source leasing; substituted "Reserved" for the former provisions of division (9)(C)(x), relating to motor vehicles engaged exclusively in the transportation of agricultural or dairy products; substituted "subparagraph" for "paragraph" at the end of division (9)(c)(xiii); substituted "Reserved" for the former provisions of paragraph (11), relating to the definition of "permit"; and substituted "Reserved" for the former provisions of paragraph (13), relating to the definition of "private carrier"; and substituted "commission" for "state revenue commissioner" at the end of paragraph (18).

The 2012 amendments. The first 2012 amendment, effective July 1, 2012, rewrote this Code section. The second 2012 amendment, effective May 1, 2012, part of an Act to revise, modernize, and correct the Code, substituted "renter's" for "rentor's" in subparagraph (5.1)(C). See the Editor's notes regarding the effect of these amendments.

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1986, the definitions in this Code section were arranged in alphabetical order.

Pursuant to Code Section 28-9-5, in 2000, "Senate Natural Resources Committee" was substituted for "Senate Committee on Natural Resources" in the last sentence of division (9)(C)(x).

Editor's notes.

- Ga. L. 2000, p. 951, § 13-1, not codified by the General Assembly, provides that the 2000 Act which amended this Code section becomes fully effective July 1, 2001, but authorizes administrative action commencing April 28, 2000, for purposes of appointing certain officials, adopting rules and regulations, employing personnel, and preparing for and phasing in full implementation; provided, however, that the Governor may by executive order extend the date for full implementation of the Act to no later than July 1, 2003. In accordance with an executive order issued June 29, 2001, by the Governor, the amendment of this Code section by Ga. L. 2000, p. 951, became fully effective July 1, 2001.

Ga. L. 2012, p. 775, § 54(e)/HB 942, not codified by the General Assembly, provides: "In the event of an irreconcilable conflict between a provision in Sections 1 through 53 of this Act and a provision of another Act enacted at the 2012 regular session of the General Assembly, the provision of such other Act shall control over the conflicting provision in Sections 1 through 53 of this Act to the extent of the conflict." Accordingly, the amendment to subparagraph (5.1)(C) of this Code section by Ga. L. 2012, p. 775, 878, § 46(1)/HB 942, was not given effect.

Law reviews.

- For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U.L. Rev. 264 (1997).

JUDICIAL DECISIONS

General Consideration

Exemption of hospital authority vehicle.

- In action against county hospital authority and ambulance driver by automobile accident vehicle, the hospital authority was exempt from the venue provision of former O.C.G.A. § 46-7-17 under the exemption provided for vehicles operated by the state or any subdivision thereof in O.C.G.A. § 46-1-1(9)(C)(viii). Calhoun County Hosp. Auth. v. Walker, 205 Ga. App. 259, 421 S.E.2d 777 (1992), cert. denied, 205 Ga. App. 899, 421 S.E.2d 777 (1992).

Regulation of limousine services.

- City ordinances regulating the fares licensed limousine service companies may charge for trips to and from an airport are not pre-empted by state law where the limousine service comes within the exception set forth in O.C.G.A. § 46-1-1(9)(C)(xiii). Executive Town & Country Servs., Inc. v. Young, 258 Ga. 860, 376 S.E.2d 190 (1989).

Exemption of timber haulers.

- When an insured commercial motor vehicle was acting as a timber hauler at the time of an accident, it was not within the definition of a common carrier or contract carrier and no direct action could be maintained against the insurer because the insurer was outside the ambit of former O.C.G.A. § 46-7-12 (see O.C.G.A. § 40-1-112). Smith v. Southern Gen. Ins. Co., 222 Ga. App. 582, 474 S.E.2d 745 (1996).

Insurer failed to meet its burden of showing that a company it insured was not a "motor common carrier" or a "motor contract carrier" under O.C.G.A. § 46-1-1(9)(C) when a tractor-trailer it owned was involved in an accident because, although it showed that the tractor-trailer was being used to haul timber products when the accident occurred, it did not show that the tractor-trailer was used exclusively for that purpose, and the trial court erred when it granted the insurer's motion for summary judgment on plaintiff's personal injury claims. Jarrard v. Clarendon Nat'l Ins. Co., 267 Ga. App. 594, 600 S.E.2d 689 (2004).

Exemption for hauling logs did not apply.

- In a wrongful death case, a motor carrier's insurer was subject to direct suit under the direct action statute, former O.C.G.A. § 46-7-12(c) (see O.C.G.A. § 40-1-112). The exemption for motor vehicles used exclusively to carry dairy or agricultural products, O.C.G.A. § 46-1-1(9)(C)(x), did not apply because the insured had used a tractor to haul other products besides logs, although the insured had hauled logs exclusively in the weeks prior to the accident. Occidental Fire & Cas. Co. of N.C. v. Johnson, 302 Ga. App. 677, 691 S.E.2d 589 (2010).

Cited in Savannah T. & I. of H. Ry. v. Williams, 117 Ga. 414, 43 S.E. 751, 61 L.R.A. 249 (1903); Helmly v. Savannah Office Bldg. Co., 13 Ga. App. 498, 79 S.E. 364 (1913); Atlanta Term. Co. v. Lowndes, 30 Ga. App. 115, 117 S.E. 111 (1923); Cherry v. City of Atlanta, 47 Ga. App. 719, 171 S.E. 463 (1933), aff'd, 179 Ga. 249, 175 S.E. 563 (1934); Brown v. Union Bus Co., 61 Ga. App. 496, 6 S.E.2d 388 (1939); Acme Freight Lines v. City of Vidalia, 193 Ga. 334, 18 S.E.2d 540 (1942); Collins v. Mills, 198 Ga. 18, 30 S.E.2d 866 (1944); Record Truck Line v. Harrison, 220 Ga. 289, 138 S.E.2d 578 (1964); L.C. Robinson & Sons v. Undercofler, 221 Ga. 391, 144 S.E.2d 755 (1965); Darlington Corp. v. Finch, 113 Ga. App. 825, 149 S.E.2d 861 (1966); Wolverine Ins. Co. v. Strickland, 116 Ga. App. 62, 156 S.E.2d 497 (1967); Nobles v. H.W. Durham & Co., 120 Ga. App. 418, 170 S.E.2d 764 (1969); Travelers Indem. Co. v. Federal Ins. Co., 297 F. Supp. 1346 (N.D. Ga. 1969); Nobles v. H.W. Durham & Co., 226 Ga. 134, 173 S.E.2d 200 (1970); Radcliffe v. Boyd Motor Lines, 129 Ga. App. 725, 201 S.E.2d 4 (1973); Seaboard Coast Line R.R. v. Freight Delivery Serv., Inc., 133 Ga. App. 92, 210 S.E.2d 42 (1974); City of Calhoun v. North Ga. Elec. Membership Corp., 233 Ga. 759, 213 S.E.2d 596 (1975); Gunn v. Sims Crane Serv., Inc., 182 Ga. App. 24, 354 S.E.2d 653 (1987); Progressive Cas. Ins. Co. v. Scott, 188 Ga. App. 75, 371 S.E.2d 881 (1988); Chrostowski v. G & MSS Trucking, Inc., 198 Ga. App. 140, 401 S.E.2d 53 (1990); Axcan Scandipharm v. Schwan's Home Serv., 299 Ga. App. 49, 681 S.E.2d 631 (2009); Southern LNG, Inc. v. MacGinnitie, 294 Ga. 657, 755 S.E.2d 683 (2014).

Common Carriers

Definition of "private carrier."

- A "private carrier" is one who, without being engaged in the business of carrying as a public employment, undertakes to deliver goods in a particular case for hire or reward. McIntyre v. Harrison, 172 Ga. 65, 157 S.E. 499 (1931).

Whether person is common carrier or private carrier depends upon facts; and where there is a question whether the carrier is a private or a common carrier, it is to be determined by the facts relating to, first, whether it is public business or employment, and whether the service is to be rendered to all indifferently; and, second, whether one has so held oneself out as so engaged as to make the person liable for a refusal to accept the employment offered. Georgia Pub. Serv. Comm'n v. Taylor, 172 Ga. 100, 157 S.E. 515 (1931); In re Ga. Air, Inc., 345 F. Supp. 636 (N.D. Ga. 1972).

Status as common carrier cannot be forced on one by legislative fiat. In re Ga. Air, Inc., 345 F. Supp. 636 (N.D. Ga. 1972).

Public nature of common carrier business.

- Whether a person is a common carrier or a private carrier depends upon whether it is public business or employment, and whether the service is to be rendered to all indifferently; and, whether one has so held oneself out as so engaged as to make one liable for refusal to accept the employment offered. McIntyre v. Harrison, 172 Ga. 65, 157 S.E. 499 (1931).

Carrier not common carrier merely by inviting employment by all.

- Mere fact that carrier invites all and sundry persons to employ the carrier does not render the carrier a common carrier, if the carrier reserves the right of accepting or rejecting their offers of goods for carriage, whether the carrier's vehicles are full or empty, being guided in the carrier's decision by the attractiveness or otherwise of the particular offer, and not by the carrier's ability or inability to carry, having regard to the carrier's other engagements. McIntyre v. Harrison, 172 Ga. 65, 157 S.E. 499 (1931); Georgia Pub. Serv. Comm'n v. Taylor, 172 Ga. 100, 157 S.E. 515 (1931).

Single contract of transportation.

- One who contracts to transport goods from one point to another and deliver them in good order and condition, unavoidable accidents only excepted, is not a common carrier, but is responsible on one's own contract as one. Fish v. Chapman & Ross, 2 Ga. 349, 46 Am. Dec. 393 (1847).

Making individual bargains tends to make service private.

- If a carrier does not deal with the public indiscriminately as a matter of routine, but in effect makes an individual bargain in each case, this course of business tends to show that the service is upon a private basis. McIntyre v. Harrison, 172 Ga. 65, 157 S.E. 499 (1931).

Making individual bargains not conclusive of nature of carrier.

- The making of separate contracts is considered in determining whether a person is a private or a public carrier, but is not conclusive, since contracts might be made simply to escape the duties of a common carrier by subterfuge. McIntyre v. Harrison, 172 Ga. 65, 157 S.E. 499 (1931).

Common carrier must be entitled to compensation.

- To make one a common carrier, one must be entitled, either by the bargain or by implication, to toll or hire. Self v. Dunn & Brown, 42 Ga. 528, 5 Am. R. 544 (1871).

Carrying goods as common employment.

- To make a person a common carrier, a person must exercise it as a common employment; the person must undertake to carry goods for persons generally, and the person must hold oneself out as ready to engage in the transportation of goods for hire as a business, and not as a casual occupation pro hac vice. Fish v. Chapman & Ross, 2 Ga. 349, 46 Am. Dec. 393 (1847).

Evidence that carrier is common carrier.

- That one is a common carrier may be evidenced by carrier's own notice, or practically by a series of acts, by one's own habitual continuance in one's line of business. McIntyre v. Harrison, 172 Ga. 65, 157 S.E. 499 (1931).

Express company is common carrier.

- An express company which pursues continuously, for any period of time, the business of transporting goods, packages, etc., is a common carrier. Southern Express Co. v. Newby, 36 Ga. 635, 91 Am. Dec. 783 (1867).

Chartered car.

- There is no exception made in the case of a chartered car. Central R.R. Banking Co. v. Anderson, 58 Ga. 393 (1877).

A school bus is not a motor common carrier. Hancock v. Bryan County Bd. of Educ., 240 Ga. App. 622, 522 S.E.2d 661 (1999).

Operator for hire of school bus.

- The operator for hire of a school motorbus who operates along a certain route every school day in taking all school children alike to and from a certain school is a carrier of passengers insofar as such school children are concerned, and is required to exercise extraordinary care and diligence for the safety of any one of such school children riding in the driver's bus. Sheffield v. Lovering, 51 Ga. App. 353, 180 S.E. 523 (1935).

An ambulance is a common carrier so long as it undertakes to carry sick, injured, or disabled persons indiscriminately and indifferently, so as to make it liable for refusal to accept the employment offered. Bricks v. Metro Ambulance Serv., Inc., 177 Ga. App. 62, 338 S.E.2d 438 (1985) (decided prior to 1996 amendment, adding division (9)(c)(xv)).

Miller running ferry not common carrier.

- One who keeps a ferry for one's own use and for the convenience of customers to one's mill, but who charges no ferriage, is not a common carrier, and is only bound to ordinary diligence. Self v. Dunn & Brown, 42 Ga. 528, 5 Am. R. 544 (1871).

Truck transporting potting soil held not common carrier.

- Truck which was engaged exclusively in the transportation of potting soil was not a "motor common carrier." National Indem. Co. v. Tatum, 193 Ga. App. 698, 388 S.E.2d 896 (1989).

Truck transporting gravel or other road material not common carrier.

- Truck which was engaged exclusively in the transportation of gravel, crushed stone, plant mix road material or road base materials was not a "motor common carrier." Bailey v. Occidental Fire & Cas. Co., 193 Ga. App. 710, 388 S.E.2d 899 (1989).

No set length of road.

- Former Civil Code 1895, § 2264 (see O.C.G.A. § 46-1-1) did not indicate any length of road which the company must have in order to be a common carrier. Bridwell v. Gate City Term. Co., 127 Ga. 520, 56 S.E. 624, 10 L.R.A. (n.s.) 909 (1907).

Common carrier bound to use extraordinary diligence.

- While a carrier of passengers is not an insurer of the safety of the carrier's passengers in the sense that a common carrier of goods is said to be an insurer of the safety of goods carried, the carrier is bound to exercise extraordinary care and diligence for the safety of the carrier's passengers, and it matters not the kind of conveyance used or the nature of the motive power employed. Sheffield v. Lovering, 51 Ga. App. 353, 180 S.E. 523 (1935).

Allegation of negligence unnecessary.

- Public ferrymen being common carriers, no allegation of negligence was necessary in an action brought to recover damages for the loss of property accepted for shipment. Louisville & N.R.R. v. Warfield & Lee, 129 Ga. 473, 59 S.E. 234 (1907); Deen v. Wheeler, 7 Ga. App. 507, 67 S.E. 212 (1910).

Motor Contract Carriers

O.C.G.A.

§ 46-1-1(9)(C) not unconstitutional. - The classification in present O.C.G.A. § 46-1-1(9)(C)(x) and (9)(C)(xi), designed to ameliorate the lot of the producers of farm and dairy products, is not an arbitrary preference within the meaning and the condemnation of U.S. Const., Amend. 14. Aero Mayflower Transit Co. v. Georgia Pub. Serv. Comm'n, 295 U.S. 285, 55 S. Ct. 709, 79 L. Ed. 1439 (1935).

Language in O.C.G.A.

§ 46-1-1(9)(C)(x) limits exemption. - Language "so long as the title remains in the producer" in present O.C.G.A. § 46-1-1(9)(C)(x) limits operation of exemption in that section to such an extent that the only property in the class mentioned which is exempted is property where the "title remains in the producer." This is a reasonable classification in favor of the producer, which will enable movement of the products over the highways so long as title remains in the producer without exaction of the prescribed fee. Aero Mayflower Transit Co. v. Georgia Pub. Serv. Comm'n, 179 Ga. 431, 176 S.E. 487 (1934), aff'd, 295 U.S. 285, 55 S. Ct. 709, 79 L. Ed. 1439 (1935).

O.C.G.A.

§ 46-1-1(9)(C) strictly construed. - With specific reference to O.C.G.A. § 46-1-1(9)(C), exemptions from taxation are to be strictly construed against the taxpayer. Georgia Cas. & Sur. Co. v. Jernigan, 166 Ga. App. 872, 305 S.E.2d 611 (1983).

Limitations on taxicab operations.

- A taxicab which was qualified to operate exclusively within city limits and not to fixed termini without the city limits could not transport passengers for hire as a part of its regular business beyond the city limits except "occasionally" and then not to "fixed termini." Selph v. Georgia Stages, Inc., 62 Ga. App. 887, 10 S.E.2d 209 (1940).

Activities of association constituted operation as motor carrier for hire.

- Where nonprofit association used trucks owned and operated by the association to haul products of association members to and from location in this state, and at the end of the year the amount of fees in excess of costs were refunded to members, the association was operating as a motor carrier for hire, and was required to obtain a certificate of public convenience and necessity. Southeast Shippers Ass'n v. Georgia Pub. Serv. Comm'n, 211 Ga. 550, 87 S.E.2d 75 (1955).

Failure to obtain permit had no impact on status as motor carrier of property.

- Motor carrier's noncompliance with the carrier's responsibility to obtain a permit had no impact on the carrier's status as a Georgia "motor carrier of property" under O.C.G.A. § 46-1-1(8) because while the failure to get a permit rendered the motor carrier in violation of the Act, that failure did not render the motor carrier any less a "motor carrier of property" under applicable law. Sapp v. Canal Ins. Co., 288 Ga. 681, 706 S.E.2d 644 (2011).

Passengers

Definition of passenger not exhaustive.

- Former Civil Code 1910, § 2715 (see O.C.G.A § 46-1-1) afforded one instance of a definition of passenger, but was not exhaustive. There was no statute in this state giving a complete and exhaustive definition of the term "passenger." The relation arises out of contract express or implied, and must depend upon the facts of each case, which are necessarily variable. Payne v. Allen, 155 Ga. 54, 116 S.E. 640 (1923).

Mere intention does not make person passenger.

- A mere intention on the part of one to become a passenger, without regard to any act on the part of the carrier from which an acceptance of the person as a passenger might arise, expressly or by necessary implication, does not constitute such person a passenger. White v. Boyd, 58 Ga. App. 219, 198 S.E. 81 (1938).

Plaintiff's unauthorized boarding of a school bus did not make plaintiff a "passenger" thereon. Hancock v. Bryan County Bd. of Educ., 240 Ga. App. 622, 522 S.E.2d 661 (1999).

Railway mail clerk was a passenger, and former Code 1933, § 18-201 (see O.C.G.A § 46-1-1) was applicable under Georgia law to such person. Jackson v. Southern Ry., 317 F.2d 532 (5th Cir.), cert. denied, 375 U.S. 837, 84 S. Ct. 77, 11 L. Ed. 2d 65 (1963).

Effect of use of school bus for special trips.

- A school bus operator who used a bus on nonschool days for special trips, not charters, in undertaking to transport college students to a football game in Tennessee, was a "carrier of passengers" within the meaning of former Code 1933, § 18-204 (see O.C.G.A § 46-9-132) and while being used on one of its special trips, was a "public conveyance" within the meaning of former Code 1933, § 18-201 (see O.C.G.A § 46-1-1). Scott v. Torrance, 69 Ga. App. 309, 25 S.E.2d 120 (1943).

Legal duty of taxicab operators.

- The operators of a taxicab business of transporting the general public for hire are carriers of passengers, and amenable to the legal duty of exercising extraordinary diligence for their protection. Locke v. Ford, 54 Ga. App. 322, 187 S.E. 715 (1936).

No showing by evidence that plaintiff was passenger.

- Where it is not shown by the evidence that plaintiff made any agreement, express or implied, with the defendant to transport plaintiff in the relationship of passenger and carrier, and plaintiff paid nothing, did not promise to pay anything, and did not profess to have known anything about an arrangement, alleged in plaintiff's petition, whereby from paid admissions to the school entertainment the bus drivers would be compensated for transporting plaintiff and others, it was not shown that plaintiff was a passenger. White v. Boyd, 58 Ga. App. 219, 198 S.E. 81 (1938).

No recovery by person on shuttle train.

- Proof that a railroad company ran a shuttle train from a city to its railroad shops nearby, for the purpose of carrying its employees to and from their work, and that occasionally other persons boarded the train and were carried either to or from the shops without the payment of fare, does not entitle a person who was upon the train and was not an employee to recover for injuries occasioned by a sudden jerk of the train, when there was no payment of fare exacted or knowledge of the presence of the person. Carter v. Seaboard Air-Line Ry., 21 Ga. App. 251, 94 S.E. 280 (1917).

Amusement park ride not "public conveyance."

- Amusement ride known as "The Wheelie" was not a public conveyance within the meaning of O.C.G.A. § 46-1-1, therefore the standard of care owed by the proprietor, owner, and operator of "The Wheelie" was a duty of ordinary care to the proprietor's passengers. Harlan v. Six Flags Over Ga., Inc., 250 Ga. 352, 297 S.E.2d 468 (1982).

OPINIONS OF THE ATTORNEY GENERAL

Common carrier defined.

- A common carrier is one who undertakes for hire to carry all persons indifferently who may apply for passage so long as there is room and there is no legal excuse for refusal. 1957 Op. Att'y Gen. p. 110.

School bus is not motor common carrier. 1957 Op. Att'y Gen. p. 110.

Use of trucks by railroad requires classification as common or contract carriers.

- Trucks used by a railroad operating a pickup and delivery service for which no separate charge is made are to be classified as "common or contract carriers." 1960-61 Op. Att'y Gen. p. 292.

Description of carrier not under jurisdiction of commission.

- A carrier which transports only its own goods and does not contract or hire itself out to transport goods owned by others is not under the jurisdiction of the commission. 1970 Op. Att'y Gen. No. U70-112.

Contractor subject to regulation by commission.

- Independent contractor transporting materials by motor vehicle on public highways and performing ancillary services such as spreading or placing materials at delivery site are subject to regulation by the commission. 1962 Op. Att'y Gen. p. 438.

Exempt and nonexempt motor carriers due to products carried.

- Any motor vehicle which carries the products listed is exempt from the operation of the chapter only if such vehicle hauls or transports exclusively those commodities or others also exempt by law; however, as soon as a motor vehicle begins to carry nonexempt products, either in the same load with exempt products or alternately with exempt products, or indeed at all, then it becomes a motor carrier subject to the chapter, and thus to the jurisdiction of the commission. 1960-61 Op. Att'y Gen. p. 431.

A company constructing a rapid rail passenger service line is a utility within the meaning of O.C.G.A. § 46-1-1 and the Department of Transportation has authority to issue a revocable license to such company to cross the rights-of-way of several state routes so long as consideration is received which represents a substantial benefit to the public. 1995 Op. Att'y Gen. No. 95-45.

RESEARCH REFERENCES

Am. Jur. 2d.

- 13 Am. Jur. 2d, Carriers, § 1 et seq. 14 Am. Jur. 2d, Carriers, § 714. 18 Am. Jur. 2d, Corporations, § 30. 65 Am. Jur. 2d, Railroads, § 6.

20C Am. Jur. Pleading and Practice Forms, Public Utilities, § 3.

C.J.S.

- 13 C.J.S., Carriers, §§ 2, 495, 499, 502.

ALR.

- Carriers: attempt to have child transported without paying fare, 1 A.L.R. 1451.

Status of passenger in ordinary coach who enters Pullman coach for temporary purpose, 18 A.L.R. 71.

Persons or corporations engaged in local transportation of goods as common carriers, 18 A.L.R. 1316.

Federal control of public utilities, 19 A.L.R. 678; 52 A.L.R. 296.

Validity of statute or ordinance in relation to moving vans and moving operations, 20 A.L.R. 210.

Duty and liability to passenger temporarily leaving train, 35 A.L.R. 757; 61 A.L.R. 403.

Powers of federal and state governments respectively as regards railroad stations, 37 A.L.R. 1372.

Company engaged exclusively or mainly in furnishing switching service as carrier engaged in interstate commerce, 38 A.L.R. 1147.

Regulating issuance of securities by public utilities through Public Service Commissions, 41 A.L.R. 889.

Liability of carrier for injury to passenger by car door, 41 A.L.R. 1089.

Passenger's waiver of right to seat, 42 A.L.R. 156.

One operating bus or stage as common carrier, 42 A.L.R. 853.

Presumption and burden of proof as to carrier's responsibility for goods received in good condition and deliver to consignee in bad condition, 53 A.L.R. 996; 106 A.L.R. 1156.

Company furnishing switching service as a common carrier, 54 A.L.R. 620.

Logging or mining road as a common carrier, 67 A.L.R. 588.

Carrier's liability as affected by improper packing or preparation of goods for shipment, 81 A.L.R. 811.

Conductor's acceptance of ticket or pass which because of time limit or for other reason he was not obliged to accept as affecting status of, or duty toward, person tendering it, 88 A.L.R. 760.

Persons hauling commodities for co-operative purchasing or marketing associations, or their members, as common carriers, 98 A.L.R. 226.

Person or corporation transporting goods on the public highways as a common carrier, or private or contract carrier, as regards liability for loss of or damage to goods, 112 A.L.R. 89.

When relation of carrier and passenger commences as between railway or interurban company and one intending to take train or car not at a regular stopping place, 116 A.L.R. 756.

Isolated, occasional, or incidental transportation of person or property for compensation as within contemplation of statute requiring permit or otherwise regulating transportation of persons or property on highway, 123 A.L.R. 229.

Who is "common carrier" within provision of insurance policy providing for indemnity for injury or death while on conveyance operated by common carrier, 149 A.L.R. 1293.

What carriers are within statutory definition of common carriers by motor vehicle, 161 A.L.R. 417.

Car pool or "share-the-expense" arrangement as subjecting vehicle operator to regulations applicable to carriers, 51 A.L.R.2d 1193.

Air carrier as common or private carrier, and resulting duties as to passenger's safety, 73 A.L.R.2d 346.

Share-the-ride arrangement or car pool as affecting status of automobile rider as guest, 10 A.L.R.3d 1087.

Liability for injury to or death of passenger from accident due to physical condition of carrier's employee, 53 A.L.R.3d 669.

What is "conveyance," "passenger conveyance," or "public conveyance" within coverage of accident policy, 60 A.L.R.3d 858.

Who is "fare-paying passenger" within coverage provision of life or accident insurance policy, 60 A.L.R.3d 1273.

Liability for injury caused by fall of person into shaft, or by abrupt drop, sudden movement, or stopping between floors, of automatic passenger elevator, 64 A.L.R.3d 950.

46-1-2. Measure of damages for wrongs and injuries by railroad companies generally; venue for actions against railroad companies and electric companies generally.

  1. As used in this Code section, the term "electric company" means all corporations engaged in the business of either generating or transmitting electricity for light, heat, power, or other commercial purposes.
  2. If any railroad company doing business in this state shall, in violation of any rule or regulation of the Public Service Commission, inflict any wrong or injury on any person, such person shall have a right of action and recovery for such wrong or injury in the county where the wrong or injury occurred and the damages which may be recovered in such actions shall be the same as in actions between individuals, provided that, in cases of willful violation of law, such railroad companies shall be liable for exemplary damages. All such actions under this subsection must be brought within 12 months after the commission of the alleged wrong or injury.
  3. Any railroad, electric company, or gas company shall be sued by anyone whose person or property has been injured by such railroad, electric company, or gas company, or by its officers, agents, or employees, for the purpose of recovering damages for such injuries, in the county in which the cause of action originated; and causes of actions on all contracts shall be brought in the county in which the contract in question is made or is to be performed. If the cause of action arises in a county where the railroad, electric company, or gas company liable to suit has no agent, service may be perfected by the issuance of a second original, to be served upon the company in the county of its principal office and place of business, if in this state, and if not, on any agent of such company. In the alternative, if the company has no agent in the county where the cause of action arises, an action may be brought in the county of the residence of such company.
  4. Whenever any:
    1. Railroad or electric company incorporated under the laws of this state acquires by purchase, lease, or otherwise the ownership or control of the line of railroad of a competing railroad company in this state, in violation of Article III, Section VI, Paragraph V(c) of the Constitution of the State of Georgia;
    2. Railroad or electric company incorporated under the laws of this state acquires by purchase, lease, or otherwise the ownership or control of the generating plant or transmission line of a competing electric company in this state, in violation of Article III, Section VI, Paragraph V(c) of the Constitution of the State of Georgia; or
    3. Gas company incorporated under the laws of this state acquires by purchase, lease, or otherwise the ownership or control of the natural gas pipeline or distribution system of a competing gas company in this state, in violation of Article III, Section VI, Paragraph V(c) of the Constitution of the State of Georgia;

      the venue of an action brought against the railroad, electric company, or gas company for the purpose of setting aside and having annulled such unlawful act of acquisition shall be in any county through which may run the line of railroad or in any county through which may run the transmission line of such electric company or in any county in which may be located the generating plant of such electric company or in any county through which may run the natural gas pipeline or distribution system so unlawfully acquired.

  5. In any cause of action described in this Code section, any judgment rendered in any county other than one designated in this Code section shall be void.
  6. The venue provisions of this Code section shall apply to the following electric companies:
    1. An electric company owning a generating plant in one county and having its situs or principal office either in some other county of this state or beyond the limits of this state;
    2. An electric company operating a generating plant, whether under lease or otherwise, in one county and having its situs or principal office either in some other county of this state or beyond the limits of this state;
    3. An electric company owning a transmission line located in one county and having its situs or principal office in some other county of this state or beyond the limits of this state;
    4. An electric company operating, whether under lease or otherwise, a transmission line located in one county and having its situs or principal office in some other county of this state or beyond the limits of this state;
    5. An electric company owning a transmission line located in, or extending through, more than one county; and
    6. An electric company operating, whether under lease or otherwise, a transmission line located in or extending through more than one county.
  7. The venue provisions of this Code section shall apply to the following gas companies:
    1. A gas company owning a natural gas pipeline or distribution system located in one county and having its situs or principal office in some other county of this state or beyond the limits of this state; and
    2. A gas company owning a natural gas pipeline or distribution system located in, or extending through, more than one county.

(Ga. L. 1855-56, p. 154, §§ 1, 2; Ga. L. 1859, p. 48, § 1; Code 1863, § 3317; Code 1868, § 3329; Ga. L. 1869, p. 14, § 1; Code 1873, § 3406; Ga. L. 1878-79, p. 125, § 10; Code 1882, §§ 719, 3406; Ga. L. 1892, p. 59, § 1; Civil Code 1895, §§ 2197, 2334; Ga. L. 1898, p. 50, § 1; Civil Code 1910, §§ 2640, 2798; Ga. L. 1912, p. 66, §§ 1-4; Code 1933, §§ 93-413, 94-1101; Ga. L. 1983, p. 3, § 62; Ga. L. 1984, p. 22, § 46; Ga. L. 1985, p. 149, § 46; Ga. L. 1986, p. 37, § 1; Ga. L. 1992, p. 6, § 46; Ga. L. 2004, p. 631, § 46; Ga. L. 2013, p. 551, § 1/HB 194.)

The 2004 amendment, effective May 13, 2004, part of an Act to revise, modernize, and correct the Code, revised punctuation in subsection (d).

The 2013 amendment, effective May 6, 2013, substituted "subsection" for "title" in the last sentence of subsection (b); in subsection (c), in the first sentence, substituted "railroad, electric company, or gas company" for "railroad or electric company", inserted ", or gas company," and inserted "causes of", and, in the second sentence, substituted "railroad, electric company, or gas company " for "railroad or electric company" ; substituted the present provisions of subsection (d) for the former provisions, which read: "Whenever any railroad or electric company incorporated under the laws of this state acquires by purchase, lease, or otherwise the ownership or control of the line of railroad of a competing railroad company in this state, in violation of Article III, Section VI, Paragraph V(c) of the Constitution of the State of Georgia, or whenever any railroad or electric company incorporated under the laws of this state acquires by purchase, lease, or otherwise the ownership or control of the generating plant or transmission line of a competing electric company in this state, in violation of Article III, Section VI, Paragraph V(c) of the Constitution of the State of Georgia, the venue of an action brought against the railroad or electric company for the purpose of setting aside and having annulled such unlawful act of acquisition shall be in any county through which may run the line of railroad or in any county through which may run the transmission line of such electric company or in which may be located the generating plant of such electric company so unlawfully acquired."; substituted the present provisions of the introductory paragraph of subsection (f) for the former provisions, which read: "The following electric companies shall be embraced within the provisions of this Code section:"; and added subsection (g). See Editor's notes for applicability.

Cross references.

- Time limitation on actions against railroads for injury to or death of employee, § 34-7-46.

Venue for actions against lessees or possessors of railroads, § 46-8-310.

Venue for actions against receivers, trustees, etc., of railroad companies, § 46-8-314.

Editor's notes.

- Ga. L. 2013, p. 551, § 2/HB 194, not codified by the General Assembly, provides that: "This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval and shall apply to causes of actions arising on or after such effective date." The Governor approved this Act on May 6, 2013.

Law reviews.

- For article discussing aspects of third party practice (impleader) under the Georgia Civil Practice Act (Ch. 11, T. 9), see 4 Ga. St. B. J. 355 (1968). For article, "Statutes of Limitation: Counterproductive Complexities," see 37 Mercer L. Rev. 1 (1985). For annual survey trial practice and procedure, see 38 Mercer L. Rev. 383 (1986). For annual survey of recent developments, see 38 Mercer L. Rev. 473 (1986). For annual survey on trial practice and procedure, see 43 Mercer L. Rev. 441 (1991). For note discussing problems with venue in Georgia, and proposing statutory revisions to improve the resolution of venue questions, see 9 Ga. St. B.J. 254 (1972).

JUDICIAL DECISIONS

General Consideration

Venue provisions constitutional.

- The mandatory venue provisions of O.C.G.A. § 46-1-2(c) were not impliedly repealed by the venue provisions of the Georgia Business Corporation Code, O.C.G.A. Ch. 2, T. 14, and do not violate the equal protection guarantees of the federal constitution. Driskell v. Georgia Power Co., 260 Ga. 488, 397 S.E.2d 285 (1990).

Purpose of section.

- The scheme of O.C.G.A. § 46-1-2 is to make the jurisdiction exclusive in the county where the cause of action originates when there is such resident agent, but elective when there is not. Devereux v. Atlanta Ry. & Power Co., 111 Ga. 855, 36 S.E. 939 (1900).

The combined intent of this O.C.G.A. §§ 46-1-2 and46-2-90 is to provide for the recovery of compensatory and exemplary damages as well as attorney fees for the tortious infliction of property damages upon the owner or possessor of property where the damage is inflicted as the result of a wilful act. Southern Ry. v. Malone Freight Lines, 174 Ga. App. 405, 330 S.E.2d 371 (1985).

No distinction made as to how actions begin.

- O.C.G.A. § 46-1-2 makes no distinction as to how actions begin, whether by petition and process or by the levy of an attachment, but refers to "any judgment" in any action against "all railroad * * * companies." Grand Trunk W.R.R. v. Barge, 75 Ga. App. 646, 44 S.E.2d 281 (1947).

Construction with state constitution.

- Former Code 1933, § 94-1101 (see O.C.G.A § 46-1-2) must be construed in connection with Ga. Const. 1976, Art. VI, Sec. XIV, Para. IV (see Ga. Const. 1983, Art. VI, Sec. II, Para. IV). Southern Ry. v. Wooten, 110 Ga. App. 6, 137 S.E.2d 696 (1964).

Increased venue for actions against railroad corporations.

- The only exceptions to the general rule that a railroad corporation must be sued in the county where its principal office is located are contained in Ga. L. 1898, p. 50, § 1 (see O.C.G.A. § 46-1-2). McCall v. Central of Ga. Ry., 120 Ga. 602, 48 S.E. 157 (1904).

Applicability to railroad companies.

- Provisions of former Code 1933, § 94-1101 (see O.C.G.A § 46-1-2) applied to all railroad companies, without regard to whether they were corporate companies or not, and without regard to whether they were domestic or foreign. Atlanta-Asheville Motor Express v. Dooley, 78 Ga. App. 265, 50 S.E.2d 822 (1948).

Former Civil Code 1895, § 2334 (see O.C.G.A § 46-1-2) was not applicable to action against railroad company for injuries sustained in foreign state on account of the negligence of the agents and servants of the company in that state. Atlanta, K. & N. Ry. v. Wilson, 116 Ga. 189, 42 S.E. 356 (1902); Reeves v. Southern Ry., 121 Ga. 561, 49 S.E. 674, 70 L.R.A. 573, 2 Ann. Cas. 207 (1905).

Injuries sustained in foreign state.

- Former Code 1910, § 2798 (see O.C.G.A § 46-1-2) did not apply if action was for injuries sustained in foreign state. Louisiana State Rice Milling Co. v. Mente & Co., 173 Ga. 1, 159 S.E. 497 (1931); Neal v. CSX Transp., Inc., 213 Ga. App. 707, 445 S.E.2d 766 (1994).

Foreign corporation is nonresident.

- Foreign corporation would have no residence in this state. Atlanta-Asheville Motor Express v. Dooley, 78 Ga. App. 265, 50 S.E.2d 822 (1948).

Section is mandatory.

- Former Civil Code 1895, § 2334 (see O.C.G.A § 46-1-2) did not allow a railroad company, expressly or by silence, to give jurisdiction to the court of a county other than that in which the tort was committed. Its provisions were mandatory. Summers v. Southern Ry., 118 Ga. 174, 45 S.E. 27 (1903).

Action against joint obligors not within section.

- Former Civil Code 1895, § 2334 (see O.C.G.A § 46-1-2) did not apply to an action on a bond made by a railroad company in a county other than that in which its principal office is located, conditioned to pay damages to another railroad company resulting from the delay incident to the prosecution of a writ of error (see O.C.G.A. §§ 5-6-49 and5-6-50) complaining of the refusal to enjoin the latter company from crossing the tracks of the former in still another county. Waycross Air-Line R.R. v. Offerman & W.R.R., 114 Ga. 727, 40 S.E. 738 (1902).

Section not applicable to joint action of trespass.

- Where the company and third person are joint trespassers, former Civil Code 1895, § 2334 (see O.C.G.A § 46-1-2) did not determine the venue of the action. Central of Ga. Ry. v. Brown, 113 Ga. 414, 38 S.E. 989, 84 Am. St. R. 250 (1901).

Cited in Hodges v. Atlantic & G.R.R., 51 Ga. 244 (1874); Central R.R. v. Flournoy, 69 Ga. 763 (1882); Mitchell v. Southwestern R.R., 75 Ga. 398 (1885); Atlanta & F.R.R. v. Western Ry., 50 F. 790 (5th Cir. 1892); Southern Ry. v. Brock, 115 Ga. 721, 42 S.E. 65 (1902); LeCroix v. Western & A.R.R., 118 Ga. 98, 44 S.E. 840 (1903); Southern Ry. v. Grizzle, 124 Ga. 735, 53 S.E. 244, 110 Am. St. R. 191 (1906); Southern Ry. v. Moore, 133 Ga. 806, 67 S.E. 85, 26 L.R.A. (n.s.) 851 (1910); Wright v. Southern Ry., 7 Ga. App. 542, 67 S.E. 272 (1910); Atlanta, B. & A.R.R. v. Atlantic Coast Line R.R., 138 Ga. 353, 75 S.E. 468 (1912); Atkinson v. Olmstead, 140 Ga. 100, 78 S.E. 720 (1913); Flint River & N.E.R.R. v. Sanders, 18 Ga. App. 766, 90 S.E. 655 (1916); Ocilla S.R.R. v. McAllister, 20 Ga. App. 400, 93 S.E. 26 (1917); Davis v. Seigel, 28 Ga. App. 418, 111 S.E. 439 (1922); Griffler v. Southern Ry., 30 Ga. App. 20, 116 S.E. 655 (1923); Taylor v. Central of Ga. Ry., 31 Ga. App. 374, 121 S.E. 348 (1923); Atlantic Log & Export Co. v. Central of Ga. Ry., 42 Ga. App. 256, 155 S.E. 530 (1930); De Loach v. Southeastern Greyhound Lines, 49 Ga. App. 662, 176 S.E. 518 (1934); Harrison v. Neel Gap Bus Line, 51 Ga. App. 120, 179 S.E. 871 (1935); Kwilecki v. Young, 180 Ga. 602, 180 S.E. 137 (1935); Powell v. First Nat'l Bank, 58 Ga. App. 648, 199 S.E. 668 (1938); Georgia Power Co. v. Blum, 80 Ga. App. 618, 57 S.E.2d 18 (1949); Ledger-Enquirer Co. v. Brown, 213 Ga. 538, 100 S.E.2d 166 (1957); Gurley v. Hardwick, 98 Ga. App. 334, 106 S.E.2d 53 (1958); Studdard v. Evans, 108 Ga. App. 819, 135 S.E.2d 60 (1964); Southern Ry. v. Pruitt, 121 Ga. App. 530, 174 S.E.2d 249 (1970); Fowler v. Aetna Cas. & Sur. Co., 159 Ga. App. 190, 283 S.E.2d 69 (1981).

Definitions

"Injury to property" defined.

- The expression "injury to property" is used, in its broad and general sense, and is broad enough to comprehend a wrongful conversion of property. Crawford v. Crawford, 134 Ga. 114, 67 S.E. 673, 28 L.R.A. (n.s.) 353, 19 Ann. Cas. 932 (1910); Lamb v. Howard, 145 Ga. 847, 90 S.E. 63 (1916).

Constructor of plant not "electric company."

- A general contracting corporation, engaged in the construction of a tunnel, building a dam and power house, is not an "electric company" within the meaning of Ga. L. 1912, p. 66 (see O.C.G.A. § 46-1-2). Northern Contracting Co. v. Maddux, 144 Ga. 686, 87 S.E. 892 (1916).

What constitutes an agent of a railroad.

- For service upon a railroad corporation to be effectual by reason of service upon an agent, at the time of the service the person must be its agent. Pennington & Evans v. Douglas, A. & G. Ry., 6 Ga. App. 854, 65 S.E. 1084 (1909), later appeal, 10 Ga. App. 288, 73 S.E. 425 (1912).

Agent of state not agent of corporation under receivership.

- An agent of the state, under a receiver who has possession of the road in consequence of a seizure by the Governor for nonpayment of interest on bonds which the state has endorsed, is not the agent of the corporation. Cherry v. North & S.R.R., 59 Ga. 446 (1877).

Classification of electric companies within meaning of this section.

- The fact that electric membership corporations have by the law extended to them privileges and enjoy certain immunities not granted to other corporations does not of itself remove them from the category of electric companies within the definition contained in former Code 1933, § 94-1101 (see O.C.G.A § 46-1-2). Since the act creating such corporation empowers them to do nothing else but generate and transmit electric energy, and to perform functions incidental thereto, they must be classified as a species of electric companies within the meaning of that section. Lamar Elec. Membership Corp. v. Carroll, 89 Ga. App. 440, 79 S.E.2d 832 (1953).

Distinction between electric corporations within contemplation of this section.

- If the entire benefit of the sole enterprise upon which the electric membership corporation was empowered by its charter to enter inures to the general public and no profit or improvement of the economic condition or desires of its stockholders or members was contemplated, the corporation could not be said to be in business within the contemplation of former Code 1933, § 94-1101 (see O.C.G.A § 46-1-2), but a corporation whose stockholders, by whatever name they may be designated, derive from the transaction of the business a profit in money or improvement in their economic conditions, was engaged in business within the contemplation of the above mentioned section, and was subject to the jurisdiction of the courts, under the same rules of practice that other electric corporations are. Lamar Elec. Membership Corp. v. Carroll, 89 Ga. App. 440, 79 S.E.2d 832 (1953).

Statute of Limitations

Limitation of action.

- Former Civil Code 1910, § 2640 (see O.C.G.A § 46-1-2) had no application to an action brought by a railway company to recover the difference between the amount actually collected as freight and that which should have been collected under the rules of the commission; and such an action would not be barred if brought within four years from the accrual of the right of action. Central of Ga. Ry. v. Eatonton Lumber Co., 14 Ga. App. 302, 80 S.E. 725 (1914).

Statute of limitations tolled by suit in wrong county.

- An action brought in the wrong county, contrary to former Civil Code 1910, § 2798 (see O.C.G.A § 46-1-2), may be the basis of a renewed action, tolling the statute of limitations, as provided by former Civil Code 1910, § 4381 (see O.C.G.A § 46-1-2) § 9-2-61. Lamb v. Howard, 150 Ga. 12, 102 S.E. 436 (1920).

No right of renewal outside limitations period.

- Under former Code 1882, § 719 (see O.C.G.A § 46-1-2), bringing an action within 12 months was a condition precedent, and the right of renewal within six months after the dismissal of one action, though more than 12 months from the time the right of action accrued, did not exist under that section. Parmelee v. Savannah F. & W. Ry., 78 Ga. 239, 2 S.E. 686 (1886).

Pleading and Practice

Sufficiency of pleading in tort action against railroad.

- It has been held under former Code 1873, § 3406 (see O.C.G.A § 46-1-2) that a declaration against a railroad company showing upon its face that the company was duly chartered under the laws of this state, and complaining that it damaged the plaintiffs by constructing a railroad upon their land in the county in which the action was located, showed substantially, though not in accurate form, that the railroad of the company was wholly or partly in that county. East Ga. & F. R.R. v. King, 91 Ga. 519, 17 S.E. 939 (1893); Gilbert v. Georgia R.R. & Banking Co., 104 Ga. 412, 30 S.E. 673 (1898).

Sufficiency of pleading in contract action against railroad.

- In an action against a railroad company on a contract instituted in a county other than the one where its chief office of business is located, the pleadings should show that the contract was either made or was to be performed in the county where such action was brought. Corley & Dassett v. Georgia R.R. & Banking Co., 49 Ga. 626 (1873).

Jurisdictional defect is amendable.

- Failure to show jurisdiction, is an amendable defect in a petition, and unless such defect is challenged by demurrer (now motion to dismiss), and opportunity given to amend, a dismissal entered for another and different reason will not be upheld because of such omission. Burton v. Wadley S. Ry., 25 Ga. App. 599, 103 S.E. 881 (1920).

Relevance of allegations of willful conduct to recovery of exemplary damages.

- In an action for damages sustained on account of a violation of a rule of the commission, exemplary damages may be recovered, if it appears that the conduct of the company amounted to a willful violation of law under former Civil Code 1895, § 2197 (see O.C.G.A § 46-1-2); and therefore allegations of the petition which, if proved, would throw light on the question as to whether the conduct of the company was willful, should not be stricken as irrelevant and impertinent. Augusta Brokerage Co. v. Central of Ga. Ry., 121 Ga. 48, 48 S.E. 714 (1904).

Evidence must show injury occurred in county where action brought.

- In actions against railway and electric companies, it is essential, for the rendition of a valid judgment, that it be shown by evidence that the alleged injury occurred in the county in which the action was brought. Georgia Power Co. v. Woodall, 48 Ga. App. 85, 172 S.E. 76 (1933).

Mandamus by shipper.

- A railroad company owes to the public a duty to obey the reasonable tariff rates fixed by the commission, and a shipper, whose shipment has been rejected on the ground that one of the rates of the commission's schedule is, in the opinion of the carrier, too low, has such special interest in the observance by the railroad company of its duty to the public in this regard as that one may compel its performance by mandamus. Southern Ry. v. Atlanta Stove Works, 128 Ga. 207, 57 S.E. 429 (1907).

Election of assignee between action in tort or on contract.

- Under former Civil Code 1895, § 2334 (see O.C.G.A § 46-1-2), it has been held that where the assignee of a bill of lading has the option to sue the carrier either in tort or for a breach of the contract, and elects the former remedy, and the case is dismissed for want of jurisdiction, the election to proceed in tort does not prevent a subsequent action on the contract. Louisville & N.R.R. v. Pferdmenges, Preyer & Co., 8 Ga. App. 81, 68 S.E. 617 (1910).

Service of Process

Sufficiency of service on agent.

- Where an action was brought against a railroad company in the county where the injury complained of took place, and the sheriff returned that the sheriff had served a certain person as agent for defendant at the depot in that county, and a second original of the declaration and process also had been served upon the president of the company, such service was sufficient. Mitchell v. Southwestern R.R., 75 Ga. 398 (1885), overruled on other grounds, Woodley v. Coker, 119 Ga. 226, 46 S.E. 89 (1903).

Personal service upon a ticket-agent in charge of a ticket office of a railroad company, and selling tickets and handling passenger business for it is sufficient service. Seaboard Air-Line Ry. v. Browder, 144 Ga. 322, 87 S.E. 6 (1915).

Construction of provisions concerning service on domestic and foreign railroads.

- Former Code 1933, § 94-1101 (see O.C.G.A § 46-1-2) provided that if the carrier by rail had no agent in the county where the accident took place, then plaintiff may sue the company in that county and service may be perfected by the issuance of a second original to be served upon said company in the county of its principal office and place of business, if in this state, and if not, on any agent of such company, or suit may be brought in the county of the residence of such company. Atlanta-Asheville Motor Express v. Dooley, 78 Ga. App. 265, 50 S.E.2d 822 (1948).

Jurisdiction and Venue

1. In General

Defendant cannot waive jurisdiction where improper venue in action against railroad.

- Where former Code 1933, § 94-1101 (see O.C.G.A § 46-1-2), relating to venue of actions against railroad companies, was applicable, it was exclusive; an action brought elsewhere than was there provided, was void, and the defendant cannot waive the question of jurisdiction by pleading to the merits. Georgia, A., S. & C. Ry. v. Atlantic C.L.R.R., 88 Ga. App. 426, 76 S.E.2d 724 (1953), cert. denied, 350 U.S. 887, 76 S. Ct. 142, 100 L. Ed. 782 (1955).

Party not required to bring suit in county where injury occurred.

- For the purpose of determining the venue in a suit against a railroad, the language used in O.C.G.A. § 46-1-2 is permissive; thus, a party has the option of bringing suit in the county where an injury occurred, rather than being required to bring suit therein. Southern Ry. v. Lawson, 174 Ga. App. 101, 329 S.E.2d 288 (1985).

Venue of action for injuries by previous owner.

- Former Civil Code 1895, § 2334 (see O.C.G.A § 46-1-2) did not apply to an action brought against a railroad company having its principal office in this state, to recover upon the liability attaching to it as the purchaser or successor in title of another corporation or an individual, to whom the injuries alleged were primarily chargeable. White v. Atlanta, B. & A.R.R., 5 Ga. App. 308, 63 S.E. 234 (1908).

2. In Tort Actions

Venue provisions of construed.

- Former Code 1933, § 94-1101 (see O.C.G.A § 46-1-2) provided that where the railroad company has an agent in the county where the cause arose action shall be brought therein, but that where the company has no agent there, the person injured can sue the railroad where it has its principal place of business or in the county of its residence. Atlanta-Asheville Motor Express v. Dooley, 78 Ga. App. 265, 50 S.E.2d 822 (1948).

If there is an agent of the railroad company in the county where the cause of action arose, jurisdiction of the action in that county is mandatory, but it is elective with the person injured as to whether the person shall bring an action in the county where the cause of action originated or in the county where the company has its principal place of business or the county of its residence, where there is no agent of the defendant railroad company in the county where the cause originated. Atlanta-Asheville Motor Express v. Dooley, 78 Ga. App. 265, 50 S.E.2d 822 (1948).

Venue of action where absence of agent in county where tort occurred.

- Under former Civil Code 1895, § 2334 (see O.C.G.A § 46-1-2) an action against a railway company for a tort may be brought in the county of the residence of the company when it had no agent in the county where the cause of action arose. Georgia S. & F. Ry. v. Pearson, 120 Ga. 284, 47 S.E. 904 (1904); Southwestern R.R. v. Vellines, 14 Ga. App. 674, 82 S.E. 166 (1914).

Jurisdiction exclusive where agent has residence in county where cause of action originates.

- Since the sole jurisdictional fact is the place of the origin of the cause of action, and the statute has not superadded the further fact of the residence of an agent as one requisite to jurisdiction, it must be held that the scheme of the law is to make the jurisdiction exclusive in the county where the cause of action originates when there is such residence, but elective when there is not. United Motor Freight Term. Co. v. Driver, 74 Ga. App. 244, 39 S.E.2d 496 (1946).

Provisions jurisdictional in nature and cannot be waived.

- Provisions such that "railroad and electric companies shall be sued by anyone whose person or property has been injured . . . for the purpose of recovering damages for such injuries, in the county in which the cause of action originated . . ." are jurisdictional in their nature and cannot be waived. Southern Ry. v. Wooten, 110 Ga. App. 6, 137 S.E.2d 696 (1964).

Venue in tort actions against railroad or electric companies.

- Former Code 1933, § 94-1101 (see O.C.G.A § 46-1-2) provided that, as to tort actions against railroad or electric companies, action must be brought in the county where the damage or injury occurred. Georgia, A., S. & C. Ry. v. Atlantic C.L.R.R., 88 Ga. App. 426, 76 S.E.2d 724 (1953), cert. denied, 350 U.S. 887, 76 S. Ct. 142, 100 L. Ed. 782 (1955).

Wife and the estate cited no authority that the presence of the driver authorized suit against the owner/electric company in any county other than the county where the driver resided or where the accident occurred. Pullum v. Sewell, 257 Ga. App. 553, 571 S.E.2d 552 (2002).

Proper venue in county of residence of either tort-feasor.

- An action against a railroad and another as joint tort-feasors may be brought in the county of the residence of the individual tort-feasor; and, the fact that the individual tort-feasor is the servant of the railroad and the servant's negligence is the only negligence charged against the railroad, will not alter the rule. Southern Ry. v. Wooten, 110 Ga. App. 6, 137 S.E.2d 696 (1964).

Venue of joint and several action against company and another tort-feasor.

- A joint and several action can be brought against a railroad company and another tort-feasor, and as against the railroad company and its employee, a conductor or engineer, and the action can be brought in the county where the cause of action originated and service perfected by second original, and this is true even though neither defendant resides or has an agent in that county; the same principle is applicable to an action against a motor common carrier and the driver of its motor vehicle for a tort. Atlanta-Asheville Motor Express v. Dooley, 78 Ga. App. 265, 50 S.E.2d 822 (1948).

Futile action where court without jurisdiction due to improper venue.

- An action against a common carrier by rail for damages on account of an injury sustained by reason of the negligence of the railroad company in the operation of one of its trains would have to be brought in the county where the injury took place, if the company had an agent in that county; otherwise, the action would be futile, the court not having jurisdiction of the case and any judgment therein void. Modern Coach Corp. v. Faver, 87 Ga. App. 221, 73 S.E.2d 497 (1952).

Venue of action where continuous tort to passenger.

- The county in which the transportation and the alleged injuries commenced is not a wrong venue for an action by a passenger against a carrier who tortiously and continuously failed to provide for the plaintiff's comfort during a journey from a point in this state to a point in another state. Bryant v. Atlantic C. L. R.R., 19 Ga. App. 536, 91 S.E. 1047 (1917).

Former Civil Code 1910, § 2798 (see O.C.G.A § 46-1-2)was applicable in a case where a passenger brought an action in tort against a railroad company for negligence in carrying the passenger beyond the passenger's destination in a particular county and through that county into another state, where further damages result from the continued wrong; and where the railroad company had an agent in the county where the tort originated, the venue of an action for such injury was exclusively in that county. Southern Ry. v. Clark, 162 Ga. 616, 134 S.E. 605 (1926).

Venue of action for homicide.

- An action under former Code 1868, § 2920 (see O.C.G.A § 51-4-2) by a widow against a railroad company for the homicide of her husband may, under Ga. L. 1869, p. 14 (see O.C.G.A. § 46-1-2), be tried in the county where the killing was done, although such county was not that in which, by the charter, the principal place of business of the company was located. Georgia R.R. & Banking Co. v. Oaks, 52 Ga. 410 (1874).

No matter where the contract of employment by the company with the agent was made, the homicide being committed at the place where the agent was assigned to duty, and where the agent was serving the company at the time of the wrongful act, thus the cause of action originated at that place, and the superior court of that county had jurisdiction. Christian v. Columbus & R. Ry., 79 Ga. 460, 7 S.E. 216 (1887).

Venue of action for failure to build spur track.

- Where a common carrier neglected or refused to obey an order of the Railroad Commission (now Public Service Commission), requiring it to build a spur or side-track in a certain county, and action was brought by an individual to recover for damage, resulting therefrom, the venue of the action was not determined by former Civil Code 1895, § 2334 (see O.C.G.A § 46-1-2). English v. Central of Ga. Ry., 7 Ga. App. 263, 66 S.E. 969 (1910).

Action for false arrest of passenger.

- If, after the arrest of a person stealing a ride, the train stops at a station in another county, and the plaintiff was there delivered to an officer and imprisoned, and if the detention, failure to prosecute, or other act in such latter county gave rise to a cause of action, former Civil Code 1895, § 2334 (see O.C.G.A § 46-1-2) imperatively required that action should be there brought. Summers v. Southern Ry., 118 Ga. 174, 45 S.E. 27 (1903).

Action against initial carrier in county of destination.

- Where there is an interstate shipment of goods and they are damaged in transit, the superior court of the county of the destination of the shipment has jurisdiction of an action for damages therefor against the initial nonresident carrier. Adair v. Atlantic C.L.R.R., 21 Ga. App. 564, 94 S.E. 840, cert. denied, 21 Ga. App. 825 (1918).

3. In Contract Actions

Venue and jurisdiction involved in portion of statute concerning contract actions.

- Portion of former Code 1933, § 94-1101 (see O.C.G.A § 46-1-2) dealing with contract actions related, not to venue merely, but to the jurisdiction of the court over the subject matter involved. Georgia, A., S. & C. Ry. v. Atlantic C.L.R.R., 88 Ga. App. 426, 76 S.E.2d 724 (1953), cert. denied, 350 U.S. 887, 76 S. Ct. 142, 100 L. Ed. 782 (1955).

Construction of venue provisions relating to breach of contract actions against railroads.

- Under the provisions of former Code 1933, § 94-1101 (see O.C.G.A § 46-1-2), all actions against railroads for breach of contract must be brought in the county in which the contract in question was made or was to be performed; any judgment rendered in any county other than those so designated shall be utterly void, with the exception that, if the cause of action shall arise in a county in which the defendant railroad had no agent, the action may then be brought in the county of residence of the defendant. Georgia, A., S. & C. Ry. v. Atlantic C.L.R.R., 88 Ga. App. 426, 76 S.E.2d 724 (1953), cert. denied, 350 U.S. 887, 76 S. Ct. 142, 100 L. Ed. 782 (1955).

Proper venue in contract matter involving railroad corporation.

- If the sole responsibility of the obligor in a contract is to pay over a sum of money upon a certain contingency arising, then the venue of the action is properly laid at the home office of the railroad corporation which is liable for such sum, and a demand therefor must also be made at such home office, in the county of its residence. Georgia, A., S. & C. Ry. v. Atlantic C.L.R.R., 88 Ga. App. 426, 76 S.E.2d 724 (1953), cert. denied, 350 U.S. 887, 76 S. Ct. 142, 100 L. Ed. 782 (1955).

Election between counties by plaintiff to contract.

- Under former Civil Code 1895, § 2334 (see O.C.G.A § 46-1-2) railroad companies are suable, on causes of action arising upon contracts, either in the county in which the contract is made, or in the county in which it is to be performed, at the option of the plaintiff. Central of Ga. Ry. v. Crapps, 4 Ga. App. 550, 61 S.E. 1126 (1908).

Judgment unauthorized where mandatory and exclusive venue criteria unmet.

- In an action on a contract against a defendant railroad in this state, the provisions of former Code 1933, § 94-1101 (see O.C.G.A § 46-1-2) relating to the county in which the action shall be laid are mandatory and exclusive, and refer to the jurisdiction of the court over the subject matter involved; accordingly, a judgment for the plaintiff in such action is unauthorized where it does not affirmatively appear (a) that the contract was entered into, or (b) the work was to be performed in the county in which the action was laid, or (c) that the defendant railroad has no agent upon whom service may be perfected in such counties. Georgia, A., S. & C. Ry. v. Atlantic C.L.R.R., 88 Ga. App. 426, 76 S.E.2d 724 (1953), cert. denied, 350 U.S. 887, 76 S. Ct. 142, 100 L. Ed. 782 (1955).

Judgment void where requirements of venue provisions unmet.

- Where it is neither alleged nor proved, in an action against a railroad company based on a contract, that the suit is brought in the county where the contract was made or to be performed, or if brought in the county of residence of the defendant, that there is no agent in such counties upon whom service may be perfected, the judgment in such action is utterly void. Georgia, A., S. & C. Ry. v. Atlantic C.L.R.R., 88 Ga. App. 426, 76 S.E.2d 724 (1953), cert. denied, 350 U.S. 887, 76 S. Ct. 142, 100 L. Ed. 782 (1955).

4. Actions Against Foreign Corporations

Applicability to foreign corporations.

- Former Civil Code 1895, § 2334 (see O.C.G.A § 46-1-2) fixing the venue of actions against railroad companies, applied to foreign as well as domestic corporations. Mitchell v. Southern Ry., 118 Ga. 845, 45 S.E. 703 (1903); Bracewell v. Southern Ry., 134 Ga. 537, 68 S.E. 98 (1910).

Venue in action against foreign corporation having no residence in this state.

- A foreign corporation not operating under a domestic franchise, has no residence in this state, and the action, if brought in this state, must be brought in the county in which the cause of action originated, whether the defendant has an agent in that county or not. Coakley v. Southern Ry., 120 Ga. 960, 48 S.E. 372 (1904).

Required procedure where foreign railroad companies involved in actions.

- While foreign railroad companies are subject to action by attachment or in personam for any cause of action arising in Georgia and the plaintiff may proceed by attachment and secure a lien on property of said company located in Georgia, the attachment must be returned to and the case tried in a court having jurisdiction of the attachment in the county designated by the provisions of former Code 1933, § 94-1101 (see O.C.G.A § 46-1-2), for the trial of such case. Grand Trunk W.R.R. v. Barge, 75 Ga. App. 646, 44 S.E.2d 281 (1947).

Proper procedure and venue where attachment against nonresident company.

- Under a proper construction of former Code 1933, § 8-117 and former Code 1933, § 94-1101 (see O.C.G.A § 46-1-2), where an attachment was issued against a nonresident railway company, which was not operating under a domestic franchise and which did not maintain an office, agent or place of business within Georgia, based on a cause of action brought for the purpose of recovering damages for personal injuries sustained by the plaintiff in one of the counties of Georgia by reason of the alleged negligence of such railway company, the attachment must be returned to and tried in the county in which the cause of action originated by a court having jurisdiction of said action. Grand Trunk W.R.R. v. Barge, 75 Ga. App. 646, 44 S.E.2d 281 (1947).

Venue of actions involving foreign motor common carriers.

- Foreign motor common carrier, engaged in the business of trucking, hauling and transporting freight over the various public highways within the state, and having designated a resident agent upon whom service of process can be made, under the clear mandate of former Code 1933, § 68-619 was, so far as the right to sue was concerned, a resident of this state, and a resident of the county in which the cause of action originated, so far as the right to bring an action against it for a cause of action originating in that county was concerned. Southeastern Truck Lines v. Rann, 214 Ga. 813, 108 S.E.2d 561 (1959).

A motor common carrier may be a nonresident corporation, yet since it is engaged in doing business in this state, and has agents in the state for that purpose, it is a resident of this state and a resident of the county in which the cause of action originated, so far as the right to bring an action against it for a cause of action originating in that county is concerned, and, being a resident of that county for the purpose of action, a joint tort-feasor, notwithstanding that the person may reside in another county of this state, may be sued jointly with the motor common carrier in the county in which the cause of action originated. A.G. Boone Co. v. Owens, 51 Ga. App. 739, 181 S.E. 519 (1935).

Circumstances under which action brought in county where cause of action originated.

- If the company has no agent in the county in which the cause of action originated, the action may nevertheless be brought in that county, the court having power to perfect service upon the defendant by second original, and such ruling is not contrary to the provisions of the state Constitution that all civil cases, except those enumerated, shall be tried in the county where the defendant resides. Atlanta-Asheville Motor Express v. Dooley, 78 Ga. App. 265, 50 S.E.2d 822 (1948).

A foreign corporation operating in this state as a motor common carrier may be sued in the county where the cause of action originated, and service on one designated by the corporation for that purpose may be had by second original; it is not necessary, if such foreign corporation have an agent and a place of business in this state, that the action be brought in that county. Tennessee Coach Co. v. Snelling, 51 Ga. App. 432, 180 S.E. 741 (1935).

RESEARCH REFERENCES

Am. Jur. 2d.

- 19 Am. Jur. 2d, Corporations, §§ 2180, 2182-2184, 2192, 2194-2196, 2202, 2206. 65 Am. Jur. 2d, Railroads, §§ 281, 481. 77 Am. Jur. 2d, Venue, § 32.

C.J.S.

- 19 C.J.S., Corporations, §§ 717-718. 74 C.J.S., Railroads, § 67. 92 C.J.S., Venue, §§ 79, 80.

ALR.

- Appointment of receiver for railroad as affecting service of process on agent or employee in action against company, 9 A.L.R. 228.

Liability for personal injury to passenger in Pullman car, 41 A.L.R. 1397.

Liability of electric power or light company to patron for interruption, failure, or inadequacy of power, 4 A.L.R.3d 594.

Electric generating plant or transformer station as nuisance, 4 A.L.R.3d 902.

Forum non conveniens: circumstances justifying state court's refusal to take jurisdiction of federal employers' liability act proceeding, 60 A.L.R.3d 964.

46-1-3. Applicability of powers granted by title to other companies or entities regulated by commission.

Notwithstanding the placement of any provision of law within this title, the powers granted by provisions of one Code section shall be applicable to any other company or entity regulated by the commission, where applicable.

46-1-4. Applicability of title to carriers engaged in interstate commerce.

Unless otherwise provided by Georgia law and not preempted by federal law or unless provided or allowed by federal law, the provisions of this title relating to carriers engaged in the transportation of passengers or goods within this state shall not apply to carriers engaged in interstate commerce.

46-1-5. Duties of Department of Human Services with regard to assistance to low or fixed income consumers of gas and electric service.

By March 2, 1982, the Department of Human Resources (now known as the Department of Human Services) shall develop a program to identify those low or fixed income consumers of gas and electric utility service who, in the department's opinion, should benefit from public assistance in paying their bills for gas and electric service. The department shall also establish an efficient and economical method for distributing to such consumers all public assistance funds which will be made available, whether by appropriations of state or federal funds, grants, or otherwise. All gas and electric utilities shall cooperate fully with the department in developing and implementing its program. Nothing in this Code section shall limit the commission's authority to order regulatory alternatives which assist low or fixed income ratepayers.

(Ga. L. 1981, p. 121, § 8; Ga. L. 2009, p. 453, § 2-20/HB 228.)

The 2009 amendment, effective July 1, 2009, inserted "(now known as the Department of Human Services)" in the first sentence of this Code section.

Cross references.

- Public assistance generally, Ch. 4, T. 49.

CHAPTER 2 PUBLIC SERVICE COMMISSION

Article 1 Organization and Members.
Article 2 Jurisdiction, Powers, and Duties Generally.
Article 2A Utility Finance Section.
Article 3 Investigations and Hearings.
Article 4 Allocation of Gas and Electricity to Protect Public Health and Safety.
Article 5 Miscellaneous Offenses and Penalties.
Cross references.

- Generally, see Ga. Const. 1983, Art. IV, Sec. I, Para. I; Art. IV, Sec. VII, Para. I, II.

ARTICLE 1 ORGANIZATION AND MEMBERS

Administrative Rules and Regulations.

- Organization of administration of Commission, Official Compilation of Rules and Regulations of State of Georgia, Rules of Georgia Public Service Commission, Chapter 515-1-1.

46-2-1. Election of Commissioners; terms of office.

  1. The Georgia Public Service Commission shall consist of five members to be elected as provided in this Code section. The members in office on January 1, 2012, and any member appointed or elected to fill a vacancy in such membership prior to the expiration of a term of office shall continue to serve out their respective terms of office. As terms of office expire, new members elected to the commission shall be required to be residents of one of five Public Service Commission Districts as hereafter provided, but each member of the commission shall be elected state wide by the qualified voters of this state who are entitled to vote for members of the General Assembly. Except as otherwise provided in this Code section, the election shall be held under the same rules and regulations as apply to the election of Governor. The Commissioners, who shall give their entire time to the duties of their offices, shall be elected at the general election next preceding the expiration of the terms of office of the respective incumbents. Their terms of office shall be six years and shall expire on December 31.
  2. In order to be elected as a member of the commission from a Public Service Commission District, a person shall have resided in that district for at least 12 months prior to election thereto. A person elected as a member of the commission from a Public Service Commission District by the voters of Georgia shall continue to reside in that district during the person's term of office, or that office shall thereupon become vacant.

(c) For the purpose of electing the members of the Public Service Commission, this state shall be divided into five Public Service Commission Districts described as follows:

District 001 Appling County Atkinson County Bacon County Baker County Ben Hill County Berrien County Brantley County Brooks County Bryan County Bulloch County Calhoun County Camden County Candler County Charlton County Chatham County Chattahoochee County Clay County Clinch County Coffee County Colquitt County Cook County Crisp County Decatur County Dodge County Dooly County Dougherty County Early County Echols County Effingham County Evans County Glynn County Grady County Irwin County Jeff Davis County Lanier County Lee County Liberty County Long County Lowndes County Macon County Marion County McIntosh County Miller County Mitchell County Montgomery County Muscogee County Pierce County Pulaski County Quitman County Randolph County Schley County Seminole County Stewart County Sumter County Tattnall County Telfair County Terrell County Thomas County Tift County Toombs County Turner County Ware County Wayne County Webster County Wheeler County Wilcox County Worth County District 002 Baldwin County Barrow County Bibb County Bleckley County Burke County Clarke County Emanuel County Glascock County Greene County Gwinnett County Hancock County Houston County Jackson County Jasper County Jefferson County Jenkins County Johnson County Jones County Laurens County Morgan County Newton County Oconee County Putnam County Screven County Treutlen County Twiggs County Walton County Washington County Wilkinson County District 003 Clayton County DeKalb County Fulton County Rockdale County District 004 Banks County Bartow County Catoosa County Chattooga County Cherokee County Columbia County Dade County Dawson County Elbert County Fannin County Floyd County Forsyth County Franklin County Gilmer County Gordon County Habersham County Hall County Hart County Lincoln County Lumpkin County Madison County McDuffie County Murray County Oglethorpe County Pickens County Rabun County Richmond County Stephens County Taliaferro County Towns County Union County Walker County Warren County White County Whitfield County Wilkes County District 005 Butts County Carroll County Cobb County Coweta County Crawford County Douglas County Fayette County Haralson County Harris County Heard County Henry County Lamar County Meriwether County Monroe County Paulding County Peach County Pike County Polk County Spalding County Talbot County Taylor County Troup County Upson County

The first members of the commission elected under this Code section shall be elected thereto on the Tuesday next following the first Monday in November, 2012, from Public Service Commission Districts 3 and 5, shall take office on the first day of January immediately following that election, and shall serve for terms of office of six years and until the election and qualification of their respective successors. Those members of the commission elected thereto on the Tuesday next following the first Monday in November, 2014, from Public Service Commission Districts 1 and 4 shall take office on the first day of January immediately following that election and shall serve for terms of office of six years and until the election and qualification of their respective successors. The member of the commission elected thereto on the Tuesday next following the first Monday in November, 2016, from Public Service Commission District 2 shall take office on the first day of January immediately following that election and shall serve for a term of office of six years and until the election and qualification of his or her respective successor. All future successors to members of the commission whose terms of office are to expire shall be elected at the state-wide general election immediately preceding the expiration of such terms, shall take office on the first day of January immediately following that election, and shall serve for terms of office of six years.

(Ga. L. 1878-79, p. 125, § 1; Code 1882, § 719a; Civil Code 1895, § 2185; Ga. L. 1906, p. 100, §§ 1-3; Ga. L. 1907, p. 72, § 1; Civil Code 1910, §§ 2615, 2616; Ga. L. 1922, p. 143, § 1; Code 1933, § 93-201; Ga. L. 1998, p. 1530, §§ 1, 2; Ga. L. 2002, p. 359, §§ 1, 2; Ga. L. 2012, p. 642, § 1/SB 382.)

The 2002 amendment, effective April 11, 2002, rewrote the descriptions of Public Service Commission Districts 1 through 5 following the colon at the end of the introductory language in subsection (c) and added subsection (e).

The 2012 amendment, effective May 1, 2012, in subsection (a), substituted "January 1, 2012" for "January 1, 2000"; in subsection (b), twice substituted "shall" for "must" in the first and second sentences and added a comma following "office" in the second sentence; in the introductory paragraph of subsection (c), substituted "this state " for "the state" and rewrote the descriptions of the Public Service Commission Districts 1 through 5; in subsection (d), substituted "November, 2012" for "November, 2000" in the first sentence, substituted "November, 2014" for "November, 2002" in the second sentence, and substituted "November, 2016" for "November, 2004" in the third sentence; and deleted former subsection (e), relating to definitions and conditions.

JUDICIAL DECISIONS

Beginning of term of commissioner fixed by statute. Bennett v. Public Serv. Comm'n, 160 Ga. 189, 127 S.E. 612 (1925).

New office not created.

- Georgia Laws 1906, p. 100 creates no new office, but simply provides a new way of filling an office already existing. With respect to their functions, duties, powers, etc., including the liability to removal from office and the method of effecting the same, the officers elected would be subject to the provisions of law existing at the time the method of selection to office was changed. Gray v. McLendon, 134 Ga. 224, 67 S.E. 859 (1910).

Office of Public Service Commissioner is statutory office, and the power of the legislature is absolute with respect to all offices that it creates, where no constitutional restriction is placed upon its power. Felton v. Huiet, 178 Ga. 311, 173 S.E. 660 (1933).

Residency requirement upheld.

- Requiring appellee candidate to reside in the district for 12 months prior to the general election did not deny the candidate equal protection under the United States Constitution or the Georgia Constitution as the residency requirement for election to the Georgia Public Service Commission was rationally related to the state's legitimate interests in fostering informed voters and promoting knowledgeable and responsive candidates with ties to the community, and did not place an unreasonable burden on the right of voters to choose a candidate or the right of the candidate to run for public office. Cox v. Barber, 275 Ga. 415, 568 S.E.2d 478 (2002), cert. denied, 537 U.S. 1109, 123 S. Ct. 851, 154 L. Ed. 2d 780 (2003).

Residency requirement met.

- In a case involving the residency requirements of O.C.G.A. §§ 21-2-217(a) and46-2-1(b), the trial court properly granted a Commissioner's motion for summary judgment because the evidence established the Commissioner's residence in District Two at least 12 months prior to the Commissioner's election to the Public Service Commission; pursuant to O.C.G.A. § 19-2-3, the domicile of the Commissioner's spouse in another district was not presumed to be the Commissioner's domicile. Dozier v. Baker, 283 Ga. 543, 661 S.E.2d 543 (2008).

Although a candidate for membership in the commission from a Georgia Public Service Commission district owned property outside the district on which the candidate held a homestead exemption until a month before the Georgia Secretary of State filed a challenge under O.C.G.A. § 21-2-5, the candidate was a resident of the district for purposes of O.C.G.A. § 46-2-1(b). The candidate spent most of the candidate's time in the district, was registered to vote there, paid taxes there, and registered automobiles there. Handel v. Powell, 284 Ga. 550, 670 S.E.2d 62 (2008).

Candidate improperly deemed ineligible.

- In ruling a candidate was not qualified to be elected as a member of the commission from a Georgia Public Service Commission district because the candidate did not meet O.C.G.A. § 46-2-1(b)'s residency requirements, the Georgia Secretary of State erred in considering only the homestead exemption rule, O.C.G.A. § 21-2-217(a)(14), and ignoring the other applicable portions of § 21-2-217(a) to determine the candidate's residency. Handel v. Powell, 284 Ga. 550, 670 S.E.2d 62 (2008).

Nature of actions against Commission.

- Mere fact that Public Service Commission is constitutional body does not make action against it one against the state. Georgia Pub. Serv. Comm'n v. Atlanta Gas Light Co., 205 Ga. 863, 55 S.E.2d 618 (1949).

Cited in Southern Ice & Coal Co. v. Atlantic Ice & Coal Corp., 143 Ga. 810, 85 S.E. 1021 (1915); Gas Light Co. v. Georgia Power Co., 313 F. Supp. 860 (M.D. Ga. 1970).

OPINIONS OF THE ATTORNEY GENERAL

Commissioners elected in same manner as Governor.

- Under the terms of former Code 1933, § 93-201 (see O.C.G.A § 46-2-1) and Ga. Const. 1976, Art. IV, Sec. I, Para. I (Ga. Const. 1983, Art. IV, Sec. I, Para. I; Art. IV, Sec. VII, Para. I, II), members of the Public Service Commission should be elected in the same manner as the Governor, as provided in former Ga. Const. 1976, Art. V, Sec. I, Para. III. 1948-49 Op. Att'y Gen. p. 161.

Georgia Public Service commissioner may not serve simultaneously as member of governing authority of a county. 1978 Op. Att'y Gen. No. 78-32.

RESEARCH REFERENCES

20C Am. Jur. Pleading and Practice Forms, Public Utilities, § 6.

46-2-2. Qualifications of Commissioners; restriction on any interest in companies under jurisdiction of commission; disqualification of Commissioner.

  1. Any person who is at least 30 years of age, is qualified to vote as an elector, and is not directly or indirectly interested in any mercantile business or any corporation that is controlled by or that participates in the benefit of any pool, combination, trust, contract, or arrangement that has the effect of increasing or tending to increase the cost to the public of carriage, heat, light, power, or any commodity or merchandise sold to the public shall be eligible for membership on the commission, without regard to his experience in law or in the utility or transportation business.
  2. During their terms of office, the Commissioners shall not, jointly or severally, or in any way, be the holders of any stock or bonds, or be agents or employees of any company, or have any interest in any company under the jurisdiction of the commission. If any Commissioner becomes disqualified in any way, he shall at once remove the disqualification or resign; and on failure to do so he shall be suspended from office by the Governor.

(Ga. L. 1878-79, p. 125, § 1; Code 1882, § 719a; Civil Code 1895, § 2185; Ga. L. 1907, p. 72, § 2; Civil Code 1910, § 2620; Code 1933, § 93-202.)

Cross references.

- Conflicts of interest of state officials and employees generally, § 45-10-20 et seq.

JUDICIAL DECISIONS

Suspension by Governor.

- Under former Code 1933, § 93-202 (see O.C.G.A § 46-2-2) Governor may suspend commissioner for any satisfactory cause. Felton v. Huiet, 178 Ga. 311, 173 S.E. 660 (1933).

Suspension from office is not deprivation of property.

- Public office is public trust or agency and is not property of incumbent thereof, and, when incumbent is suspended from such office, incumbent is not deprived of any property. Felton v. Huiet, 178 Ga. 311, 173 S.E. 660 (1933).

Cited in Gas Light Co. v. Georgia Power Co., 313 F. Supp. 860 (M.D. Ga. 1970).

OPINIONS OF THE ATTORNEY GENERAL

Limitation on applicability of section.

- Application of former Code 1933, § 93-202 (see O.C.G.A § 46-2-2) was limited to five commissioners comprising Public Service Commission. 1963-65 Op. Att'y Gen. p. 536.

RESEARCH REFERENCES

C.J.S.

- 73B C.J.S., Public Utilities, §§ 25, 64.

46-2-3. Oath of office of Commissioners.

The Commissioners shall take an oath of office, the wording of which shall be determined by the Governor.

(Ga. L. 1878-79, p. 125, § 1; Code 1882, § 719a; Civil Code 1895, § 2185; Civil Code 1910, § 2619; Code 1933, § 93-203.)

JUDICIAL DECISIONS

Cited in Gas Light Co. v. Georgia Power Co., 313 F. Supp. 860 (M.D. Ga. 1970).

RESEARCH REFERENCES

ALR.

- Public utilities: validity of preferential rates for elderly or low-income persons, 29 A.L.R.4th 615.

46-2-4. Filling of vacancies on commission.

Any vacancy in the commission shall be filled by the Governor. Any person so appointed shall hold his office until the next regular general election and until his successor for the balance of the unexpired term has been elected and has qualified.

(Ga. L. 1906, p. 100, § 4; Civil Code 1910, § 2617; Code 1933, § 93-204.)

JUDICIAL DECISIONS

Cited in Gas Light Co. v. Georgia Power Co., 313 F. Supp. 860 (M.D. Ga. 1970).

46-2-5. Chairperson of commission; selection.

  1. There shall be a chairperson of the commission. The chairperson shall be selected by a simple majority of the members of the commission. The chairperson serving on December 31, 2012, shall serve for a term of office as chairperson until January 1, 2013, or until his or her term as a member of the commission shall expire, whichever is shorter. Each subsequent chairperson shall serve for a two-year term of office as chairperson or until his or her term as a member of the commission shall expire, whichever is shorter. Any four members of the commission may call for an election of a chairperson at any time prior to the end of the term of a chairperson; provided, however, that such elections shall not be held more than twice per calendar year, except in the case of a vacancy by the chairperson; and provided, further, that any chairperson so elected shall serve for a two-year term of office as chairperson or until his or her term as a member of the commission shall expire, whichever is shorter. No commissioner shall be elected or serve as chairperson for more than two consecutive terms.
  2. The chairperson shall give his or her entire time to the duties of the office.

(Ga. L. 1907, p. 72, § 3; Civil Code 1910, § 2622; Ga. L. 1919, p. 92, § 2; Ga. L. 1922, p. 143, § 7; Code 1933, § 93-206; Ga. L. 1947, p. 673, § 1; Ga. L. 1953, Jan.-Feb. Sess., p. 613, §§ 1-5; Ga. L. 1960, p. 57, §§ 1, 2; Ga. L. 1963, p. 651, § 1; Ga. L. 1967, p. 95, § 1; Ga. L. 1992, p. 2335, § 1; Ga. L. 2012, p. 1176, § 1/SB 483.)

The 2012 amendment, effective December 31, 2012, rewrote subsection (a); deleted former subsections (b) and (c); redesignated former subsection (d) as present subsection (b); and rewrote subsection (b).

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1992, "April 20, 1992," was substituted for "this Code section becomes effective" in the third sentence of subsection (a).

Pursuant to Code Section 28-9-5, in 2012, "serving on December 31, 2012," was substituted for "currently serving on the effective date of this Code section" in the second sentence of subsection (a).

JUDICIAL DECISIONS

Cited in Gas Light Co. v. Georgia Power Co., 313 F. Supp. 860 (M.D. Ga. 1970).

OPINIONS OF THE ATTORNEY GENERAL

Deferring of service as chairman.

- A member of the Public Service Commission who defers serving as chairman will resume the member's place, in the following year, at the head of the order rather than behind the other otherwise eligible commissioners. 1999 Op. Att'y Gen. No. 99-1.

O.C.G.A. § 46-2-5 is constitutional; the Georgia Public Service Commission does not have the authority to declare the statute unconstitutional; the Commission is not free to disregard the statute; the Commission may not select a chairman for a two-year term; and a chairman whose term commences on July 1, 2009, may serve beyond January 16, 2010, only if there are no other commissioners eligible to serve as chairman under O.C.G.A. § 46-2-5(b)(2). 2009 Op. Att'y Gen. No. 2009-4.

RESEARCH REFERENCES

C.J.S.

- 73B C.J.S., Public Utilities, § 63.

46-2-6. Salary of Commissioners.

The salary of each Commissioner shall be as provided in Code Section 45-7-4, provided that nothing in this Code section or in Code Section 46-2-5 shall entitle an emeritus commissioner to a salary greater than $12,000.00 per annum.

(Ga. L. 1878-79, p. 125, § 1; Code 1882, § 719a; Civil Code 1895, § 2185; Ga. L. 1907, p. 72, § 15; Civil Code 1910, §§ 2621, 2670; Ga. L. 1919, p. 92, §§ 1, 2; Ga. L. 1919, p. 94, § 1; Ga. L. 1922, p. 143, § 7; Ga. L. 1931, p. 7, § 99; Code 1933, § 93-208; Ga. L. 1947, p. 673, § 1; Ga. L. 1951, p. 668, § 1; Ga. L. 1953, Jan.-Feb. Sess., p. 613, §§ 1-5; Ga. L. 1960, p. 57, §§ 1, 2; Ga. L. 1963, p. 651, § 1; Ga. L. 1967, p. 95, § 2.)

JUDICIAL DECISIONS

Cited in Atlanta Term. Co. v. Georgia Pub. Serv. Comm'n, 163 Ga. 897, 137 S.E. 556 (1927); Gas Light Co. v. Georgia Power Co., 313 F. Supp. 860 (M.D. Ga. 1970).

RESEARCH REFERENCES

C.J.S.

- 73B C.J.S., Public Utilities, § 63.

46-2-7. Employment of officers, experts, and other employees by commission; compensation of employees.

The commission shall have power to employ such officers, experts, engineers, statisticians, accountants, inspectors, clerks, and other employees as it may deem necessary to perform the duties and exercise the powers conferred by law upon the commission. The compensation of such employees shall be fixed by the commission at such sums as it may deem reasonable and proper.

(Ga. L. 1907, p. 72, § 4; Civil Code 1910, § 2623; Ga. L. 1922, p. 143, § 2; Code 1933, § 93-207.)

Cross references.

- Applicability of conflicts of interest laws to full-time state employees hired by commission to assist commission in fulfilling duties and responsibilities, § 45-10-20.

JUDICIAL DECISIONS

Cited in Gas Light Co. v. Georgia Power Co., 313 F. Supp. 860 (M.D. Ga. 1970).

OPINIONS OF THE ATTORNEY GENERAL

Power to hire and terminate employees.

- Pursuant to former Code 1933, § 93-207 (see O.C.G.A § 46-2-7), and subject to the provisions of the law creating the State Merit System of Personnel Administration (see O.C.G.A. Ch. 20, T. 45) only the Public Service Commission, acting as a constitutional entity, or persons to whom it delegates its authority, has the authority to hire personnel, and to terminate the employment of the personnel which it hires. 1979 Op. Att'y Gen. No. 79-61.

Types of employees protected by merit system.

- Provisions dealing with personnel administration (see O.C.G.A. Ch. 20, T. 45) modifies former Code 1933, § 93-207 (see O.C.G.A § 46-2-7) to the extent that the commission's officers, experts, engineers, statisticians, accountants, inspectors, clerks and other employees who fall within the ambit of the merit system do not serve at the pleasure of the commission, but rather must be hired by the commission and terminated by the commission in accordance with the laws affecting and the rules and regulations promulgated by the State Personnel Board. 1979 Op. Att'y Gen. No. 79-61.

Termination of confidential, individually assigned secretary.

- Public Service Commission has authority to terminate employment of confidential secretary assigned to individual commissioner. 1979 Op. Att'y Gen. No. 79-61.

RESEARCH REFERENCES

C.J.S.

- 73B C.J.S., Public Utilities, § 63.

46-2-7.1. Director of utilities.

  1. On or before July 1, 1981, the commission shall employ a director of utilities, who shall serve at the pleasure of the commission and whose salary shall be set by the commission.
  2. The director of utilities shall:
    1. Direct the activities of the utility divisions and sections;
    2. Manage and coordinate the commission's preparation of rate cases;
    3. Schedule and coordinate all in-house, reactive, regular, and engineering audits;
    4. Direct all utility personnel and the preparation of that section of the commission's budget; and
    5. Perform such other duties as the commission may establish by order.

(Code 1933, § 93-207.1, enacted by Ga. L. 1981, p. 121, § 3.)

OPINIONS OF THE ATTORNEY GENERAL

Position is unclassified.

- The Georgia Public Service Commission positions of the director of utilities, the public information officer and the director and assistant director of the Utility Finance Section are, as a matter of law, unclassified positions. 1981 Op. Att'y Gen. No. 81-39.

46-2-7.2. Public information officer.

  1. On or before September 1, 1981, the commission shall employ a public information officer, who shall serve at the pleasure of the commission.
  2. The public information officer shall:
    1. Report directly to the executive secretary;
    2. Maintain the commission's public information files;
    3. Coordinate official commission press releases and media relations; and
    4. Perform such other duties as the executive secretary may establish.

(Code 1933, § 93-207.2, enacted by Ga. L. 1981, p. 121, § 3.)

OPINIONS OF THE ATTORNEY GENERAL

Position created is unclassified.

- The Georgia Public Service Commission positions of the director of utilities, the public information officer and the director and assistant director of the Utility Finance Section are, as a matter of law, unclassified positions. 1981 Op. Att'y Gen. No. 81-39.

46-2-8. Payment of salaries and expenses by commission; appropriations for salaries and expenses; designation of Public Service Commission Fund.

The salaries fixed by the commission for its officers, experts, engineers, statisticians, accountants, inspectors, clerks, and other employees, and fixed by Code Section 45-7-4 for Commissioners, shall be paid monthly from the funds provided for the use of the commission after being approved by the commission. All expenses incurred by the commission, including the actual and necessary traveling and other expenses and disbursements of the Commissioners, and of officers and employees, incurred while on business of the commission, shall be paid from the funds provided for the use of the commission after being approved by the commission. The necessary expenses of conducting the business of the commission and the salaries of the Commissioners shall be provided for by appropriations made for such purposes. The funds assessed and collected as provided in Code Section 46-2-10 shall be specially designated as the Public Service Commission Fund and shall be expended only as provided and directed in this title.

(Ga. L. 1922, p. 143, § 7; Ga. L. 1931, p. 7, § 99; Code 1933, § 93-209; Ga. L. 1953, Jan.-Feb. Sess., p. 613, §§ 1-5; Ga. L. 1960, p. 57, § 2.)

RESEARCH REFERENCES

C.J.S.

- 73B C.J.S., Public Utilities, § 63.

46-2-9. Domicile of commission; jurisdiction of actions involving commission or business entities regulated by commission; furnishing commission with office and supplies.

  1. The domicile of the commission is fixed at the capital; and no courts of this state other than those of Fulton County shall have or take jurisdiction in any action brought or instituted against the commission or on account of any of its orders or rules, provided that nothing in this Code section shall prevent the courts of the county in which is located the principal office of a business entity regulated by the commission from having or taking jurisdiction in any action brought or instituted against that business entity as a result of any such commission order or rule.
  2. The commission shall be furnished with necessary furniture and stationery and an office in Atlanta.

(Ga. L. 1878-79, p. 125, § 2; Civil Code 1895, § 2186; Ga. L. 1905, p. 95, §§ 1, 2; Ga. L. 1907, p. 72, § 14; Civil Code 1910, §§ 2625, 2627; Code 1933, § 93-211; Ga. L. 1976, p. 418, § 1.)

JUDICIAL DECISIONS

Court review of commission orders and rules.

- Former Code 1933, § 93-211 (see O.C.G.A § 46-2-9) within itself did not give consent of the state to be sued. However, that section did indicate a construction of the powers and duties conferred by the General Assembly on the commission, and that the commission is subject to having its orders and rules reviewed by the courts. Georgia Pub. Serv. Comm'n v. Atlanta Gas Light Co., 205 Ga. 863, 55 S.E.2d 618 (1949).

Former Code 1933, § 93-211 (see O.C.G.A § 46-2-9) recognizes right to judicial review of administrative orders, and must be construed as conferring that sort of right which furnishes the adequate and available remedy which meets the requirements of the Constitution. Georgia Pub. Serv. Comm'n v. Atlanta Gas Light Co., 205 Ga. 863, 55 S.E.2d 618 (1949).

Jurisdiction of class action against commission vested in courts of Fulton County.

- Former Code 1933, § 93-211 (see O.C.G.A § 46-2-9) required that, in a class action brought against a utility to enjoin it from collecting new rates on electricity and to recover moneys already collected under a rate increase ordered by the Public Service Commission, no courts of the state other than those of Fulton County shall have jurisdiction. Riley v. Savannah Elec. & Power Co., 236 Ga. 802, 225 S.E.2d 301 (1976).

46-2-10. Payment of special fee by corporations and utilities subject to jurisdiction of commission; notice of amount due; procedure on default.

  1. There shall be paid by all public service corporations and utilities which are subject to the jurisdiction of the Public Service Commission a special fee in addition to all other fees required by law. Such fee shall be fixed by the state revenue commissioner upon each of such public service corporations or utilities according to the gross revenues of each such public service corporation or utility resulting from intrastate service regulated by the commission, as ascertained by the state revenue commissioner from reports filed with the state revenue commissioner by such public service corporations and utilities and from gross revenues reported for income tax purposes pursuant to Chapter 7 of Title 48, and shall be apportioned among such public service corporations or utilities upon the basis of such gross revenues so as to produce a revenue of $1,050,000.00 per annum.Notwithstanding any other provisions of this Code section, the gross revenues of a telephone utility shall not include revenues of such a utility received from the collection of interstate tolls, interstate access or subscriber line charges, interstate call charges, amounts paid by a telecommunications service provider to any other telecommunications service provider for carrier access charges, or any charges for any unregulated services. Any revenues collected by a local exchange company as a billing and collection agent shall be excluded from the calculation of the gross revenues of the local exchange company.
    1. Not later than December 1, 1994, the state revenue commissioner shall notify each public service corporation or utility of the state of the amount due by it under this Code section, and the fee shall be paid into the general fund of the state by January 20, 1995.Such sum of $1,050,000.00 shall be available for appropriation in an amount sufficient to cover the cost of operating the Public Service Commission.
    2. Effective January 1, 1995, not later than April 1 of each year, the state revenue commissioner shall notify each public service corporation or utility of the state of the amount due by it under this Code section, and the fee shall be paid into the general fund of the state by July 1 of such year. Such sum of $1,050,000.00 shall be available for appropriation in an amount sufficient to cover the cost of operating the Public Service Commission.
  2. In case of default in payment by any public service corporation or utility of the fee provided for in this Code section, the state revenue commissioner shall proceed to collect the same in the same manner as franchise taxes are collected.

(Ga. L. 1922, p. 143, § 6; Ga. L. 1931, p. 7, § 99; Code 1933, § 93-210; Ga. L. 1960, p. 168, § 1; Ga. L. 1973, p. 664, § 1; Ga. L. 1982, p. 1063, §§ 1, 2; Ga. L. 1988, p. 263, § 1; Ga. L. 1990, p. 856, § 1; Ga. L. 1994, p. 630, § 1.)

RESEARCH REFERENCES

C.J.S.

- 73B C.J.S., Public Utilities, § 65.

ALR.

- Right of public service corporation to judicial relief from contract rates which have become inadequate, 6 A.L.R. 1659; 10 A.L.R. 1335.

Constitutionality and construction of statute imposing upon public service corporation expense of investigation of its affairs, 101 A.L.R. 197.

ARTICLE 2 JURISDICTION, POWERS, AND DUTIES GENERALLY

Administrative Rules and Regulations.

- Organization of Commission, Official Compilation of Rules and Regulations of State of Georgia, Rules of Georgia Public Service Commission, Chapter 515-1-1.

46-2-20. Jurisdiction of commission generally; powers and duties of commission generally.

  1. Except as otherwise provided by law, the commission shall have the general supervision of all common carriers, express companies, railroad or street railroad companies, dock or wharfage companies, terminal or terminal station companies, telephone companies, gas or electric light and power companies, and persons or private companies who operate rapid rail passenger service lines within this state; provided, however, that nothing in this subsection shall be deemed to extend the jurisdiction of the commission to include the operations of the Metropolitan Atlanta Rapid Transit Authority created in an Act approved March 10, 1965 (Ga. L. 1965, p. 2243), as amended.
  2. The commission may hear complaints; in addition, it is also authorized to perform the duties imposed upon it of its own initiative.
  3. The commission may, either by general rules or by special orders in particular cases, require all companies under its supervision to establish and maintain such public services and facilities as may be reasonable and just.
  4. The commission may require common carriers and persons or private companies who operate rapid rail passenger service lines to publish their schedules in newspapers of towns through which their lines extend, in such manner as may be reasonable and as the public convenience demands.
  5. The commission shall have authority to examine the affairs of all companies under its supervision and to keep informed as to their general condition, their capitalization, their franchises, and the manner in which the lines owned, leased, or controlled by them are managed, conducted, and operated, not only with respect to the adequacy, security, and accommodation afforded by their service to the public and their employees but also with reference to their compliance with all laws, orders of the commission, and charter requirements.
  6. The commission shall have the power and authority, whenever it deems advisable, to prescribe, establish, and order a uniform system of accounts to be used by railroads and other companies over which it has jurisdiction, the same to be, as far as practicable, in conformity with the system of accounts prescribed by the Interstate Commerce Commission. The commission shall also have the power and authority to examine all books, contracts, records, papers, and documents of any person subject to its supervision and to compel the production thereof.
  7. The commission shall have the power, through any of its members, at its discretion, to make personal visits to the offices and places of business of the companies under its supervision for the purpose of examination. Any Commissioner making a personal visit pursuant to this subsection shall have full power and authority to examine the agents and employees of any such company, under oath or otherwise, in order to procure information deemed by the Commissioner necessary to the work of the commission or of value to the public.
  8. Nothing in this Code section shall be so construed as to repeal or abrogate any existing law or rule of the commission as to notice or hearings to be accorded to any person interested in the rates fixed by, or in the orders, rules, or regulations promulgated by, the commission before the same are issued. Neither shall anything in this Code section repeal the law of this state as to notice by publication of a change in rates.
  9. The commission shall have the power and authority to prescribe rules and regulations for the safe installation and safe operation of all natural gas transmission and distribution facilities within this state, including, without limitation, all natural gas transmission and distribution facilities which are owned and operated by municipalities within this state.
  10. Notwithstanding any other provision of law, the authority and jurisdiction of the commission shall not extend to persons or companies who are engaged in the retail sale of natural gas to the public for use as a fuel in motor vehicles and who are not otherwise subject to the authority and jurisdiction of the commission.

(Ga. L. 1907, p. 72, § 6; Civil Code 1910, § 2663; Ga. L. 1922, p. 143, §§ 3, 5; Code 1933, § 93-307; Ga. L. 1967, p. 650, § 1; Ga. L. 1989, p. 692, § 1; Ga. L. 1990, p. 856, § 2; Ga. L. 1992, p. 1647, § 1; Ga. L. 2012, p. 847, § 3/HB 1115.)

The 2012 amendment, effective July 1, 2012, deleted "and telegraph" following "telephone" near the middle of subsection (a).

Cross references.

- Authority of commission to promulgate safety rules and regulations for motor vehicles within its jurisdiction, § 40-8-2.

Authority of commission to contract with state agencies to use state employees, § 45-10-20.

Jurisdiction of commission with regard to projects of Municipal Electric Authority of Georgia, § 46-3-152.

Rapid Rail Passenger Service, Chapter 8A, Title 46.

Code Commission notes.

- Pursuant to Code section 28-9-5, in 1989, a comma was inserted following "promulgated by" in subsection (h).

Law reviews.

- For article, "The Chevron Two-Step in Georgia's Administrative Law," see 46 Ga. L. Rev. 871 (2012).

JUDICIAL DECISIONS

General Consideration

Constitutionality.

- Former Civil Code 1910, § 2663 (see O.C.G.A § 46-2-20) was not void as in opposition to U.S. Const., Art. I, Sec. 9, Cl. 3 or Ga. Const. 1976, Art. I, Sec. I, Para. VII (Ga. Const. 1983, Art. I, Sec. I, Para. X), prohibiting passage of any ex post facto law, or U.S. Const., Art. I, Sec. 10, Cl. 1 or Ga. Const. 1976, Art. I, Sec. I, Para. VII (Ga. Const. 1983, Art. I, Sec. I, Para. X), prohibiting passage of laws impairing the obligation of contracts, or U.S. Const., Amend. 5 or Ga. Const. 1976, Art. I, Sec. III, Para. I (Ga. Const. 1983, Art. I, Sec. III, Para. I, II; Art. III, Sec. VI, Para. II), prohibiting the taking of property without due process of law, or Ga. Const. 1976, Art. VII, Sec. I, Para. I (Ga. Const. 1983, Art. VII, Sec. I, Para. I), declaring taxation a sovereign right. Union Dry Goods Co. v. Georgia Pub. Serv. Corp., 142 Ga. 841, 83 S.E. 946, 1916E L.R.A. 358 (1914), aff'd, 248 U.S. 372, 39 S. Ct. 117, 63 L. Ed. 309, 9 A.L.R. 1420 (1919).

Business conducted by electric light and power companies public in nature.

- Public nature of business conducted by electric light and power companies was indicated by former Civil Code 1910, § 2663 (see O.C.G.A § 46-2-20) placing them under the general supervision of the commission. Central Ga. Power Co. v. Ham, 139 Ga. 569, 77 S.E. 396 (1913).

Construction of word "establish."

- A reasonable construction of the word "establish" used in former Code 1933, § 93-307 (see O.C.G.A § 46-2-20) was that it is defined to include the extension of existing service, and to bring into being new service and facilities in connection therewith. Georgia Pub. Serv. Comm'n v. Georgia Power Co., 182 Ga. 706, 186 S.E. 839 (1936).

Injunction available against commission.

- Injunction is an available remedy to restrain the Georgia Public Service Commission from acts or threatened acts which are beyond the scope of its jurisdiction and authority. Georgia Power Co. v. Georgia Pub. Serv. Comm'n, 211 Ga. 223, 85 S.E.2d 14 (1954).

Utility has no authority to select customers or discriminate.

- A corporation organized to generate and supply hydroelectric power to the public, and having a monopoly of such power in former Code 1933, § 93-307 (see O.C.G.A § 46-2-20) where it operated, had no authority to select customers or discriminate against the members of a class it had elected to serve. Georgia Pub. Serv. Comm'n v. Georgia Power Co., 182 Ga. 706, 186 S.E. 839 (1936).

Right of utilities to contract.

- Public utilities have the right to enter into contracts between themselves, or with others, free from control or supervision of the state, so long as such contracts are not unconscionable or oppressive and do not impair the obligation of the utility to discharge its public duties. Georgia Power Co. v. Georgia Pub. Serv. Comm'n, 211 Ga. 223, 85 S.E.2d 14 (1954).

Contract provisions prepared by utility to be construed in customer's favor.

- Where provisions of contract are prepared by a utility company the provisions must be strictly construed in favor of the customer. State Farm Fire & Cas. Co. v. Southern Bell Tel. & Tel. Co., 245 Ga. 5, 262 S.E.2d 895 (1980).

Gas utility converting gas into total energy service subject to rate regulation.

- Public utility selling only natural gas cannot avoid regulation of its rates by converting gas into total energy service, which includes electricity, a utility also subject to regulation. Atlanta Gas Light Co. v. Georgia Pub. Serv. Comm'n, 228 Ga. 347, 185 S.E.2d 403 (1971).

Contract to furnish total energy system held not private nonutility contract.

- Contract between public utility and landlord to furnish total energy system (hot and cold water and electricity included) is not a private nonutility contract and was therefore subject to regulation by the Public Service Commission. Atlanta Gas Light Co. v. Georgia Pub. Serv. Comm'n, 228 Ga. 347, 185 S.E.2d 403 (1971).

Utility may require separate gas meters.

- Rule and regulation of gas company, approved by the Public Service Commission, requiring a separate gas meter to be installed for each housekeeping apartment, was not, under the allegations of the petition, arbitrary, unreasonable, or discriminatory. Carmichael v. Atlanta Gaslight Co., 185 Ga. 34, 193 S.E. 896 (1937).

Cited in Ezell v. City of Atlanta, 13 Ga. App. 95, 78 S.E. 850 (1913); Savannah Elec. Co. v. Lowe, 27 Ga. App. 350, 108 S.E. 313 (1921); Gas Light Co. v. Georgia Power Co., 313 F. Supp. 860 (M.D. Ga. 1970); City of Doraville v. Southern Ry., 227 Ga. 504, 181 S.E.2d 346 (1971); Georgia Power Co. v. Allied Chem. Corp., 233 Ga. 558, 212 S.E.2d 628 (1975); Georgia Power Project v. Georgia Power Co., 409 F. Supp. 332 (N.D. Ga. 1975); Bryan v. Georgia Pub. Serv. Comm'n, 238 Ga. 572, 234 S.E.2d 784 (1977); City of LaGrange v. Ga. PSC, 296 Ga. App. 615, 675 S.E.2d 525 (2009).

Powers of Commission

For power of Public Service Commission to regulate generally, see Railroad Comm'n v. Louisville & N.R.R., 140 Ga. 817, 80 S.E. 327, 1915E L.R.A. 902, 1915A Ann. Cas. 1018 (1913).

Public Service Commission has only such powers as are granted to it by statute. Georgia Pub. Serv. Comm'n v. Atlanta Gas Light Co., 205 Ga. 863, 55 S.E.2d 618 (1949).

Commission may require railroads to provide equal freight service.

- Public Service Commission has power to prevent unjust discriminations and to require railroad companies in the conduct of their intrastate business to afford equal facilities in the transportation and delivery of freight. Southern Ry. v. Georgia Pub. Serv. Comm'n, 218 Ga. 157, 127 S.E.2d 12 (1962).

Commission may regulate handling of baggage.

- Former Civil Code 1910, § 2663 (see O.C.G.A § 46-2-20) conferred the power upon the Public Service Commission to issue an order requiring a terminal company to receive and check to its destination certain properly identified baggage. Atlanta Term. Co. v. Georgia Pub. Serv. Comm'n, 163 Ga. 897, 137 S.E. 556 (1927).

Commission not authorized to grant reparations or compensatory damages.

- Public Service Commission is not authorized to grant reparations or compensatory damages, either by reason of a public utility collecting unreasonable rates, or by reason of the violation of any rule or regulation of the commission. The commission does not have the power to impose forfeitures or to provide for pecuniary recoveries. Georgia Pub. Serv. Comm'n v. Atlanta Gas Light Co., 205 Ga. 863, 55 S.E.2d 618 (1949).

Commission can not require utility to buy, merge with, or sell power to another utility.

- Public Service Commission is not authorized to require electric public utility to buy or merge against its will with a neighboring electric public utility, or to sell power to such other public utility where it has never undertaken as such public utility to provide such service. Public regulation must not supplant private management. Georgia Power Co. v. Georgia Pub. Serv. Comm'n, 211 Ga. 223, 85 S.E.2d 14 (1954).

Commission not authorized to determine whether street railroad company may discontinue service.

- Under former Civil Code 1910, § 2663 (see O.C.G.A § 46-2-20) the commission had no express or implied power to determine whether a chartered street railroad company may entirely discontinue or abandon service upon a line, or part thereof, voluntarily constructed by it and devoted to the public use. Railroad Comm'n v. Macon Ry. & Light Co., 151 Ga. 256, 106 S.E. 282 (1921).

Limitation of damages for interrupted telephone service proper.

- Since the fixing of utility rates is no longer a matter of private contract, but is charged with a public interest, and it is to the public interest to have uninterrupted service at a reasonable price, it necessarily follows that a reasonable limitation of liability for damages for interrupted telephone service may be considered as a part of the telephone rate-making function. Southern Bell Tel. & Tel. Co. v. Invenchek, Inc., 130 Ga. App. 798, 204 S.E.2d 457 (1974).

Requiring extension of power lines beyond utility's commitment unconstitutional.

- Requiring extension of existing power lines beyond scope of carrier's commitment to public service is an unconstitutional taking of property. Georgia Pub. Serv. Comm'n v. Georgia Power Co., 182 Ga. 706, 186 S.E. 839 (1936).

Commission may investigate contracts impairing utilities public duties.

- Commission is authorized to investigate possibility that a contract impairs obligation of a utility to discharge its public duties. Atlanta Gas Light Co. v. Georgia Pub. Serv. Comm'n, 228 Ga. 347, 185 S.E.2d 403 (1971).

Commission not to issue special order without notice and hearing.

- Former Civil Code 1910, § 2663 (see O.C.G.A § 46-2-20) contemplated that notice and an opportunity of a hearing be given and that provision may be made for such notice either by statute or rule of the commission. That section was to be construed to mean that the commission shall not issue a special order in a particular case, directed to a person or corporation, without first giving notice and an opportunity for hearing to the person or corporation so to be affected thereby. Wadley S. Ry. v. State, 137 Ga. 497, 73 S.E. 741 (1912), aff'd, 235 U.S. 651, 35 S. Ct. 214, 59 L. Ed. 405 (1914); City of Atlanta v. Georgia Ry. & Power Co., 149 Ga. 411, 100 S.E. 442 (1919).

Courts to investigate only unreasonable, arbitrary, or confiscatory commission orders.

- Courts should not interfere with valid order of Public Service Commission unless it is clearly shown that the order is unreasonable, arbitrary, or confiscatory; and courts have no power to substitute their judgment for that of the commission. Georgia Pub. Serv. Comm'n v. Georgia Power Co., 182 Ga. 709, 186 S.E. 839 (1936).

Commission has no authority to adjudicate contractual disputes between local exchange carriers.

- The statute does not grant authority to the Georgia State Public Commission to adjudicate contractual disputes between local exchange carrier. BellSouth Telecomms., Inc. v. MCImetro Access Transmission Servs., 278 F.3d 1223 (11th Cir. 2002), vacated, 297 F.3d 1276 (11th Cir. 2002).

Commission has authority under federal law to interpret and enforce interconnection agreements and its determination is subject to review in federal court. BellSouth Telecomms., Inc. v. MCImetro Access Transmission Servs., 317 F.3d 1270 (11th Cir. 2003).

Power to regulate construction belongs to Commission.

- The regulation of the construction of electric power substations by municipalities was preempted based on the authority given to the Public Service Commission under O.C.G.A. § 46-2-20. City of Buford v. Ga. Power Co., 276 Ga. 590, 581 S.E.2d 16 (2003).

While the Georgia Public Service Commission (PSC) had the authority to regulate the placement of electrical substations, no requirement existed that every complex construction project be subject to zoning-like restrictions as an agency was not required to exercise the agency's zoning power under O.C.G.A. § 36-66-2(a); the broad statutory delegations of authority to the PSC did not specifically mention siting and did not provide sufficient objective standards to control the PSC's discretion so a trial court improperly directed the PSC to consider the propriety of a power company's construction of a substation and apply specific standards to the case. Ga. PSC v. Turnage, 284 Ga. 610, 669 S.E.2d 138 (2008).

Rate-making

Public Service Commission has power to regulate rates and practices of public utilities. Gas Light Co. v. Georgia Power Co., 440 F.2d 1135 (5th Cir. 1971), cert. denied, 404 U.S. 1062, 92 S. Ct. 732, 30 L. Ed. 2d 750 (1972).

Commission may fix different rates for classes of customers.

- Since the Public Service Commission has by statute authority to fix just and reasonable gas rates to be paid by consumers, it has the power to make classifications which are reasonable, and to fix a different rate for each class of consumers; and where such rates are attacked in the courts, there is a presumption that they are valid, and the burden is on the attacking party to show that the same are invalid in that they are unjust, unreasonable, or discriminatory. Carmichael v. Atlanta Gaslight Co., 185 Ga. 34, 193 S.E. 896 (1937).

Matters to be considered in rate-making.

- What is just and reasonable to be charged, what is actuarially sound, what limitations of liability are necessary to reach this result, are matters which need to be taken into account in the determination of public utility rates, just as there are proper actuarial considerations in fixing insurance premiums. Southern Bell Tel. & Tel. Co. v. Invenchek, Inc., 130 Ga. App. 798, 204 S.E.2d 457 (1974).

Courts have no power to make rates.

- Making and controlling utility rates is a legislative function delegated to a quasi-legislative body and the courts have no power to control and make such rates. DeKalb County v. Southern Bell Tel. & Tel. Co., 358 F. Supp. 498 (N.D. Ga. 1972), aff'd, 478 F.2d 700 (5th Cir. 1973).

Administrative remedies must be exhausted before court may exercise jurisdiction.

- Where plaintiff fails to utilize the administrative remedies available for investigations and hearings (see O.C.G.A. Art. 3, Ch. 2, T. 46), a court lacked jurisdiction to determine the reasonableness of a public utility's rate structure. Norman v. United Cities Gas Co., 231 Ga. 788, 204 S.E.2d 127 (1974).

Court lacked jurisdiction to hear utility company's appeal from an interim order.

- Trial court erred by affirming a decision of the Georgia Public Service Commission (PSC) in a ratemaking appeal filed by a gas distribution company and by denying the PSC's motion to dismiss the company's appeal; the trial court lacked jurisdiction to hear the company's petition for judicial review since one order appealed from was an interim order, and not a final order, and a voice note appealed from was not even a decision subject to review. Atmos Energy Corp. v. Ga. PSC, 290 Ga. App. 243, 659 S.E.2d 385 (2008).

OPINIONS OF THE ATTORNEY GENERAL

General Consideration

Grant of right to render utility service predicated on meeting public need.

- The reason and purpose for granting a right or authority to render a utility service is to meet a public need for service; if the utility holding such grant fails to serve, the grant should not survive. 1971 Op. Att'y Gen. No. 71-144.

Meaning of terms within section prohibiting political contributions by utilities.

- Section21-5-30 prohibited political campaign contributions on behalf of public utility corporations regulated by the Public Service Commission; "public utility" was a business organization which regularly supplied the public with some commodity or service; "regulated" was defined in former Code 1933, § 93-307 (see O.C.G.A § 46-2-20). 1976 Op. Att'y Gen. No. 76-53.

Utilities within scope of section prohibiting political contributions by utilities.

- Those public utility corporations which are within the ambit of Public Service Commission's supervision under former Code 1933, § 93-307 (see O.C.G.A § 46-2-20) or other laws were also within the scope of § 21-5-30. 1976 Op. Att'y Gen. No. 76-53.

Property owner to be compensated where utility service interrupted by condemnation.

- When a taking of property by condemnation interrupts utility service, the property owner has a right to this service, and the utility company is required to furnish the service; this is a right which cannot be taken without just compensation being paid; therefore, utility service must be maintained, or the property owner compensated, in case the service is interrupted by condemnation. 1967 Op. Att'y Gen. No. 67-69.

Liability of condemning authority for damages.

- Where market value of property is adversely affected by interruption of utility service, condemning authority is liable for damages. 1967 Op. Att'y Gen. No. 67-69.

Powers of Commission

Restrictions on commission's jurisdiction.

- Jurisdiction of Public Service Commission was restricted to those electric and gas companies which serve the public, under former Code 1933, §§ 93-304 and 93-307 (see O.C.G.A § 46-2-20 and46-2-21). 1972 Op. Att'y Gen. No. 72-84.

Commission has power to regulate telegram charges.

- The Public Service Commission has not only general supervisory powers over business organizations which are chartered as telegraph companies under the laws of the State of Georgia, but also express authority to regulate the charges for telegraph messages. 1976 Op. Att'y Gen. No. 76-79.

Commission may require telephone companies to indicate fact that subscriber using listening equipment.

- The Public Service Commission has the authority to require, by appropriate regulation, telephone companies under its jurisdiction to accurately indicate in a reasonable manner, by reference in their telephone directories, the fact that a subscriber is utilizing telephone service observing equipment and this requirement is enforceable even where the subscriber happens to be the United State Internal Revenue Service. 1974 Op. Att'y Gen. No. 74-69.

Where commission lacks jurisdiction.

- Commission has no jurisdiction over natural gas facilities owned and operated by and within county or municipality. 1967 Op. Att'y Gen. No. 67-291.

Commission has no jurisdiction over rates charged by electric power company for steam generated as by-product of the manufacture of electricity. 1976 Att'y Gen. No. 76-91.

Commission has no jurisdiction over intrastate transportation rates of railroads and common and contract motor carriers on movements of government-owned property for account of United States Armed Forces. 1958-59 Op. Att'y Gen. p. 304.

Commission has no jurisdiction over resale of utility services by landlord to the landlord's tenants who object to the specific charges being made by their landlord for the furnishing of utility services. 1971 Op. Att'y Gen. No. 71-81.

Commission does not have authority over private carriers.

- Private carriers are not included within the purview of the commission's general supervision and are not subject to the prohibition against political contributions set forth in O.C.G.A. § 21-5-30(f). 1990 Op. Att'y Gen. No. 90-32.

Commission may not require railroad not presently providing passenger service to begin doing so.

- Commission does not have authority to require a railroad not presently providing passenger service to commence passenger service if the railroad does not desire to do so. If railroad has voluntarily undertaken to provide passenger service to the citizens of this state the commission would have the authority to require the railroad to maintain such public service and facilities as may be reasonable and just. However, the commission cannot require the railroad to operate at a loss. 1980 Op. Att'y Gen. No. 80-36.

Commission may not regulate constructional details within railroad yards.

- Public Service Commission is without authority to regulate constructional details as to spacing of railroad tracks within railroad yards. 1952-53 Op. Att'y Gen. p. 496.

Commission may not regulate railroad safety regulations not affecting public.

- Commission is not concerned with internal affairs of railroads and disputes between the railroads and their employees concerning safety regulations which do not in any way affect the public. 1972 Op. Att'y Gen. No. 72-133.

Federal preemption of safety regulations of railroads engaged in interstate commerce.

- As to railroads which are in interstate commerce, commission is preempted from imposing any safety regulations concerning any subject over which the federal government has an existing regulation. 1980 Op. Att'y Gen. No. 80-36.

Commission revocation of nonuse of certificate granted to telephone company.

- Public Service Commission can revoke for nonuse a certificate of public convenience and necessity granted to a telephone company after hearing all facts of a particular case. 1971 Op. Att'y Gen. No. 71-144.

Regulation of cellular radio telecommunication services.

- The Georgia Public Service Commission does not have jurisdiction to regulate cellular radio telecommunication services where the company providing the service operates as a radio utility, but may have jurisdiction to regulate cellular radio telecommunication services where the company providing the service operates as a telephone utility. 1983 Op. Att'y Gen. No. 83-65.

RESEARCH REFERENCES

9 Am. Jur. Pleading and Practice Forms, Electricity, Gas, and Steam, § 1.

ALR.

- Jurisdiction of Public Service Commission over carriers transporting by motor trucks or buses, 1 A.L.R. 1460; 9 A.L.R. 1011; 51 A.L.R. 820; 103 A.L.R. 268.

Federal control of public utilities, 14 A.L.R. 234; 19 A.L.R. 678; 52 A.L.R. 296.

What telephone companies are within public utilities acts, 21 A.L.R. 1162; 132 A.L.R. 1495.

Power of Public Service Commission to require carrier to furnish cars of special type, 23 A.L.R. 411.

Special services or facilities afforded by shipper as a factor in carrier's rates, 25 A.L.R. 191.

Power to require railroads or street railways to permit use of tracks in street by other companies, 28 A.L.R. 969.

Power of Public Service Commission to require railroad or street railway to extend its line or build new line to new territory, 30 A.L.R. 73.

Power of Public Service Commission with respect to regulation of street railways, 39 A.L.R. 1517.

Street easements as a factor in fixing a rate base for a street railway company, 49 A.L.R. 1477.

Power of Public Service Commission in respect to alteration or extension of passenger service, 70 A.L.R. 841.

Right to make charge for telephone or other public utility service in excess of that fixed by public utility, 73 A.L.R. 1194.

Discrimination between telephone subscribers, or between them and nonsubscribers, as regards use of phone by third persons or charges therefor, 127 A.L.R. 728.

Membership corporation or association or cooperative group furnishing to its members electric, telephone, or other service commonly supplied by public utility, as subject to governmental regulation or to jurisdiction of Public Service Commission, 132 A.L.R. 1495.

Adequacy, as regards right to injunction, of other remedy for review of order fixing public utility rates, 8 A.L.R.2d 839.

Right of customers of public utility with respect to fund representing a refund from another supplying utility upon reduction of latter's rates, 18 A.L.R.2d 1343.

Community antenna television systems (CATV) as subject to jurisdiction of state public utility or service commission, 61 A.L.R.3d 1150.

Landlord supplying electricity, gas, water, or similar facility to tenant as subject to utility regulation, 75 A.L.R.3d 1204.

Telephone company's liability for disclosure of number or address of subscriber holding unlisted number, 1 A.L.R.4th 218.

Incidental provision of utility services, by party not in that business, as subject to regulation by state regulatory authority, 85 A.L.R.4th 894.

Incidental provision of transportation services, by party not primarily in that business, as common carriage subject to state regulatory control, 87 A.L.R.4th 638.

Public service commission's implied authority to order refund of public utility revenues, 41 A.L.R.5th 783.

46-2-21. Extension of commission's powers and duties to street railroads, telegraph companies, telephone companies, and gas and electric light and power companies.

  1. The powers and duties conferred by law prior to August 23, 1907, upon the commission and its authority and control shall extend to street railroads and to companies owning, leasing, or operating street railroads in this state, provided that nothing in this Code section shall be construed to impair any valid contract between any municipality and any such company in force on that date; provided, further, that this Code section shall not operate to repeal any municipal ordinance existing on that date; nor shall it impair or invalidate any contract or ordinance of any municipality made or adopted since that date as to the public uses of such company, which contract or ordinance has received the assent of the commission.
  2. The powers and duties conferred by law prior to August 23, 1907, upon the commission and its authority and control shall also extend to:
    1. Docks and wharves, and companies owning, leasing, or operating the same;
    2. Terminals or terminal stations, and companies owning, leasing, or operating the same;
    3. Cotton compress corporations or associations, and companies owning, leasing, or operating the same;
    4. Telegraph or telephone companies, or persons owning, leasing, or operating a public telephone service or telephone lines in this state; and
    5. Gas and electric light and power companies, or persons owning, leasing, or operating public gas plants or electric light and power plants furnishing service to the public.

(Ga. L. 1907, p. 72, § 5; Ga. L. 1908, p. 67, § 1; Civil Code 1910, § 2662; Ga. L. 1922, p. 143, § 1; Code 1933, § 93-304.)

Law reviews.

- For survey article on local government law, see 34 Mercer L. Rev. 225 (1982).

JUDICIAL DECISIONS

General Consideration

Constitutionality.

- Ga. L. 1907, p. 72, § 5 (see O.C.G.A. § 46-2-21) is not void as in opposition to U.S. Const., Art. I, Sec. 9, Cl. 3 or Ga. Const. 1976, Art. I, Sec. I, Para. VII (Ga. Const. 1983, Art. I, Sec. I, Para. X), prohibiting passage of any ex post facto law, or U.S. Const., Art. I, Sec. 10, Cl. 1 or Ga. Const. 1976, Art. I, Sec. I, Para. VII (Ga. Const. 1983, Art. I, Sec. I, Para. X), prohibiting passage of laws impairing the obligation of contracts, or U.S. Const., Amend. 5 or Ga. Const. 1976, Art. I, Sec. III, Para. I (Ga. Const. 1983, Art. I, Sec. III, Para. I, II; Art. III, Sec. VI, Para. II), prohibiting the taking of property without due process of law, or Ga. Const. 1976, Art. VII, Sec. I, Para. I (Ga. Const. 1983, Art. VII, Sec. I, Para. I), declaring taxation a sovereign right. Union Dry Goods Co. v. Georgia Pub. Serv. Corp., 142 Ga. 841, 83 S.E. 946, 1916E L.R.A. 358 (1914), aff'd, 248 U.S. 372, 39 S. Ct. 117, 63 L. Ed. 309, 9 A.L.R. 1420 (1919).

Application of section generally.

- The provisions of former Civil Code 1910, § 2662 (see O.C.G.A § 46-2-21), which restrict the power of the commission in regard to contracts existing at the time of the passage of the Act embodied in this section, and contracts which might be made subsequently to that Act, apply alike to all of the several classes of companies specified. City of Atlanta v. Georgia Ry. & Power Co., 149 Ga. 411, 100 S.E. 442 (1919).

Municipal ordinances regulating public uses of telephone companies require commission's assent.

- Authority and control vested in Public Service Commission invalidates any municipal ordinance adopted since August 23, 1907, as to public uses of a telephone company unless the Public Service Commission shall assent thereto. Camden Tel. & Tel. Co. v. City of St. Marys, 247 Ga. 687, 279 S.E.2d 200 (1981).

Construction of term "corporation."

- Word "corporation" in former Code 1933, § 93-304 (see O.C.G.A § 46-2-21) did not refer to municipal corporations which own, lease, or operate electric light and power plants, but refers to what are ordinarily known as private corporations. Georgia Pub. Serv. Comm'n v. City of Albany, 180 Ga. 355, 179 S.E. 369 (1935).

Construction of term "public uses."

- Words "public uses" as employed in O.C.G.A. § 46-2-21 comprehend rates a telephone company may charge the public. Camden Tel. & Tel. Co. v. City of St. Marys, 247 Ga. 687, 279 S.E.2d 200 (1981).

Ordinance taxing percentage of telephone company revenues held not ordinance as to public use of utility.

- Ordinance imposing a tax upon percentage of revenues of a telephone company is not an ordinance as to public uses of the utility; the tax is a factor the Public Service Commission may take into account in setting rates to be charged by the utility, and, in that manner the consequences of the tax as to the public uses of the telephone system remain within the control of the Public Service Commission. Camden Tel. & Tel. Co. v. City of St. Marys, 247 Ga. 687, 279 S.E.2d 200 (1981).

Power of common carrier to make regulations must yield to state.

- Construing former Civil Code 1910, §§ 2662, 2630, 2729 and 2750 (see O.C.G.A. §§ 46-2-21,46-8-20,46-9-40 and46-9-131), it was evident that the power of a common carrier to make reasonable regulations must yield where regulations have been made by authority of the state, unless they were invalid. Railroad Comm'n v. Louisville & N.R.R., 140 Ga. 817, 80 S.E. 327, 1915E L.R.A. 902, 1915A Ann. Cas. 1018 (1913).

Contracts subject to subsequent rate schedules prescribed by commission.

- If a patron of a public service corporation, furnishing electrical power and light, sees fit to make a contract covering a definite period of time, where no rates have been prescribed by the commission, the patron will be taken to have done so subject to subsequent schedules of rates lawfully prescribed by the commission. Union Dry Goods Co. v. Georgia Pub. Serv. Corp., 142 Ga. 841, 83 S.E. 946, 1916E L.R.A. 358 (1914), aff'd, 248 U.S. 372, 39 S. Ct. 117, 63 L. Ed. 309, 9 A.L.R. 1420 (1919).

Utility has no authority to select customers or discriminate.

- A corporation organized to generate and supply hydroelectric power to the public, and having a monopoly of such power in former Code 1933, § 93-304 (see O.C.G.A § 46-2-21) where it operates, had no authority to select customers or discriminate against the members of a class it had elected to serve. Georgia Pub. Serv. Comm'n v. Georgia Power Co., 182 Ga. 706, 186 S.E. 839 (1936).

Maximum rates fixed by commission presumptively reasonable.

- Where the legislature confers upon the commission the power to fix maximum rates for service rendered to the public by individuals or corporations engaged in a public service, the maximum rates fixed by the commission are presumptively reasonable, and public service companies may demand such maximum rates. City of Dublin v. Ogburn, 142 Ga. 840, 83 S.E. 939 (1914); City of Atlanta v. Atlanta Gas-Light Co., 149 Ga. 405, 100 S.E. 439 (1919), overruled on other grounds, Georgia Power Co. v. Allied Chem. Corp., 233 Ga. 558, 212 S.E.2d 628 (1975).

Unreasonable, arbitrary, or confiscatory commission orders within court's scope.

- Courts should not interfere with valid order of Public Service Commission unless it is clearly shown that the order is unreasonable, arbitrary, or confiscatory; and courts have no power to substitute their judgment for that of the commission. Georgia Pub. Serv. Comm'n v. Georgia Power Co., 182 Ga. 709, 186 S.E. 839 (1936).

Administrative remedies must be exhausted before court may exercise jurisdiction.

- Where plaintiff fails to utilize the administrative remedies available (see O.C.G.A. Art. 3, Ch. 2, T. 46), a court lacks jurisdiction to determine the reasonableness of a public utility's rate structure. Norman v. United Cities Gas Co., 231 Ga. 788, 204 S.E.2d 127 (1974).

No certiorari merely because of commission rate changes.

- Certiorari did not lie to order by commission lowering or raising rates by virtue of former Civil Code 1910, § 2662 (see O.C.G.A. § 46-2-21). Mutual Light & Water Co. v. City of Brunswick, 158 Ga. 677, 124 S.E. 178 (1924).

Utility may require separate gas meters.

- Rule and regulation of gas company, approved by the Public Service Commission, requiring a separate gas meter to be installed for each housekeeping apartment, was not, under the allegations of the petition, arbitrary, unreasonable, or discriminatory. Carmichael v. Atlanta Gaslight Co., 185 Ga. 34, 193 S.E. 896 (1937).

Cited in Western & A.R.R. v. Western Union Tel. Co., 138 Ga. 420, 75 S.E. 471 (1912); Smith v. Whiddon, 138 Ga. 471, 75 S.E. 635 (1912); Mayor of Savannah v. Standard Fuel Supply Co., 140 Ga. 353, 78 S.E. 906 (1913); Georgia Ry. & Power Co. v. Railroad Comm'n, 149 Ga. 1, 98 S.E. 696 (1919); Georgia Power Co. v. City of Decatur, 170 Ga. 699, 154 S.E. 268 (1930); Gas Light Co. v. Georgia Power Co., 313 F. Supp. 860 (M.D. Ga. 1970).

Powers of Commission

Power of commission to regulate utility rates and practices.

- Public Service Commission has power to regulate rates and practices of public utilities. Gas Light Co. v. Georgia Power Co., 440 F.2d 1135 (5th Cir. 1971), cert. denied, 404 U.S. 1062, 92 S. Ct. 732, 30 L. Ed. 2d 750 (1972).

Public Service Commission is authorized to set rates to dictate consequences of charges imposed by municipality in connection with its franchise agreement with a public utility; that is, the Public Service Commission may determine whether or not the charge may be passed on to customers of the utility. Camden Tel. & Tel. Co. v. City of St. Marys, 247 Ga. 687, 279 S.E.2d 200 (1981).

Extent of authority over electric utilities.

- Under former Code 1933, § 93-304 (see O.C.G.A § 46-2-21) the Public Service Commission has authority over electric light and power companies, corporations, or persons owning, leasing, or operating public electric light and power plants furnishing service to the public whether foreign or domestic. Florida Blue Ridge Corp. v. Tennessee Elec. Power Co., 106 F.2d 913 (5th Cir. 1939), cert. denied, 309 U.S. 666, 60 S. Ct. 591, 84 L. Ed. 1013 (1940).

Powers of commission.

- That part of the proviso of former Civil Code 1910, § 2662 (see O.C.G.A § 46-2-21) which declared that this Act shall not impair nor invalidate any future contract or ordinance of any municipality which has received the assent of the commission, does not deprive the commission of power, after assenting to a contract or ordinance of the character mentioned in such provision, to revise or make new rates, where future conditions render the rates specified in the contract or ordinance unreasonable and unjust to the companies or to the public. City of Atlanta v. Georgia Ry. & Power Co., 149 Ga. 411, 100 S.E. 442 (1919).

The Public Service Commission has power to fix just and reasonable gas rates to be paid by the consumers to the corporation owning or operating public gas plants. City of Atlanta v. Atlanta Gas-Light Co., 149 Ga. 405, 100 S.E. 439 (1919), overruled on other grounds, Georgia Power Co. v. Allied Chem. Corp., 233 Ga. 558, 212 S.E.2d 628 (1975).

Power to fix different rates for classes of customers.

- Since the Public Service Commission has by statute authority to fix just and reasonable gas rates to be paid by consumers, it has the power to make classifications which are reasonable, and to fix a different rate for each class of consumers; and where such rates are attacked in the courts, there is a presumption that they are valid, and the burden is on the attacking party to show that the same are invalid in that they are unjust, unreasonable, or discriminatory. Carmichael v. Atlanta Gaslight Co., 185 Ga. 34, 193 S.E. 896 (1937).

Power to fix telephone rates.

- The commission has the right to fix the rates to be charged by telephone companies for the use of their telephones in sending and receiving messages within the state. City of Dawson v. Dawson Tel. Co., 137 Ga. 62, 72 S.E. 508 (1911).

Power to fix street railway fares.

- In the absence of a valid subsisting contract and ordinance upon the subject of fares, it is the duty of the commission, upon application by a street-railroad company, to fix and determine the rates of fare upon the lines of the street-railroad in the city, in accordance with the law defining the powers and duties of the commission. Georgia Ry. & Power Co. v. Railroad Comm'n, 149 Ga. 1, 98 S.E. 696, 5 A.L.R. 1 (1919).

Exception to authority to fix street railway fares.

- The Public Service Commission is without authority to fix fares upon street railway lines where there is a valid, subsisting contract. Georgia Ry. & Power Co. v. Railroad Comm'n, 149 Ga. 1, 98 S.E. 696, 5 A.L.R. 1 (1919).

Requiring extension of power lines beyond utility's commitment unconstitutional.

- Requiring extension of existing power lines beyond scope of carrier's commitment to public service is unconstitutional taking of property. Georgia Pub. Serv. Comm'n v. Georgia Power Co., 182 Ga. 706, 186 S.E. 839 (1936).

OPINIONS OF THE ATTORNEY GENERAL

Factors to be considered in determining public utility status.

- Whether a business operation renders such "service to the public" as to become a public utility is controlled by the facts of each particular case and the question depends on such factors as the extent of the service, whether the operation holds itself out as ready to serve the public generally - at least within a certain area - and whether in other ways it has conducted itself as a public utility. 1969 Op. Att'y Gen. No. 69-27.

In determining whether a business renders such public service as to qualify as a public utility, it is necessary to examine such factors as the extent of the service, whether the operation holds itself out as ready to serve the public generally, and whether in other ways the business has conducted itself as a public utility. 1972 Op. Att'y Gen. No. 72-84.

Limitations on commission's jurisdiction.

- Jurisdiction of Public Service Commission is restricted to those electric and gas companies which serve the public under former Code 1933, §§ 93-304 and 93-307 (see O.C.G.A §§ 46-2-20 and46-2-21). 1972 Op. Att'y Gen. No. 72-84.

Jurisdiction over proposed fare increases.

- Public Service Commission has jurisdiction over proposed increase in fares, even though the city in which the transit company operates has already provisionally assented thereto. 1950-51 Op. Att'y Gen. p. 205.

No jurisdiction over rates charged by trailer park owner.

- Public Service Commission does not have jurisdiction over rates charged by trailer park owner to tenants occupying space in the owner's trailer park. 1969 Op. Att'y Gen. No. 69-27.

No jurisdiction over sale of utilities to tenants by landlord.

- The sale of water or electric energy to one's tenants, whether they be tenants of one's houses, office buildings or otherwise, is not service to the public as to require compliance with the laws on public utilities. 1969 Op. Att'y Gen. No. 69-27.

No jurisdiction over corporation furnishing energy to three other corporations.

- A corporation which furnishes electricity and steam to a total of three other corporations which are engaged in general manufacturing operations does not serve a substantial segment of the public, and hence, is not engaged in "service to the public". 1972 Op. Att'y Gen. No. 72-84.

Regulation of cellular radio telecommunication services.

- The Georgia Public Service Commission does not have jurisdiction to regulate cellular radio telecommunication services where the company providing the service operates as a radio utility, but may have jurisdiction to regulate cellular radio telecommunication services where the company providing the service operates as a telephone utility. 1983 Op. Att'y Gen. No. 83-65.

Cellular communications service is not a telephone service and, as such, not subject to regulation by the Georgia Public Service Commission. 1994 Op. Att'y Gen. No. 94-7.

Phasing cost of generating plant into ratebase of Georgia Power Company.

- The Georgia Public Service Commission may phase the cost of Plant Vogtle into the ratebase of Georgia Power Company prior to the commercial operation of the plant; the Georgia Public Service Commission has authority to phase the cost of Plant Vogtle into the ratebase of Georgia Power Company after the commercial operation of the plant if the phase-in meets certain legal requirements; but either ratemaking treatment should follow threshold regulatory principles. 1985 Op. Att'y Gen. No. U85-2.

Jurisdiction over master-metered customers.

- The Public Service Commission has no jurisdiction over master-metered customers so long as the activities of said customers do not constitute furnishing service to the public. 1985 Op. Att'y Gen. No. 85-39.

RESEARCH REFERENCES

ALR.

- Carrying freight on electric railway in street or highway as an additional servitude, 2 A.L.R. 1404; 46 A.L.R. 1472.

Power of Public Service Commission with respect to regulation of street railways, 5 A.L.R. 36; 39 A.L.R. 1517.

Jurisdiction of Public Service Commission over carriers transporting by motor trucks or busses, 9 A.L.R. 1011; 51 A.L.R. 820; 103 A.L.R. 268.

What telephone companies are within public utilities acts, 21 A.L.R. 1162; 132 A.L.R. 1495.

Power to require railroads or street railways to permit use of tracks in street by other companies, 28 A.L.R. 969.

Power of Public Service Commission to require railroad or street railway to extend its line or build new line to new territory, 30 A.L.R. 73.

Street easements as a factor in fixing a rate base for a street railway company, 49 A.L.R. 1477.

Validity of statute, ordinance, or other public regulation prescribing minimum number of employees for train or streetcar, 69 A.L.R. 343.

46-2-22. Jurisdiction of commission over express companies and telegraph companies.

Reserved. Repealed by Ga. L. 2012, p. 847, § 4/HB 1115, effective July 1, 2012.

Editor's notes.

- This Code section was based on Ga. L. 1890-91, p. 151, § 1; Civil Code 1895, § 2217; Civil Code 1910, § 2660; Ga. L. 1922, p. 143, § 1; Code 1933, § 93-305.

46-2-23. Rate-making power of commission generally; special provisions concerning telecommunications companies.

  1. The commission shall have exclusive power to determine what are just and reasonable rates and charges to be made by any person, firm, or corporation subject to its jurisdiction.
  2. As to those telecommunications companies subject to the jurisdiction of the commission, the commission is not required to fix and determine specific rates, tariffs, or charges for the services offered by said telecommunications companies and in lieu thereof may on application of an interested party or on its own motion after public notice and hearing:
    1. Totally deregulate a service;
    2. Totally eliminate any tariffs on a service;
    3. Eliminate tariff rates for a service but retain tariffs for service standards and requirements; or
    4. Eliminate tariff rates for a service but require that notice of any rate changes be provided to the commission.
  3. In determining what actions, if any, are to be taken on applications under subsection (b) of this Code section, the commission shall conduct hearings at which it shall consider the following factors:
    1. The extent to which competing telecommunications services are available from competitive providers in the relevant geographic market;
    2. The ability of competitive providers to make functionally equivalent or substitute services readily available;
    3. The number and size of competitive providers of service;
    4. The overall impact of the proposed regulatory change on the continued availability of existing services at just and reasonable rates;
    5. The impact of the proposed regulatory change upon efforts to promote universal availability of basic telecommunications services at affordable rates and to permit telecommunications companies subject to the jurisdiction of the commission to respond to competitive thrusts; and
    6. Such other factors as the commission may determine are in the public interest.
  4. Nothing in this Code section shall authorize the application of subsection (b) of this Code section to any service unless functionally equivalent or substitute services are readily available from competitive providers in the relevant geographic market. This finding must be made on the record after public hearing.
  5. Any telecommunications service deregulated or detariffed under this Code section may be reregulated or resubjected to tariffing by the commission if the commission finds, through a proceeding initiated on its own or upon application by an interested party, that such reregulation or retariffing is in the public interest.
  6. Nothing in this Code section shall be interpreted as requiring the commission to alter, amend, or repeal any rule or regulation which relates to any telecommunications company and which has been adopted by the commission or which is under consideration for adoption by the commission as of April 14, 1988.
  7. No telecommunications company may use current revenues earned or expenses incurred in conjunction with services subject to regulation to subsidize services which are not regulated or tariffed. The commission may adopt procedural rules as necessary to implement this subsection.

(Code 1981, §46-2-23, enacted by Ga. L. 1981, Ex. Sess., p. 8; Ga. L. 1988, p. 1988, § 1; Ga. L. 1990, p. 8, § 46; Ga. L. 1992, p. 6, § 46; Ga. L. 2002, p. 415, § 46; Ga. L. 2009, p. 303, §§ 12, 15/HB 117; Ga. L. 2012, p. 847, § 5/HB 1115.)

The 2002 amendment, effective April 18, 2002, part of an Act to revise, modernize, and correct the Code, deleted former subsection (h), which read: "Nothing in this Code section shall be interpreted as amending, modifying, altering, or repealing Chapter 6 of this title, known as the 'Georgia Radio Utility Act.'" and redesignated former subsection (i) as present subsection (h).

The 2009 amendment, effective April 30, 2009, in subsection (h), substituted "House Energy, Utilities and Telecommunications Committee" for "Industry Committee of the House of Representatives" and substituted "Senate Regulated Industries and Utilities Committee" for "Finance and Public Utilities Committee of the Senate". See Editor's notes for intent.

The 2012 amendment, effective July 1, 2012, deleted former subsection (h), which read: "Beginning one year after deregulation or eliminating tariffs on a service, the utility will file within 60 days of such anniversary date with the commission a report showing the rates or tariffs for such service on the effective date of deregulation or detariffing and the rates or tariffs on the anniversary date. Such reports will continue to be filed on an updated basis annually for a period of five years. The commission may prescribe the form and content of such reports. The commission will thereafter as soon as practicable file a summary of the results and contents of such reports with the House Energy, Utilities and Telecommunications Committee and the Senate Regulated Industries and Utilities Committee."

Cross references.

- Authority of General Assembly regarding regulation of public utility rates, Ga. Const. 1983, Art. III, Sec. VI, Para. V.

Prohibition against gratuities, Ga. Const. 1983, Art. III, Sec. VI, Para. VI.

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1988, "April 14, 1988" was substituted for "the effective date of this Code section" at the end of subsection (f) and subsections (f.1) and (g) were redesignated as subsections (g) and (h), respectively.

Editor's notes.

- Ga. L. 1990, p. 8, § 55, repealed Ga. L. 1988, p. 1988, § 2, providing for certain reports after deregulation or elimination of tariffs on a service. These provisions may now be found in subsection (h) of this Code section.

Ga. L. 2009, p. 303, § 20, not codified by the General Assembly, provides that: "This Act is intended to reflect the current internal organization of the Georgia Senate and House of Representatives and is not otherwise intended to change substantive law. In the event of a conflict with any other Act of the 2009 General Assembly, such other Act shall control over this Act."

Law reviews.

- For annual survey on administrative law, see 61 Mercer L. Rev. 1 (2009).

JUDICIAL DECISIONS

Legislature's power to regulate.

- The grant of authority to regulate public utilities to the Public Service Commission, to the exclusion of other executive branch agencies, does not mean that the General Assembly has divested itself of its constitutional power to regulate public utilities. Lasseter v. Georgia Pub. Serv. Comm'n, 253 Ga. 227, 319 S.E.2d 824 (1984).

Review of commission order lowering electric rates.

- Order of Public Service Commission lowering rates charged for electricity is quasi-legislative in character, and writ of certiorari will not lie from the superior court to review such an order. Mutual Light & Water Co. v. City of Brunswick, 158 Ga. 677, 124 S.E. 178 (1924).

Agency decision supported by facts.

- Where the Public Service Commission granted a rate increase, but disallowed some of the utility company's costs in calculating the rate base for a fair increase because it concluded that some of the costs were the result of the company's imprudent management of the project, the agency's decision was within its authority and was supported by the facts. Georgia Power Co. v. Georgia Pub. Serv. Comm'n, 196 Ga. App. 572, 396 S.E.2d 562 (1990).

As O.C.G.A. § 46-2-23(a) authorized the Georgia Public Service Commission to determine "just and reasonable" rates for electric service, and the evidence formed a sufficient basis for the Commission's decision to reallocate franchise fees paid to municipalities in exchange for access to municipal roads and rights-of-way so as to reduce the burden on non-municipal customers, the Commission's decision was not arbitrary, capricious, or unreasonable. Unified Gov't v. Ga. PSC, 293 Ga. App. 786, 668 S.E.2d 296 (2008).

Failure to state a claim.

- Where consumers alleged that they suffered an injury to their business and property, within the purview of 18 U.S.C. § 1964(c), in the form of excessive and illegal charges paid for electrical utility services, the consumer's arguments were rejected because they did not possess a legal right to be charged a lower rate than they were actually charged, and therefore they failed to state a claim upon which relief could have been granted. Taffet v. Southern Co., 967 F.2d 1483 (11th Cir. 1992), cert. denied, 506 U.S. 1021, 113 S. Ct. 657, 121 L. Ed. 2d 583 (1992).

Consumer cannot establish own rate.

- Since the legislature has provided by law that the Public Service Commission shall establish the legal rate for a utility's services, although a consumer of a utility's services has the right to participate in the rate-setting process within the parameters set up by this legislature, the consumer has no legal right to pay any rate other than the one established by the Public Service Commission. Taffet v. Southern Co., 967 F.2d 1483 (11th Cir. 1992), cert. denied, 506 U.S. 1021, 113 S. Ct. 657, 121 L. Ed. 2d 583 (1992).

A rate-payer has no legal right to a rate other than that established by the commission, or filed by a utility and accepted by the commission. Carr v. Southern Co., 263 Ga. 771, 438 S.E.2d 357 (1994).

In a putative class action against the power company regarding the collection of municipal franchise fees, the plaintiffs were not required to exhaust administrative remedies before bringing their putative class action because the plaintiffs did not seek judicial relief from the Public Service Commission's orders; the plaintiffs did not dispute that the Commission could authorize the collection of those fees; the merits of the case were not committed by law to the exclusive jurisdiction of the Commission; and the putative class action would not infringe upon the Commission's exclusive jurisdiction to make just and reasonable rates for electrical service. Ga. Power Co. v. Cazier, 303 Ga. 820, 815 S.E.2d 922 (2018).

Municipalities had standing to appeal agency's ruling.

- As a municipal association intervened in rate-making proceedings before the Georgia Public Service Commission (PSC), and certain municipalities joined the association's arguments in the trial court, the municipalities had standing to appeal the PSC's decision concerning a reallocation of franchise fees paid to the cities, even though the municipalities did not apply to intervene before the PSC under O.C.G.A. § 46-2-59. Unified Gov't v. Ga. PSC, 293 Ga. App. 786, 668 S.E.2d 296 (2008).

RESEARCH REFERENCES

ALR.

- Public utilities: validity of preferential rates for elderly or low-income persons, 29 A.L.R.4th 615.

46-2-23.1. "Alternative form of regulation" defined; filing; notice; approval; release of interstate pipeline capacity.

  1. As used in this Code section, the term "alternative form of regulation" means a method of establishing just and reasonable rates and charges for a gas company by performance based regulation without regard to methods based strictly upon cost of service, rate base, and rate of return. Performance based regulation may include without limitation one or more of the following features: earnings sharing, price caps, price-indexing formulas, ranges of authorized rates of return, and the reduction or suspension of regulatory requirements.
  2. A gas company may from time to time file an application with the commission to have its rates, charges, classifications, and services regulated under an alternative form of regulation. Within ten days of the filing, the gas company shall publish a notice generally describing the application in a newspaper or newspapers with general circulation in its service territory.
  3. After notice and hearing the commission may approve the plan, or approve it with modifications, if the commission determines that the application is in the public interest and will produce just and reasonable rates, after taking into consideration the extent to which the application:
    1. Is designed to and is likely to produce lower prices for consumers of natural gas in Georgia;
    2. Will provide incentives for the gas company to lower its costs and rates;
    3. Will provide incentives to improve the efficiency and productivity of the gas company;
    4. Will foster the long-term provision of natural gas service in a manner that will improve the quality and choices of service;
    5. Is consistent with maintenance and enhancement of safe, adequate, and reliable service and will maintain or improve preexisting service quality and consumer protection safeguards;
    6. Will not result in cross-subsidization among or between groups of gas company customers;
    7. Will not result in cross-subsidization among or between the portion of the gas company's business or operations subject to the alternative form of regulation and any unregulated portion of the business or operations of the gas company or of any of its affiliates;
    8. Will reduce regulatory delay and cost; and
    9. Will tend to enhance economic activity in the affected service territory.
  4. Performance based regulation adopted by the commission as an alternative form of regulation shall provide for the following:
    1. Equal and symmetric opportunities to earn above and below the performance standard;
    2. Performance incentives based upon conditions within the control of the management of the gas company; and
    3. Adjustments from time to time for the net effect of changes in tax rates, other costs imposed by law, and the cost of capital.
  5. Where an application for an alternative form of regulation has been filed by a gas company and the commission determines that the proposal does not satisfy the requirements of this Code section, it may either reject the proposal or issue an order approving an alternative with such modifications as the commission deems necessary to satisfy the requirements of this Code section. The commission shall determine and prescribe in any such order establishing rates and charges the revenue requirements of the gas company filing the application.
  6. An order adopting an alternative form of regulation may include:
    1. Terms and conditions for establishing new services, withdrawing services, price changes to services, and services by contract to individual customers;
    2. Terms and conditions necessary to achieve the objectives contained in subsection (c) of this Code section;
    3. General or specific authorization for changes in rates, charges, classifications, or services such that the provisions of subsection (a) of Code Section 46-2-25 do not require 30 days' notice and commission approval before such change or changes may go into effect; and
    4. Other rates, terms, and conditions that are consistent with the objectives and requirements of subsection (c) of this Code section.
  7. Except as otherwise provided in this Code section, the provisions of this title relating to the rates, charges, and terms of service of a gas company shall apply to rates, charges, and terms of service established pursuant to this Code section.
  8. Any special or negotiated contract between a gas company and a retail customer approved by the commission shall not be invalidated or modified by the provisions of this Code section.
    1. Neither the provisions of this Code section nor the provisions of Article 5 of Chapter 4 of this title shall prohibit a gas company from releasing interstate pipeline capacity available to it from time to time and not required to serve the requirements of its retail customers and marketers and from making sales of gas with or without interstate transportation capacity to municipal corporations, other local gas distribution companies, or marketers and end users connected to an interstate pipeline company or connected to another local distribution company; provided, however, that where net benefits to the firm retail customers who are receiving commodity sales service from the gas company accrue:
      1. Twenty percent of the revenues from the release of interstate pipeline capacity for the purposes of transporting gas to end users in Georgia shall be allocated to the gas company, and the remaining 80 percent of such revenues shall be credited to the costs of gas sold by the gas company to firm retail customers;
      2. Ten percent of the revenues from the release of interstate pipeline capacity for the purpose of transporting gas to end users outside of Georgia shall be allocated to the gas company, and the remaining 90 percent of such revenues shall be credited to the costs of gas sold by the gas company to firm retail customers; and
      3. Fifty percent of the net margin from the sale of gas, with or without interstate capacity, to municipal corporations, other local gas distribution companies, or marketers and end users connected to an interstate pipeline company or connected to another local distribution company shall be allocated to the gas company, and the remaining 50 percent of such net margins shall be credited to the costs of gas sold by the gas company to firm retail customers; provided, however, that if as a result of such sale, the then existing natural gas requirements of retail customers in Georgia cannot be supplied physically, all of such net margin shall be credited to the costs of gas. The net margin shall be calculated by subtracting all variable costs associated with the transaction from the revenues generated by the transaction. The costs recovered by the gas company through such transactions shall be credited to the gas costs payable by retail customers of the gas company.
    2. Where a universal service fund has been created by the commission pursuant to Code Section 46-4-161 for a gas company which is an electing distribution company, as defined in paragraph (10) of Code Section 46-4-152, the shares that are to be credited to the costs of gas sold to firm retail customers under subparagraphs (A), (B), and (C) of paragraph (1) of this subsection shall be allocated to such fund, and the costs recovered through a transaction described in subparagraph (C) of this subsection shall be allocated to such company.
    3. Any gas company which engages in a transaction of a type described in paragraph (1) of this subsection, which results in the allocation to the gas company of a share of the revenues or net margin therefrom, shall make a report to the commission annually describing each such transaction and explaining the benefits resulting to firm retail customers from each such transaction.

(Code 1981, §46-2-23.1, enacted by Ga. L. 1997, p. 798, § 2; Ga. L. 2015, p. 1088, § 35/SB 148.)

The 2015 amendment, effective July 1, 2015, deleted the former last sentence of paragraph (i)(3), which read: "Such report shall be served on the consumer's utility counsel division of the Governor's Office of Consumer Affairs."

Law reviews.

- For article commenting on the enactment of this section, see 14 Ga. St. U.L. Rev. 264 (1997).

46-2-24. Consideration by commission of quality of service in determining just and reasonable rates and charges.

In determining what are just and reasonable rates and charges to be made by any person, firm, or corporation (referred to in this Code section as a "utility") subject to its jurisdiction, the commission is authorized and is directed to consider the quality of the service rendered by such utility.

(Code 1933, § 93-309.1, enacted by Ga. L. 1973, p. 677, § 1.)

Cross references.

- Limitation on authority of General Assembly regarding regulation of public utility rates, Ga. Const. 1983, Art. III, Sec. VI, Para. V.

RESEARCH REFERENCES

Am. Jur. 2d.

- 64 Am. Jur. 2d, Public Utilities, § 166 et seq.

C.J.S.

- 73B C.J.S., Public Utilities, § 27.

ALR.

- Special services or facilities afforded by shipper as a factor in carrier's rates, 25 A.L.R. 191.

Validity of "fuel adjustment" or similar clauses authorizing electric utility to pass on increased cost of fuel to its customers, 83 A.L.R.3d 933.

Advertising or promotional expenditures of public utility as part of operating expenses for rate-making purposes, 83 A.L.R.3d 963.

Public utility's right to recover cost of nuclear power plants abandoned before completion, 83 A.L.R.4th 183.

46-2-25. Procedure for changing any rate, charge, classification, or service; recovery of financing costs.

  1. No person, firm, or corporation (referred to in this Code section as a "utility") subject to the jurisdiction of the commission shall make any change in any rate, charge, classification, or service subject to the jurisdiction of the commission, or in any rule or regulation relating thereto, except after 30 days' notice to the commission and to the public, unless the commission otherwise orders, or unless the commission has previously authorized or approved the change. Such notice shall be given by filing with the commission and keeping open for public inspection new schedules stating plainly the changes to be made in the schedules then in force and the time when the changes will go into effect. The commission, for good cause shown, may allow changes to take effect without requiring the 30 days' notice by an order specifying the changes to be made, the time when they shall take effect, and the manner in which they shall be filed and published.
  2. Whenever any new schedule is filed pursuant to subsection (a) of this Code section, the commission shall have authority, either upon written complaint or upon its own initiative without complaint, at once, and, if it so orders, without answer or formal pleading by the utility but upon reasonable notice, to enter upon a hearing concerning the lawfulness of such rate, charge, classification, or service. Pending such hearing and the decision thereon, the commission, upon filing with such schedule and delivering to the utility affected thereby a statement in writing of its reasons for such suspension, may suspend the operation of such schedule and defer the use of such rate, charge, classification, or service, but not for a period longer than five months beyond the time when it would otherwise go into effect, provided that the commission may apply to the Superior Court of Fulton County for an extension of such period, as provided for in Code Section 46-2-57. After such hearings as are required, whether they are completed before or after the rate, charge, classification, or service goes into effect, the commission may make such orders as are proper with reference thereto within the authority vested in the commission. The commission is empowered to reduce or revoke any such suspension with respect to all or any part of such schedule. If the proceeding has not been concluded and an order not made at the expiration of the suspension period, the proposed change of rate, charge, classification, or service shall go into effect at the end of such period; but in case of a proposed increased rate or charge, the commission shall by order require the interested utility to keep accurate account in detail of all amounts received by reason of such increase, specifying by whom and in whose behalf such amounts were paid; and upon completion of the hearing and the rendering of a decision, the commission shall by further order require such utility to refund, with interest at the maximum legal rate, in such manner as the commission may direct, such portion of such increased rates or charges as by its decision shall be found not justified. Any portion of such refunds not thus refunded to patrons or customers of the utility shall be refunded or disposed of by the utility as the commission may direct, provided that no such funds shall accrue to the benefit of the utility. At any hearing involving a rate or charge sought to be increased, the burden of proof to show that the increased rate or charge is just and reasonable shall be upon the utility, and the commission shall give to the hearing and decision of such questions preference over other questions pending before it and decide the same as speedily as possible.
  3. Before any increased rate or charge shall go into effect without the approval of the commission, the commission shall by order require the interested utility to file with the commission a bond written by a surety who is approved by the commission and who is authorized to transact business in this state. The bond shall be fixed by the commission in an amount not to exceed $250,000.00. The bond shall be payable to the Governor and conditioned upon the faithful performance of the requirements of the refund order entered by the commission, the requirements of this Code section, and the requirements of the rules and regulations of the commission.
  4. Any action taken by the commission under this Code section shall be reduced to writing by the commission and signed by the chairman and secretary thereof. All such actions and orders shall be effective from the date such actions are reduced to writing and are signed as provided by this subsection. No such action or order of the commission may be given retroactive effect. A full and complete record shall be kept of the votes taken in connection with any such action, said record to be entered upon the official minutes of the commission.
  5. Nothing in this Code section shall be construed as limiting the authority granted to the commission by Code Sections 46-2-20 and 46-2-23 to initiate an earnings review hearing.

(c.1) (1)Notwithstanding any provision to the contrary, a utility shall recover from its customers, as provided in this subsection, the costs of financing associated with the construction of a nuclear generating plant which has been certified by the commission prior to January 1, 2018. The financing charges shall accrue on all applicable certified costs as they are recorded in the utility's construction work in progress accounts pursuant to generally accepted accounting and regulatory principles as approved by the commission. The financing costs shall be based on the utility's actual cost of debt, as reflected in its annual surveillance report filed with the commission, and based on the authorized cost of equity capital and capital structure as determined by the commission when setting the utility's current base rates. These financing costs shall be recovered from each customer through a separate rate tariff and allocated on an equal percentage basis to standard base tariffs which are designed to collect embedded capacity costs. The commission shall retain the discretion to consider the effect of this tariff when setting the level of any senior or low income assistance it may authorize; provided, however, that the income qualification for such assistance shall be 200 percent of the federal poverty level.

The commission shall have the authority to authorize any specific accounting treatment for the costs recovered pursuant to this subsection and to review whether costs recovered pursuant to this subsection are being properly recorded.

(A) For any nuclear generating plant certified by the commission on or after July 1, 2009, the utility may begin recovering the costs of financing the construction of the nuclear generating plant at any time within five years after the date on which such nuclear generating plant is certified. Any such costs incurred between the time the plant is certified and the time the utility begins recovering its cost shall be accrued, capitalized, and included in the balance of the account and then amortized over the next five years following the date on which the utility begins recovering the costs of financing the construction and shall be recovered with one-fifth of those deferred costs being recovered each year for five years.

For any nuclear generating plant certified by the commission on or after January 1, 2009, and before July 1, 2009, the utility shall begin recovering on January 1, 2011, any costs of financing the construction of the nuclear generating plant. Any such costs incurred prior to January 1, 2011, shall be accrued, capitalized, and included in the balance of the account and then amortized over the next five years following January 1, 2011, and shall be recovered with one-fifth of those deferred costs being recovered each year for five years.

The costs recoverable pursuant to this subsection shall be recalculated and the level of the charges reset annually if necessary to reflect the level of construction costs expected to be incurred in the next 12 months consistent with the certificate and the financing costs expected to be incurred for the next 12 months together with a balanced accounting of actual expenditures and financing costs incurred in the preceding period.

The financing costs associated with a nuclear generating plant which has been certified by the commission shall continue to be recovered between the time that the generating plant begins commercial operation and until the next general rate case filed by the utility becomes effective, at which time the financing costs being collected for any generating plants which are then in commercial operation shall be included in the general revenue requirements of the utility and collected in the general base rates of the utility.

(Code 1933, § 93-307.1, enacted by Ga. L. 1972, p. 137, § 1; Ga. L. 1976, p. 419, § 1; Ga. L. 2002, p. 475, § 2; Ga. L. 2009, p. 39, § 2/SB 31; Ga. L. 2018, p. 1085, § 1/SB 355.)

The 2002 amendment, effective April 25, 2002, added subsection (e).

The 2009 amendment, effective April 21, 2009, added subsection (c.1).

The 2018 amendment, effective July 1, 2018, added "prior to January 1, 2018" at the end of the first sentence of paragraph (c.1)(1).

Cross references.

- Authority of General Assembly regarding regulation of public utility rates, Ga. Const. 1983, Art. III, Sec. VI, Para. V.

Prohibition against gratuities, Ga. Const. 1983, Art. III, Sec. VI, Para. VI.

Editor's notes.

- Ga. L. 2002, p. 475, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Natural Gas Consumers' Relief Act.'"

Ga. L. 2009, p. 39, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Georgia Nuclear Energy Financing Act.'"

Law reviews.

- For note on the 2002 enactment of this chapter, see 19 Ga. St. U.L. Rev. 285 (2002).

JUDICIAL DECISIONS

Effect of 1976 amendment to section.

- The 1976 amendment to former Code 1933, § 93-307.1 (see O.C.G.A § 46-2-25), which added subsection (d), was a recognition by the legislature that section prior to amendment did not prohibit the effectuating of rates according to the date of billing, which would therefore cover some electricity used prior to the date of the effectuating order. Moore v. Georgia Pub. Serv. Comm'n, 242 Ga. 182, 249 S.E.2d 549 (1978).

Construction with other statutes.

- O.C.G.A. § 46-2-25 supercedes contrary provisions of the Georgia Administrative Procedure Act, O.C.G.A. § 50-13-17, with regard to the judicial review of decisions made by the Georgia Public Service Commission. Atmos Energy Corp. v. Ga. PSC, 290 Ga. App. 243, 659 S.E.2d 385 (2008).

Entitlement to lower rate must be shown to challenge increase on constitutional grounds.

- Utility customers must show they have a legal entitlement to or a vested right in the utility rates being charged before any proposed increase, before they can claim any property rights protected by the United States Constitution. Georgia Power Project v. Georgia Power Co., 409 F. Supp. 332 (N.D. Ga. 1975).

Utility customers have no vested rights in fixed utility rates. Georgia Power Project v. Georgia Power Co., 409 F. Supp. 332 (N.D. Ga. 1975).

Utility customers have no property interest in rate increases.

- Utility customers have no sufficient property interest in given utility rate increase to invoke procedural protections of due process clause of U.S. Const., Amend. 14. Georgia Power Project v. Georgia Power Co., 409 F. Supp. 332 (N.D. Ga. 1975).

Collective ratemaking activities carried on by "rate bureaus" immune from antitrust liability.

- Collective ratemaking activities carried on by "rate bureaus" composed of motor common carriers operate in several states, although not compelled by the states involved, "clearly articulated state policy" and thus were immune from antitrust liability. Southern Motor Carriers Rate Conference, Inc. v. United States, 471 U.S. 48, 105 S. Ct. 1721, 85 L. Ed. 2d 36 (1985).

Recovery of costs of demand-side programs.

- The commission had authority under O.C.G.A. § 46-3A-9 to allow a utility to recover the costs of demand-side energy conservation programs and interruptible service credits through riders or surcharges outside of a general rate case and the test year statute. Georgia Power Co. v. Georgia Indus. Group, 214 Ga. App. 196, 447 S.E.2d 118 (1994).

Order addressing disposition of overearnings authorized.

- Neither the Public Service Commission's determination that Tier 2 local exchange companies' return on equity earnings exceeded that authorized, nor its order for the application of over-earnings to reduce intrastate access rates violated either subsection (d) of O.C.G.A. § 46-2-25, which prohibits rate-making orders with retroactive effect, or O.C.G.A. § 46-5-166(f)(2), regarding adjustments to intrastate access rates. Georgia PSC v. ALLTEL Ga. Communs. Corp., 244 Ga. App. 645, 536 S.E.2d 542 (2000).

What constitutes a rate case.

- A hearing before the commission to consider a utility's proposed alternate rate plan that did not recommend or request any rate changes for customers did not constitute a rate case requiring a full hearing. Georgia Public Serv. Comm'n v. Campaign for a Prosperous Ga., 229 Ga. App. 28, 492 S.E.2d 916 (1997).

Sufficiency of findings of fact.

- Where the Public Service Commission granted a rate increase, but disallowed some of the utility company's costs in calculating the rate base for a fair increase because it concluded that some of the costs were the result of the company's imprudent management of the project, the agency's decision was within its authority, and was supported by the facts. Georgia Power Co. v. Georgia Pub. Serv. Comm'n, 196 Ga. App. 572, 396 S.E.2d 562 (1990), cert. denied, 196 Ga. App. 908, 396 S.E.2d 562 (1990).

Court lacked jurisdiction to hear utility company's ratemaking appeal from an interim order.

- Trial court erred by affirming a decision of the Georgia Public Service Commission (PSC) in a ratemaking appeal filed by a gas distribution company and by denying the PSC's motion to dismiss the company's appeal; the trial court lacked jurisdiction to hear the company's petition for judicial review since one order appealed from was an interim order, and not a final order, and a voice note appealed from was not even a decision subject to review. Atmos Energy Corp. v. Ga. PSC, 290 Ga. App. 243, 659 S.E.2d 385 (2008).

Natural gas distribution company could not challenge a rate change ruling by the Georgia Public Service Commission (PSC) because the order was not a final order under O.C.G.A. § 46-2-25(d) as the language indicated that it was only an interim decision; § 46-2-25 did not mandate the entry of a final order at the end of the six-month "file and suspend" period, and O.C.G.A. § 50-13-17(b) of the Administrative Procedure Act did not prevail over the more restrictive requirements imposed by § 46-2-25(d) as to the manner in which the PSC rendered a decision. Atmos Energy Corp. v. Ga. PSC, 285 Ga. 133, 674 S.E.2d 312 (2009).

Constitutional challenges to statute could not be considered on appeal.

- Taxpayers constitutional challenges to the Georgia Nuclear Energy Financing Act, O.C.G.A. § 46-2-25(c.1), could not be considered on appeal because the trial court declined to reach the merits of the constitutional challenges and merely ruled that the taxpayers lacked standing to raise the claims; because the taxpayers neither enumerated as error the ruling of the trial court that the taxpayers lacked standing to raise a constitutional challenge to § 46-2-25(c.1) nor provided any argument or citation of authority with respect to that ruling, it was not made an issue in the appeal and would not be considered. Fulton County Taxpayers Found., Inc. v. Ga. PSC, 287 Ga. 876, 700 S.E.2d 554 (2010).

Cited in Georgia Power Co. v. Georgia Pub. Serv. Comm'n, 231 Ga. 339, 201 S.E.2d 423 (1973); Georgia Power Co. v. Allied Chem. Corp., 233 Ga. 558, 212 S.E.2d 628 (1975); Bryan v. Georgia Pub. Serv. Comm'n, 238 Ga. 572, 234 S.E.2d 784 (1977).

OPINIONS OF THE ATTORNEY GENERAL

Companies within scope of section.

- Common carriers and transportation companies as well as power utilities are covered by former Code 1933, § 93-307.1 (see O.C.G.A § 46-2-25). 1972 Op. Att'y Gen. No. 72-34.

Limitation on suspension of schedule by commission.

- Commission may not suspend schedule beyond five months, unless a utility by its own action manifests an intent to withdraw or extend the effective date of a scheduled increase. 1973 Op. Att'y Gen. No. 73-70.

Section is exclusive method for suspending tariff revision implementation.

- Former Code 1933, § 93-307.1 (see O.C.G.A § 46-2-25) was exclusive method by which commission may suspend implementation of tariff revision. 1973 Op. Att'y Gen. No. 73-6.

Commission's responsibility not altered by conditional approval of tariff amendment.

- Conditional approval by the commission of tariff amendment during 30-day period provided by former Code 1933, § 93-307.1 (see O.C.G.A § 46-2-25) did not alter substantive responsibility and authority of the commission. 1973 Op. Att'y Gen. No. 73-6.

Implemented tariff amendment not to be suspended during subsequent examination.

- A tariff amendment which has been implemented by a utility, either by virtue of the expiration of the 30-day period without commission action or by virtue of such conditional approval by the commission during that period, may not be later suspended by the commission during subsequent examination pending a final determination by the commission. 1973 Op. Att'y Gen. No. 73-6.

Later examination possible even after decision not to suspend tariff revision.

- If the commission in the exercise of its discretion determines that a tariff revision should not be suspended under former Code 1933, § 93-307.1 (see O.C.G.A § 46-2-25), the commission was not foreclosed from later examining the tariff provision, on its own initiative or upon the filing of a complaint. 1973 Op. Att'y Gen. No. 73-6.

Terminating utility service to persons outside municipality.

- A municipality which provides utility services to persons located outside the limits of the municipality may terminate such utility services in accordance with the provisions of Article 2 of the UCC. 1987 Op. Att'y Gen. No. U87-27.

RESEARCH REFERENCES

C.J.S.

- 73B C.J.S., Public Utilities, §§ 15, 18-22, 45-49, 53-55.

ALR.

- Power of federal government over intrastate rates, 14 A.L.R. 454; 22 A.L.R. 1100.

Power of Public Service Commission to increase franchise rates, 28 A.L.R. 587; 29 A.L.R. 356.

Validity, construction, and effect of provisions for the appropriation of excess income of public utility, 33 A.L.R. 488.

Service contract by public utility in consideration of conveyance of property by individual or private corporations as affected by public utility acts, 41 A.L.R. 257.

Power of state or municipality to fix minimum public utility rates, 68 A.L.R. 1002.

Profit factor in determining rates for municipally owned or operated public utility, 90 A.L.R. 700.

Allowance in fixing rates of public utility for depletion or amortization in respect of natural resources, 91 A.L.R. 1413.

Right of customers of public utility with respect to fund representing a refund from another supplying utility upon reduction of latter's rates, 18 A.L.R.2d 1343.

Variations of utility rates based on flat and meter rates, 40 A.L.R.2d 1331.

Validity of "fuel adjustment" or similar clauses authorizing electric utility to pass on increased cost of fuel to its customers, 83 A.L.R.3d 933.

Advertising or promotional expenditures of public utility as part of operating expenses for ratemaking purposes, 83 A.L.R.3d 963.

Public utility's right to recover cost of nuclear power plants abandoned before completion, 83 A.L.R.4th 183.

46-2-25.1. County-wide local calling; modification of existing rate schedules; plans for implementing service; methods of funding; rate-making power of commission not affected.

  1. Except as provided in subsection (b) of this Code section, on and after July 1, 1990, the commission shall not approve any rate schedule which authorizes a long-distance charge for calls between two telephones within the same county.Where two or more telephone companies operate in the same county, each company shall provide county-wide local calling to and from telephones within the area served by the other company or companies in the county. Rate schedules approved prior to July 1, 1990, shall be amended to comply with this Code section by not later than July 1, 1991.
  2. All rate schedules approved pursuant to this Code section may be modified at the discretion of the commission upon a good and sufficient showing of geographic, economic, or technological infeasibility by a telephone company.
  3. All rate schedules approved pursuant to this Code section shall take into account the following:
    1. The reasonable cost of providing such service to customers of the telephone company throughout the entire service area of such telephone company and the increased value resulting from such expanded calling areas;
    2. The average annual contributions made by such telephone company to the intra-LATA toll pool if such pool exists; and
    3. The reasonable rate of return on investment authorized in the rate schedule approved by the commission for such telephone company.
  4. The commission shall, on or before December 31, 1990, implement a plan whereby all telephone companies subject to its jurisdiction will provide to each telephone subscriber, in addition to its present service arrangements and the intracounty service mandated under the provisions of this Code section, expanded community of interest toll free calling beyond county boundary lines and/or a reduction in intra-LATA toll rates to a level comparable to present inter-LATA toll rates.
  5. Any plan to implement county-wide local calling shall be subject to the approval of the commission.In developing a plan, the commission shall require telephone companies to enter into negotiations to provide for county-wide local calling throughout their service areas.If the companies are unable to reach an agreement within a time frame consistent with the requirements of this Code section and the instructions of the commission, the commission may impose its own plan.The commission shall have the authority to determine the method of funding this service.In determining the method of funding this service, the commission shall first utilize any available earnings of the telephone companies in excess of those authorized in their respective tariffs; provided, however, that the commission shall not mandate any plan that requires the transfer of funds to implement county-wide local calling from one telephone company to another unless or until all other remedies are exhausted. Any telephone company seeking to recover any portion of its expenses or lost toll revenues resulting from the implementation of such county-wide local calling plan shall demonstrate its financial hardship to the commission before such recovery shall be allowed.It shall be within the discretion of the commission to determine the methodology and source of recovery for any such affected telephone company. Such methodology and source may include, but not be limited to, increases in the affected telephone company's rates and charges, sharing of lost revenues and increased expenses by any other telephone company included in the plan under review, and any other methodology which has as its goal the maintenance of reasonable telephone rates for all subscribers in the state.
  6. The commission shall be authorized to consider and adopt alternative forms of regulation for telephone companies which may include, but will not be limited to, establishing plans which require the sharing with its subscribers of telephone company earnings above preestablished levels or regulating the maximum prices of basic local exchange services for which there are no readily available substitutes.In determining what actions, if any, are to be taken under this subsection, the commission shall consider the factors contained in subsection (c) of Code Section 46-2-23.
  7. Nothing in this Code section shall be interpreted as amending, modifying, or repealing Code Section 46-2-23, relating to the rate-making power of the commission generally and special provisions concerning telecommunications companies.

(Code 1981, §46-2-25.1, enacted by Ga. L. 1990, p. 1672, § 1.)

Code Commission notes.

- Pursuant to Code Section § 28-9-5, in 1991, "Code section" was substituted for "Code Section" near the beginning of subsection (g).

Law reviews.

- For note on 1990 enactment of this Code section, see 7 Ga. St. U.L. Rev. 352 (1990).

JUDICIAL DECISIONS

Violations of O.C.G.A. § 46-2-25.1 or O.C.G.A. § 46-2-25.2 did not impose any duties or obligations upon telecommunication providers, a violation of which would give rise to a cause of action under O.C.G.A. § 46-2-90. Lange v. Standard Tel. Co., 243 Ga. App. 301, 533 S.E.2d 162 (2000).

46-2-25.2. Sixteen-mile toll-free telephone calling; modification of rate schedules; recovery of expenses or lost revenues by telephone companies; rate-making power of Public Service Commission not affected.

  1. It is the goal of this Code section to provide for toll-free calling between two telephones where the central offices serving such telephones are within 16 miles of each other.
  2. Except as provided in subsection (e) of this Code section, on and after July 1, 1992, the Public Service Commission shall not approve any new rate schedule which authorizes a long-distance charge for calls between two telephones where the central offices serving such telephones are within 16 miles of each other.
  3. Except as provided in subsection (e) of this Code section, on and after July 1, 1992, rate schedules approved by the Public Service Commission prior to July 1, 1992, shall be amended so as to reduce by one-half the long-distance charge for calls between two telephones where the central offices serving such telephones are within 16 miles of each other.
  4. On or before July 1, 1993, the Public Service Commission shall conduct hearings and accept evidence and upon consideration of such evidence shall determine any further reductions in long-distance charges for calls between two telephones where the central offices serving such telephones are within 16 miles of each other.Such determination shall consider the availability of funds and other revenue sources to affected companies to offset the costs associated with such further reductions.
  5. All rate schedules approved pursuant to this Code section may be modified at the discretion of the Public Service Commission upon a good and sufficient showing of geographic, economic, or technological infeasibility by a telephone company.
  6. All rate schedules approved pursuant to this Code section shall take into account the following:
    1. The reasonable cost of providing such service to customers of the telephone company throughout the entire service area of such telephone company and the increased value resulting from such expanded calling areas; and
    2. The reasonable rate of return on investment authorized in the rate schedule approved by the Public Service Commission for such telephone company.
  7. Any telephone company seeking to recover any portion of its expenses or lost toll revenues resulting from the implementation of the 16 mile toll free calling plan contained in this Code section shall demonstrate its financial hardship to the Public Service Commission before such recovery shall be allowed.It shall be within the discretion of the Public Service Commission to determine the methodology and source of recovery for any such affected telephone company.In determining the method of offsetting the costs associated with the 16 mile plan, the Public Service Commission shall first utilize any available earnings at the telephone companies seeking assistance in excess of those authorized in their respective tariffs.Such methodology and source for offsetting costs shall include but not be limited to recovery from the Universal Service Fund as permitted under Code Section 50-5-200.
  8. Nothing in this Code section shall be interpreted as amending, modifying, or repealing Code Section 46-2-23, relating to the rate-making power of the Public Service Commission generally and special provisions concerning telecommunications companies.

(Code 1981, §46-2-25.2, enacted by Ga. L. 1992, p. 480, § 2; Ga. L. 2004, p. 631, § 46.)

The 2004 amendment, effective May 13, 2004, part of an Act to revise, modernize, and correct the Code, revised punctuation in subsection (a).

Editor's notes.

- Code Section 50-5-200, referred to in this Code section, was repealed by Ga. L. 2008, p. 1015, § 10.

JUDICIAL DECISIONS

Violations of O.C.G.A. § 46-2-25.1 or O.C.G.A. § 46-2-25.2 did not impose any duties or obligations upon telecommunication providers, a violation of which would give rise to a cause of action under O.C.G.A. § 46-2-90. Lange v. Standard Tel. Co., 243 Ga. App. 301, 533 S.E.2d 162 (2000).

46-2-25.3. Toll-free calls within 22 miles of exchange; hearings; "net gain" defined.

  1. On and after June 1, 1998, there shall be toll-free calling between two telephones within a 22 mile radius of an exchange serving such telephones as such 22 mile calling areas are designated on maps on file with the commission in any local exchange as provided in subsection (b) or (c) of this Code section; provided, however, that the provisions of this Code section shall not apply to a subscriber who has elected an optional plan. Such calls made in the 22 mile radius shall be considered local calls. Nothing in this subsection shall preclude the offer of optional rate plans.
    1. For each telephone company which has not elected to have its rates, terms, and conditions for services determined pursuant to the alternative regulation provided for in Article 4 of Chapter 5 of this title, the Public Service Commission may conduct hearings and accept evidence and, upon consideration of such evidence, shall determine if any telephone company should be authorized to increase its rates for basic exchange service to cover the reasonable costs of providing such toll-free service to customers of the telephone company throughout the 22 mile calling areas and to continue a reasonable rate of return on investment authorized in the rate schedule previously approved by the Public Service Commission for such telephone company. Such determination shall consider the availability of funds and other revenue sources to affected companies to offset the costs associated with such toll-free calling areas. It shall be within the discretion of the Public Service Commission to determine the methodology and source of recovery for any such affected telephone company. In determining the method of offsetting the costs associated with the 22 mile plan, the Public Service Commission shall first utilize any available earnings at the telephone companies seeking assistance in excess of those authorized in their respective tariffs. The commission shall be authorized to approve any increase in rates which the commission determines to be necessary to implement and accomplish the toll-free calling requirements of this Code section.
    2. If the rate of increase determined pursuant to paragraph (1) of this subsection does not exceed $2.00 or 25 percent of the basic service rate then in effect, the commission shall require the concurrent implementation of a 22 mile toll-free expanded calling area and the increase in basic local exchange service rates for that exchange, and the local exchange company shall be permitted to increase the basic local exchange service rates notwithstanding any provision of Chapter 5 of this title to the contrary.
    3. If the rate of increase determined pursuant to paragraph (1) of this subsection exceeds $2.00 or 25 percent of the basic service rate then in effect, the commission shall conduct balloting of the subscribers in each local exchange proposed to receive the 22 mile toll-free expanded calling area service. If a majority of those subscribers who return ballots is in favor of both the service and the requisite increase in basic local exchange service rates, the commission shall require the concurrent implementation of a 22 mile toll-free expanded calling area and the increase in basic local exchange service rates for that exchange, and the local exchange company shall be permitted to increase the basic local exchange service rates notwithstanding any provision of Chapter 5 of this title to the contrary.
    1. For each telephone company which has elected to have its rates, terms, and conditions for services determined pursuant to the alternative regulation provided for in Article 4 of Chapter 5 of this title, the commission shall determine for each local exchange company the increase in rates for basic local exchange services necessary to recover fully all revenues which would be lost if a 22 mile toll-free expanded calling area were implemented in that local exchange.
    2. If the rate of increase determined pursuant to paragraph (1) of this subsection does not exceed $2.00 or 25 percent of the basic service rate then in effect, the commission shall require the concurrent implementation of a 22 mile toll-free expanded calling area and the increase in basic local exchange service rates for that exchange, and the local exchange company shall be permitted to increase the basic local exchange service rates notwithstanding any provision of Chapter 5 of this title to the contrary.
    3. If the rate of increase determined pursuant to paragraph (1) of this subsection exceeds $2.00 or 25 percent of the basic service rate then in effect, the commission shall conduct balloting of the subscribers in each local exchange proposed to receive the 22 mile toll-free expanded calling area service. If a majority of those subscribers who return ballots is in favor of both the service and the requisite increase in basic local exchange service rates, the commission shall require the concurrent implementation of a 22 mile toll-free expanded calling area and the increase in basic local exchange service rates for that exchange, and the local exchange company shall be permitted to increase the basic local exchange service rates notwithstanding any provision of Chapter 5 of this title to the contrary.
    1. As used in this subsection, the term "net gain" means the net revenue impact from the implementation less costs incurred as a result of the implementation of a 22 mile toll-free calling area.
    2. The commission shall adopt a methodology to provide that any net gain which a telecommunications company experiences as a result of implementing this Code section be passed on to end user customers.
  2. Nothing in this Code section shall be interpreted as amending, modifying, or repealing Code Section 46-2-23, relating to the rate-making power of the Public Service Commission generally and special provisions concerning telecommunications companies, or Article 4 of Chapter 5 of this title, "The Telecommunications and Competition Development Act of 1995."

(Code 1981, §46-2-25.3, enacted by Ga. L. 1997, p. 1056, § 1; Ga. L. 1998, p. 128, § 46.)

46-2-26. Restriction as to utilization of fuel-adjustment tariffs; procedure for rate change by utility based solely on change in fuel costs; extent of commission's power over rate changes; disclosure requirements for utilities seeking rate change.

  1. As used in this Code section, the term:
    1. "Fuel costs" of a utility company means the cost of fuel as defined in the utility company's tariffs in effect on July 1, 1979, as such tariffs may be changed from time to time by order of the commission as provided by law.
    2. "Utility" means any retail supplier of electricity subject to the rate-making jurisdiction of the commission.
  2. No utility regulated by the commission shall automatically increase any customer's billing for intrastate utility services by reason of application of any fuel adjustment tariff. Rate changes based solely on increases or decreases in the cost of fuel may be determined as set forth in this Code section. Code Section 46-2-25 shall not apply to proceedings conducted pursuant to this Code section.
  3. On or before May 15, 1979, each utility shall file with the commission an estimate of fuel costs and an estimate of retail sales for the three calendar months beginning on July 1, 1979, and proposed base rate tariffs to recover those costs. Thereafter, a utility may change its base rates solely because of increased or decreased fuel costs only after filing with the commission an estimate of its fuel costs and retail sales for the next three consecutive calendar months and proposed base rates to recover those costs, adjusted as required by subsection (g) of this Code section.
  4. Not less than ten days after any such filings or after a commission show-cause order concerning such base rates, the commission shall conduct a public hearing on the information so filed for the purpose of determining its accuracy. The utility's testimony shall be under oath and shall, with any corrections thereto, constitute the utility's affirmative case. At any hearing conducted pursuant to this Code section, the burden of proof to show that an increased rate, based on fluctuations in fuel costs, is just and reasonable shall be upon the utility. Formal intervention by customers of the utility shall be permitted. The staff of the commission and formal intervenors shall have the right to examine all utility records used in the preparation of the testimony and exhibits of the utility, to cross-examine utility witnesses, and to present rebuttal testimony, subject to cross-examination by all parties.
  5. Following such hearing, the commission shall issue an order stating the base rates to be used by the utility during the next three consecutive calendar months, or until changed as provided in this Code section. Should the commission fail or refuse to issue such order by the ninetieth day after the utility's filing, the base rates proposed by the utility shall thereupon be deemed adopted by operation of law.
  6. Each utility shall compute, record, and report to the commission monthly the most current data available showing the monthly and accumulated overrecovery or underrecovery of actual fuel costs resulting from application of its base rates.
  7. Each base rate amendment shall include an adjustment based on actual expense to date in order that the accumulated retail fuel costs of the utility shall equal, as nearly as possible, the revenues recovered pursuant to the fuel recovery allowance contained in its base rates. The resulting adjustment in the charge, if any, shall be made to the nearest 0.0001› per kilowatt hour.
  8. The commission shall disallow and make appropriate adjustment for any reported fuel cost that is the result of illegal or clearly imprudent conduct on the part of the utility.
  9. All commission orders issued pursuant to this Code section shall contain the commission's findings of fact and conclusions of law upon which the commission's action is based. Such order shall be deemed a final order subject to judicial review under Chapter 13 of Title 50, the "Georgia Administrative Procedure Act."
  10. The commission shall not prohibit or limit the operation of a rate schedule or other tariff of a utility to the extent that it permits rate increases or decreases to adjust for increased or decreased purchased power costs, where such increased or decreased purchased power costs shall have become effective under the procedures of a federal regulatory agency or under a contract approved by a federal regulatory agency. Any subsequent refunds received by any such utility with respect to any such increased purchased power costs which become effective under procedures of a federal regulatory agency, or otherwise, shall be refunded by the utility to its customers in the manner directed by the commission.
  11. In filing any estimate of fuel costs under subsection (c) of this Code section, each utility shall disclose the name and address of each person from whom the utility expects to purchase fuel or the transportation of fuel during the period covered by such estimate. Each such filing shall also disclose, when applicable, any financial interest the utility has in any firm or corporation expected to supply or transport fuel to the utility during the period covered by the estimate. It shall be the duty of the commission to make public at each public hearing held pursuant to subsection (d) of this Code section any information disclosed by a utility pursuant to the requirements of this subsection. It shall constitute a financial interest within the meaning of this subsection:
    1. For any member of the board of directors of the utility to be a member of the board of directors of a corporation supplying or transporting fuel to the utility;
    2. For any member of the board of directors of the utility to be the proprietor of or a partner in any business supplying or transporting fuel to the utility; or
    3. For any member of the board of directors of the utility, or for the utility itself, to own 10 percent or more of the stock of any corporation supplying or transporting fuel to the utility.

(Code 1933, § 93-307.2, enacted by Ga. L. 1979, p. 1312, § 1; Ga. L. 1984, p. 22, § 46; Ga. L. 2002, p. 475, § 3.)

The 2002 amendment, effective April 25, 2002, substituted "ninetieth day" for "forty fifth day" in the last sentence of subsection (e).

Editor's notes.

- Ga. L. 2002, p. 475, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Natural Gas Consumers' Relief Act.'"

Law reviews.

- For note on the 2002 enactment of this chapter, see 19 Ga. St. U.L. Rev. 285 (2002).

JUDICIAL DECISIONS

Cited in National Council on Comp. Ins. v. Caldwell, 154 Ga. App. 528, 268 S.E.2d 793 (1980).

RESEARCH REFERENCES

ALR.

- Validity of service charge for gas meter, 20 A.L.R. 225.

Allowance in fixing rates of public utility for depletion or amortization in respect of natural resources, 91 A.L.R. 1413.

Public utility's right to recover cost of nuclear power plants abandoned before completion, 83 A.L.R.4th 183.

46-2-26.1. Accounting methods to be used by electric utilities in rate-making proceedings.

  1. The accounting treatments specified in this Code section shall apply in any proceeding before the commission to determine the rates to be charged by an electric utility.
  2. In any proceeding to determine the rates to be charged by an electric utility, the electric utility shall file jurisdictionally allocated cost of service data on the basis of a test period, and the commission shall utilize a test period, consisting of actual data for the most recent 12 month period for which data are available, fully adjusted separately to reflect estimated operations during the 12 months following the utility's proposed effective date of the rates. After the initial filing and until new rates go into effect, the utility shall file actual cost of service data as they become available for each month following the actual data which were filed. The utility shall have the burden of explaining and supporting the reasonableness of all estimates and adjustments contained in its cost of service data.
  3. In any case after March 2, 1981, in which an electric utility transfers partial or total ownership of any electric plant, the electric utility shall return to its ratepayers, in such manner as the commission may prescribe, the ratepayers' cash contribution to the cost of construction, plus the income taxes paid, accrued, and collected by the electric utility in respect thereof, and a portion of the profit, if any, on such transfer.
    1. The ratepayers' contribution to the cost of construction shall be determined by first multiplying the amount of construction and preconstruction expenditures included in the rate base by the authorized return allowed by the commission for the electric utility on the jurisdictional rate base during the period or periods such expenditures were included in the rate base, and then subtracting therefrom any carrying costs capitalized in respect of such construction and preconstruction expenditures included in the rate base. In the event an electric utility transfers partial or total ownership of any electric plant after it has commenced commercial operation, the ratepayers' contribution to the cost of construction shall be reduced in proportion to the remaining life of the electric plant.
    2. The profit, if any, on such transfer shall be allocated between the electric utility and its ratepayers in proportion to their respective contributions to the cost of construction. For the purposes of this calculation, the ratepayers' contribution shall be determined as provided by paragraph (1) of this subsection. The electric utility's contribution shall be the cost, including carrying costs, of the transferred electric plant as recorded on the books and records of the electric utility. The amount of profit, if any, shall be determined by deducting the sum of the ratepayers' and the electric utility's contributions to the cost of construction from the gross proceeds of the transfer.

(Code 1933, § 93-307.3, enacted by Ga. L. 1981, p. 121, § 5.)

JUDICIAL DECISIONS

Recovery of costs of demand-side programs.

- The commission had authority under O.C.G.A. § 46-3A-9 to allow a utility to recover the costs of demand-side energy conservation programs and interruptible service credits through riders or surcharges outside of a general rate case and the test year statute. Georgia Power Co. v. Georgia Indus. Group, 214 Ga. App. 196, 447 S.E.2d 118 (1994).

Test period.

- The commission was not required to comply with the test period requirements of O.C.G.A. § 46-2-26.1 at a hearing to consider a utility's proposed alternate rate plan that did not recommend or request any rate changes for customers. Georgia Public Serv. Comm'n v. Campaign for a Prosperous Ga., 229 Ga. App. 28, 492 S.E.2d 916 (1997).

RESEARCH REFERENCES

ALR.

- Amount paid by public utility to affiliate for goods or services as includable in utility's rate base and operating expenses in rate proceeding, 16 A.L.R.4th 454.

Public utility's right to recover cost of nuclear power plants abandoned before completion, 83 A.L.R.4th 183.

46-2-26.2. Tax accounting by utilities in rate-making proceedings.

For purposes of determining a utility's cost of service in rate-making proceedings, the income tax expense portion shall be calculated on the basis of net income before income taxes. Any difference between income based on the utility's accounting records and income determined in accordance with United States Internal Revenue Service laws and regulations will be accounted for as required by generally accepted accounting principles governing all businesses.

(Code 1933, § 93-307.4, enacted by Ga. L. 1981, p. 121, § 5.)

46-2-26.3. Recovery of costs of conversion from oil-burning to coal-burning generating facility; filing of request; public hearing; determination of rate; adjustments.

  1. A utility regulated by the Public Service Commission which has 25 percent or more of its total generating capacity as oil-fired generation and operates any electric generating facility which was in the process of being converted on January 1, 1982, and which will be converted and in commercial operation as a coal-fired facility on or before December 31, 1982, after conversion from oil to coal-fired operation may file with the commission an application to determine the appropriate rate to recover the cost of conversion and to demonstrate the fuel cost savings resulting from said conversion.
  2. For the purposes of this Code section, the following words or terms shall have the following meanings:
    1. "Coal" shall mean coal used as a primary energy source.
    2. "Commission" shall mean the Georgia Public Service Commission.
      1. "Cost of conversion" shall mean costs as determined by the commission to be reasonable and necessary for the conversion of an oil-burning electric generating facility to the burning of coal. Such costs shall include, but not be limited to, engineering, administrative, and legal costs, the cost of environmental studies and control equipment, coal-handling and storage equipment, including rail facilities, equipment and facilities necessary to permit the combustion of coal, the cost of retrofitting or refurbishing boilers to permit the combustion of coal, the cost of on-site and off-site facilities for handling, storing, and disposing of wastes resulting from the combustion of coal, and the cost of all other facilities reasonable and necessary to allow the conversion of an oil-burning electric generating facility to burn coal. Such costs shall also include the reasonable cost of capital for such conversion and for carrying the cost of such conversion until such costs are recovered as provided in this Code section. In no case shall cost of conversion include any costs incurred pursuant to an expansion of an electric generating facility's generating capacity above the generating capacity of said facility that existed prior to the conversion from oil to coal.
      2. "Cost of conversion" shall not include the amount financed by the company through tax-exempt pollution control bonds, if any, of any portion of the project certified by the Environmental Protection Division of the Department of Natural Resources, or other agency vested with similar authority, to be a pollution control facility and therefore eligible for financing under Section 103 of the Internal Revenue Code and the regulations thereunder or other similar law or regulation now or hereafter adopted.
    3. "Fuel cost savings" shall mean the amount of fuel savings to be obtained by operating the facility converted from oil to coal-fired operation during the facility's first full 12 months of operation using coal as its primary fuel as compared to the operation of such facility on oil, had it been so operated, during the same 12 month period.
    4. "Utility" shall mean any retail supplier of electricity subject to the rate-making jurisdiction of the commission.
  3. Any utility meeting the qualifications under subsection (a) of this Code section may file with the commission a request to establish an appropriate adjustment in its rates and charges in order to recover the costs of conversion of an oil-burning generating facility to coal-fired operation as provided herein. After receipt of such filing, the commission shall hold a public hearing to determine the cost of conversion of the generating facility and the fuel cost savings anticipated. Unless it is determined by the commission that the cost of conversion will be less than the projected fuel cost savings accruing to retail customers over the remaining life of the generating facility, no further action shall be taken by the commission. Upon making such determination that the fuel cost savings exceed the cost of conversion, the commission shall then determine the appropriate rate to recover the cost of conversion as provided in subsection (d) of this Code section.
  4. In determining the appropriate rate, the commission shall consider the cost of conversion, and an appropriate period of time, but not more than seven years, to amortize such cost. The appropriate rate shall be an amount which is not less than the amount necessary to amortize the cost of conversion, as herein defined over a period of not more than seven years on a per kilowatt-hour basis taking into consideration the estimated kilowatt hours to be generated for sale by the utility during the first full 12 months in operation of the facility. In determining the rate to recover the cost of conversion, the commission shall permit recovery by the utility of the cost of conversion net of such federal, state, or local taxes based on revenue and income which may be imposed upon the utility for receipt of proceeds of the fuel-savings-allocation which cannot be reasonably avoided by the utility using due diligence. All revenues derived through the rate herein provided shall be applied solely to the cost of conversion of said facility.
  5. The utility shall compute, record, and report to the commission monthly the amount collected under any rate herein authorized and the amount applied to the cost of conversion and the balance remaining to be recovered.
  6. Upon recovery by the utility of the cost of conversion as herein provided, the utility shall no longer charge any rate authorized to recover the cost of conversion. Upon such termination, the utility shall file a report with the commission within 30 days, sworn to by an officer of the utility, that its fuel-savings-allocation revenues are in compliance with all commission orders issued pursuant to this Code section. In the event such revenue is lesser or greater than the utility's cost of conversion, the commission shall make such determinations and issue such orders as are necessary to result in the full recovery, but no more, of the cost of conversion.
  7. In the event the utility should become entitled, by reason of the conversion, to any federal or state grant and receive same, the commission shall make such determinations and issue such orders as are necessary to reduce the amount of conversion costs which the utility would otherwise recover by means of the rate provided herein. If such grant is received after termination of such adjustment, the utility shall promptly report such receipt and the commission shall make such determinations and issue such orders as are necessary to result in the utility receiving no more than the cost of conversion after taking into account such grant.
  8. Once the utility charges the rate to recover the cost of conversion, the commission shall not recognize for rate-making purposes any costs of conversion which are recovered by the utility through the rate provided herein.
  9. At any hearing or any proceeding under this Code section formal intervention by customers of the utility shall be permitted. All commission orders issued pursuant to this Code section shall be rendered within 180 days from the date of any filing or the institution of any proceeding hereunder and shall contain, unless waived by all parties, the commission's findings of fact and conclusions of law upon which the commission's action is based. Such order shall be deemed a final order subject to judicial review under Chapter 13 of Title 50, known as the "Georgia Administrative Procedure Act."
  10. Any recovery of costs of conversion provided or allowed hereunder shall not affect the recovery of fuel costs provided in Code Section 46-2-26.

(Code 1933, § 93-307.5, enacted by Ga. L. 1982, p. 412, § 1; Code 1981, §46-2-26.3, enacted by Ga. L. 1982, p. 412, § 2; Ga. L. 1983, p. 3, § 35; Ga. L. 1984, p. 22, § 46; Ga. L. 1987, p. 191, § 9; Ga. L. 1989, p. 14, § 46; Ga. L. 1992, p. 6, § 46; Ga. L. 2014, p. 866, § 46/SB 340; Ga. L. 2015, p. 1088, § 36/SB 148.)

The 2014 amendment, effective April 29, 2014, part of an Act to revise, modernize, and correct the Code, deleted the extra subsection (b) designation preceding subparagraph (3)(A).

The 2015 amendment, effective July 1, 2015, in subsection (f), deleted "and the consumers' utility counsel" following "file a report with the commission" near the beginning of the second sentence.

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 1988, "consumers' utility counsel" was substituted for "Consumers' Utility Counsel" in subsection (f).

Editor's notes.

- Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, provides that this Act is applicable to taxable years ending on or after March 11, 1987, and that a taxpayer with a taxable year ending on or after January 1, 1987, and before March 11, 1987, may elect to have the provisions of that Act apply.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that tax, penalty, and interest liabilities and refund eligibility for prior taxable years shall not be affected by that Act.

Ga. L. 1987, p. 191, § 10, not codified by the General Assembly, also provided that provisions of the federal Tax Reform Act of 1986 and of the Internal Revenue Code of 1986 which as of January 1, 1987, were not yet effective become effective for purposes of Georgia taxation on the same dates as they become effective for federal purposes.

Ga. L. 2015, p. 1088, § 36/SB 148, effective July 1, 2015, purported to revise this Code section but only amended subsection (f).

JUDICIAL DECISIONS

Constitutionality.

- O.C.G.A. § 46-2-26.3 is not unconstitutional as a special law for which provision has been made by existing general law because O.C.G.A. § 46-2-23 does not divest the General Assembly of its power to regulate public utilities. Lasseter v. Georgia Pub. Serv. Comm'n, 253 Ga. 227, 319 S.E.2d 824 (1984).

O.C.G.A. § 46-2-26.3 does not create an unconstitutional classification although its application is in fact limited to only one plant, because it is possible to conclude that O.C.G.A. § 46-2-26.3 does not confer a special benefit upon the utility. Lasseter v. Georgia Pub. Serv. Comm'n, 253 Ga. 227, 319 S.E.2d 824 (1984).

46-2-26.4. Accounting procedures in gas utility rate proceedings.

  1. The accounting treatments specified in this Code section shall apply in any proceeding before the commission to determine the rates to be charged by a gas utility.
  2. In any proceeding commenced after April 1, 2002, to determine the rates to be charged by a gas utility, the gas utility shall file jurisdictionally allocated cost of service data on the basis of a test period, and the commission shall utilize a test period, consisting of actual data for the most recent 12 month period for which data are available, fully adjusted separately to reflect estimated operations during the 12 months following the proposed effective date of the rates. After the initial filing, and until new rates go into effect, the utility shall file actual cost of service data as they become available for each month following the actual data which were filed. The utility shall have the burden of explaining and supporting the reasonableness of all estimates and adjustments contained in its cost of service data.

(Code 1981, §46-2-26.4, enacted by Ga. L. 1991, p. 1705, § 1; Ga. L. 2002, p. 475, § 4.)

The 2002 amendment, effective April 25, 2002, in the first sentence of subsection (b), inserted "commenced after April 1, 2002," near the beginning and substituted "12 months following the" for "12 month period commencing five months from the" near the end.

Editor's notes.

- Ga. L. 2002, p. 475, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Natural Gas Consumers' Relief Act.'"

Law reviews.

- For note on the 2002 enactment of this chapter, see 19 Ga. St. U.L. Rev. 285 (2002).

JUDICIAL DECISIONS

Cited in Atlanta Gas Light Co. v. Georgia Pub. Serv. Comm'n, 212 Ga. App. 575, 442 S.E.2d 860 (1994).

46-2-26.5. Gas supply plans and adjustment factors; filings and hearing procedures; recovery of purchase gas cost.

  1. As used in this Code section, the term:
    1. "Adjustment factor" means a factor used pursuant to a purchased gas adjustment rate to recover purchased gas costs.
    2. "Commission" means the Georgia Public Service Commission.
    3. "Firm customer" means a customer who purchases gas from a gas utility on a firm basis which ordinarily is not subject to interruption or curtailment.
    4. "Gas supply plan" means the particular array of available gas supply, storage, and transportation options selected by a gas utility to supply the requirements of its firm customers.
    5. "Gas utility" means a gas utility subject to the jurisdiction of the commission.
    6. "Purchased gas adjustment rate" means a purchased gas adjustment rider or similar rate, provision, or clause in the tariff of a gas utility pursuant to which purchased gas costs are billed to the firm customers of the gas utility.
    7. "Purchased gas costs" means all costs incurred by a gas utility for the purpose of acquiring gas delivered to its system in order to supply its firm customers, including without limitation the costs incurred in purchasing gas from sellers; the costs incurred in transactions involving rights to buy and sell gas; the costs incurred in gathering gas for transportation to the gas utility; the costs incurred in transporting gas to the facilities of the gas utility; the costs incurred in acquiring and using gas storage service from others, including the costs of injecting and withdrawing gas from storage; and all charges, fees, and rates incurred in connection with such purchases, rights, gathering, storage, and transportation.
    8. "Recovery year" means the 12 calendar months commencing October 1, 1994, and ending September 30, 1995, and each succeeding 12 calendar month period thereafter.
  2. Commencing October 1, 1994, the requirements of this Code section shall apply to any purchased gas adjustment rate.The requirements of Code Section 46-2-25 shall not apply to filings made or proceedings conducted pursuant to this Code section.
  3. On or before August 1 of each year, each gas utility shall file with the commission its gas supply plan for the following recovery year.The gas utility shall include with such filing the adjustment factors it proposes for recovering its purchased gas costs during such following recovery year, together with the calculations that produced such factors.
  4. Not less than ten days after any such filing by a gas utility, the commission shall conduct a public hearing on such filing. The gas utility's testimony shall be under oath and shall, with any corrections thereto, constitute the gas utility's affirmative case.At any hearing conducted pursuant to this Code section, the burden of proof to show that the proposed gas supply plan and adjustment factors are appropriate shall be upon the gas utility.
  5. Following such a hearing, the commission shall issue an order approving the gas supply plan filed by the gas utility or adopting a gas supply plan for the gas utility that the commission deems appropriate. In addition, the commission in its order shall approve the adjustment factors proposed by the gas utility or adopt adjustment factors that the commission deems appropriate. The adjustment factors approved or adopted by the commission, or otherwise made effective under this Code section, shall be applied uniformly to all firm customers upon the effective date of such factors. The adjustment factors to be effective during the recovery year commencing October 1, 1994, shall be set at levels appropriate to account for underrecoveries or overrecoveries, if any, under the purchased gas adjustment rate of the gas utility in effect prior to October 1, 1994. The adjustment factors to be applicable during each recovery year commencing October 1, 1995, and thereafter, shall be set at levels appropriate to account for underrecoveries or overrecoveries during the preceding recovery year. Should the commission fail or refuse to issue an order by the ninetieth day after the gas utility's filing which either approves the gas supply plan filed by the gas utility or adopts a different gas supply plan for the gas utility, the gas supply plan proposed by the gas utility shall thereupon be deemed approved by operation of law. Similarly, should the commission fail or refuse to issue an order by such date which either approves the adjustment factors proposed by the gas utility or adopts different adjustment factors for the gas utility, the adjustment factors proposed by the gas utility shall thereupon be deemed approved by operation of law.
  6. The provisions of law relating to parties, intervention, and discovery in proceedings before the commission shall apply with respect to proceedings under this Code section.
  7. Each gas utility shall file with the commission monthly its actual monthly purchased gas costs and accumulated purchased gas costs during the recovery year.The gas utility shall include in such filing information which demonstrates whether such purchased gas costs were incurred in accordance with a gas supply plan which had become effective in accordance with the provisions of this Code section.
  8. Each gas utility shall also file with the commission monthly the most current data available showing the monthly and accumulated overrecoveries or underrecoveries of actual purchased gas costs resulting from application of its purchased gas adjustment rate.
  9. At least every three calendar months, the gas utility shall file proposed revisions to the adjustment factors based on actual unrecovered purchased gas costs in order that the revenues to be recovered pursuant to such rate during the remainder of the current recovery year shall equal, as nearly as possible, the gas utility's unrecovered purchased gas costs through the end of such recovery year.The revisions to the adjustment factors, if any, shall be made to the nearest 0.01› per therm.Unless the commission directs otherwise, such revised adjustment factors shall become effective on the first day of the first calendar month that begins at least 15 days after the date of such filing.
  10. All commission orders issued pursuant to this Code section shall contain the commission's findings of fact and conclusions of law upon which the commission's action is based.Any such order shall be deemed a final order subject to judicial review under Chapter 13 of Title 50, the "Georgia Administrative Procedure Act."
  11. The commission shall not prohibit or limit the operation of a purchased gas adjustment rate of a gas utility to the extent that the adjustment permits increases or decreases to adjust for increased or decreased purchased gas costs when such increased or decreased purchased gas costs shall have become effective under the procedures of a federal regulatory agency or under a contract approved by a federal regulatory agency. Any subsequent refunds received by a gas utility with respect to any such increased purchased gas costs which become effective under procedures of a federal regulatory agency, or otherwise, shall be treated by the gas utility in such manner as the commission may direct.
  12. Any purchased gas costs which are incurred by a gas utility in accordance with a gas supply plan which was in effect pursuant to the provisions of this Code section at the time such costs were incurred may be recovered by the gas utility under its purchased gas adjustment rate and shall not be disallowed retroactively by the commission nor by any court which reviews the action of the commission in the absence of fraud or willful misconduct on the part of the gas utility; provided, however, that the commission may disallow and make appropriate adjustments for any purchased gas costs that were not incurred in accordance with such a gas supply plan if the same resulted in higher purchased gas costs and were the result of clearly imprudent conduct on the part of the gas utility.The provisions of this Code section shall not prohibit the commission from authorizing a gas utility to recover under a purchased gas adjustment rate costs or amounts in addition to purchased gas costs, nor shall the provisions of this Code section prohibit the commission from removing from purchased gas costs those costs incurred by a gas utility for the purpose of acquiring gas to supply customers who are not firm customers.
  13. After a gas supply plan has become effective under the provisions of this Code section as a result of a proceeding before the commission, the commission shall retain jurisdiction of the proceeding for the balance of the recovery year for the purposes set forth in this subsection.Upon the application of the affected gas utility or upon its own initiative, the commission may, after affording due notice and opportunity for hearing to the affected gas utility and the intervenors in the proceeding, amend the gas supply plan of the affected gas utility for the remainder of the recovery year. The amended gas supply plan shall become effective upon the date of the commission's order and shall not have retroactive effect.

(Code 1981, §46-2-26.5, enacted by Ga. L. 1994, p. 630, § 2; Ga. L. 2006, p. 709, § 1/SB 209.)

The 2006 amendment, effective July 1, 2006, substituted "ninetieth day" for "forty-fifth day" in the sixth sentence of subsection (e).

46-2-27. Notation on bill of charges for fuel adjustment, meter reading and consumption, and where rates charged may be obtained.

Upon the face or back of each periodic and terminal billing for retail consumption of electric, gas, and water services, there shall appear a conspicuous notation of charges for fuel adjustment and a notation of the meter reading upon which the billing was computed, including the previous reading and consumption. Where a customer is on a voluntary "budget bill" or "levelized bill" agreement, the actual consumption for any period of time may be omitted until the annual anniversary account billing. The rates on which the bill was computed shall be made readily available to the customer upon demand; and a notation of where the rates can be obtained shall appear on the face of the bill.

(Code 1933, § 93-309.3, enacted by Ga. L. 1975, p. 574, § 1.)

RESEARCH REFERENCES

ALR.

- When does statute of limitations commence to run against action to recover back overcharge for public utility service, 108 A.L.R. 751.

Variations of utility rates based on flat and meter rates, 40 A.L.R.2d 1331.

46-2-28. Procedure for issuance of stocks, bonds, notes, or other debt by companies under commission's jurisdiction; exemptions.

  1. Each of the companies over which the commission has jurisdiction shall be required to furnish the commission a list of any stocks and bonds the issuance of which is contemplated.
  2. It shall be unlawful for any of such companies to issue stocks, bonds, notes, or other evidences of debt, payable more than 12 months after the date of issuance, except upon the approval of the commission, and then only when necessary and for such amount as may be reasonably required for the acquisition of property; the construction and equipment of power plants and carsheds; the completion, extension, or improvement of its facilities or properties; the improvement or maintenance of its service; the discharge or lawful refunding of its obligations; or other lawful corporate purposes falling within the spirit of this Code section.
  3. The decision of the commission shall be final as to the validity of the issuance of stocks, bonds, notes, or other evidences of debt by companies under the jurisdiction of the commission.
  4. Before issuing stocks, bonds, notes, or other evidence of debt, a company under the jurisdiction of the commission shall secure an order from the commission authorizing such issue, the amount thereof, and the purpose and use for which the issue is authorized. For the purpose of enabling it to determine whether such order should be issued, the commission shall make such inquiry or investigation, hold such hearings, and examine such witnesses, books, papers, documents, or contracts as it may deem advisable or necessary.
  5. Notwithstanding any other provision of this Code section, a company under the jurisdiction of the commission may issue notes or other evidences of debt for proper and lawful corporate purposes, payable at periods of not more than 12 months from the date of issuance, without the consent of the commission, provided that no such notes or other evidences of debt shall, in whole or in part, directly or indirectly, be refunded by any issue of stocks, bonds, or other evidences of debt running for more than 12 months without the consent of the commission.
  6. Notwithstanding any other provision of this Code section, motor common carriers and motor contract carriers regulated under Chapter 7 of this title shall be exempt from the provisions of this Code section.
  7. Notwithstanding any other provision of this Code section or any other provision of law, local exchange companies as defined in paragraph (10) of Code Section 46-5-162 under the commission's jurisdiction shall be exempt from the provisions of this Code section if the stocks, bonds, notes, or other evidences of debt are issued as part of a debt transaction that is an interstate transaction, as evidenced by the following:
    1. The local exchange company is a wholly owned subsidiary of a parent company headquartered or domiciled outside of this state;
    2. The debt transaction is by and between the parent company, the primary obligor, and a national bank or other lending or financial institution licensed or authorized to enter into such debt transaction by any state or federal agency; and
    3. The local exchange company is issuing stocks, bonds, notes, or other evidences of debt for the purpose of providing collateral or other security to the lending or financial institution in order to accommodate the debt transaction of a parent company or other entity.

(Ga. L. 1907, p. 72, § 8; Civil Code 1910, § 2665; Code 1933, § 93-414; Ga. L. 1986, p. 1518, § 1; Ga. L. 2011, p. 582, § 1/HB 116; Ga. L. 2012, p. 775, § 46/HB 942.)

The 2011 amendment, effective May 12, 2011, added subsection (g).

The 2012 amendment, effective May 1, 2012, part of an Act to revise, modernize, and correct the Code, revised punctuation in the introductory language of subsection (g).

OPINIONS OF THE ATTORNEY GENERAL

Commission hearing required for application for loan approval.

- Public Service Commission is required to afford hearing on application for approval of a loan; such a proceeding is accurately characterized as one in which "the legal rights, duties, or privileges of a party are required by law to be determined by an agency after an opportunity for hearing," and is, therefore, a contested case within the meaning of the Georgia Administrative Procedure Act (see O.C.G.A. Ch. 13, T. 50). 1975 Op. Att'y Gen. No. 75-139.

46-2-29. Requirement of confidentiality of information obtained by commission member or employee in a proceeding under Code Section 46-2-28.

  1. No member or employee of the commission shall, except when legally called upon by a court of competent jurisdiction, disclose or impart to anyone any fact which was obtained in his official capacity from or through any proceeding filed with the commission under Code Section 46-2-28, provided that this Code section shall not apply to any fact or information which is obtained through public hearings or which is not confidential in nature.
  2. Any person who violates this Code section shall be guilty of a misdemeanor.

(Ga. L. 1907, p. 72, § 8; Civil Code 1910, § 2665; Code 1933, § 93-319.)

46-2-30. Power of commission to make rules and regulations generally.

The commission shall have full power and authority to make rules and regulations to effectuate and implement all laws conferring powers and duties upon the commission. Any rule or regulation adopted by the commission shall be transmitted to the chairman of the appropriate committees of the House of Representatives and the Senate for review by such committees and recommendations by such committees to the General Assembly for appropriate action.

(Code 1933, § 93-308.1, enacted by Ga. L. 1975, p. 404, § 2.)

Cross references.

- Provisions of Administrative Procedure Act pertaining specifically to commission, §§ 50-13-10,50-13-17,50-13-19.

RESEARCH REFERENCES

ALR.

- Power of state to require interstate carrier to make track connections with other roads, 22 A.L.R. 1078.

Incidental provision of utility services, by party not in that business, as subject to regulation by state regulatory authority, 85 A.L.R.4th 894.

Public service commission's implied authority to order refund of public utility revenues, 41 A.L.R.5th 783.

46-2-31. Annual report by commission to Governor.

It shall be the duty of the commission to make annual reports of its activities to the Governor and to recommend from time to time such legislation as it may deem advisable.

(Ga. L. 1878-79, p. 125, § 14; Code 1882, § 719n; Ga. L. 1889, p. 133, § 1; Civil Code 1895, § 2201; Civil Code 1910, § 2644; Code 1933, § 93-318.)

46-2-32. Payment of fines into state treasury; cumulative nature of remedies provided by this title.

All fines recovered under this title shall be paid into the general fund of the state treasury, to be used for such purposes as the General Assembly may provide. The remedies provided in this title shall be regarded as cumulative of all other remedies given by law against railroad companies, and this title shall not be construed as repealing any statute giving such remedies.

(Ga. L. 1878-79, p. 125, § 11; Code 1882, § 719k; Civil Code 1895, § 2198; Civil Code 1910, § 2641; Code 1933, § 93-418.)

RESEARCH REFERENCES

ALR.

- Recovery of cumulative statutory penalties, 71 A.L.R.2d 986.

46-2-33. Costs incurred by commission charged to utility; invoicing; recovery.

  1. The cost to the commission of providing reasonably necessary specialized testimony and assistance in conducting affiliate transactions audits prior to utility rate cases, in monitoring nuclear power costs, and in proceedings initiated by the utility, including, but not limited to, utility rate cases, fuel cost recovery cases, gas supply cases, and capacity supply cases, shall be charged to the affected utility. The amount of any such charges shall not exceed $200,000.00 per case per year, except for utility rate cases, generation construction monitoring, integrated resource planning cases, and generation certification cases, to the extent such amount is not also being recovered pursuant to an order issued under subsection (c) of Code Section 46-3A-5, which shall not exceed $600,000.00 per case per year. The maximum fee shall be adjusted on an annual basis based on the Consumer Price Index as reported by the Bureau of Labor Statistics of the United States Department of Labor. In the event the Consumer Price Index is no longer available, the commission shall select a comparable broad national measure of inflation. This Code section shall not apply to proceedings for Tier 1 local exchange companies that have elected alternative regulation or to certificated competing local exchange carriers.
  2. At the time the commission determines that specialized testimony and assistance is required, the commission shall issue an order setting forth the scope and budget for such testimony and assistance. All invoices relating to the testimony and assistance shall be subject to commission review and approval, and no utility shall be required to pay any invoice not approved by the commission.
  3. The amounts paid by regulated companies under this Code section shall be deemed a necessary cost of providing service, and the utility shall be entitled to recover the full amount of any costs charged to the utility pursuant to this Code section. In addition, at the election of the utility, the utility shall be entitled to recover all such costs promptly through a reasonably designed rider designated for such purpose.

(Code 1981, §46-2-33, enacted by Ga. L. 2010, p. 111, § 1/HB 1233.)

Effective date.

- This Code section became effective July 1, 2010.

ARTICLE 2A UTILITY FINANCE SECTION

46-2-40. Creation of Utility Finance Section; composition of section.

There is established a Utility Finance Section of the commission staff, which section shall have the powers and duties specified in this article. The section shall consist of a director, an assistant director, and such accountants, statisticians, experts, and clerical personnel as the commission may employ, as authorized by the General Assembly.

(Code 1933, § 93-201a, enacted by Ga. L. 1981, p. 121, § 4.)

46-2-41. Appointment of director of Utility Finance Section; compensation; supervisory role of director of utilities; qualifications and responsibilities of director of section generally.

  1. On or before December 31, 1981, the commission by order shall employ an individual qualified by knowledge and experience to serve as director of the Utility Finance Section. The director shall be compensated in an amount determined by the commission. He shall serve at the pleasure of the commission and shall report to the director of utilities of the commission.
  2. The director of the Utility Finance Section must possess at least five years' experience in the field of public regulation of business, whether through employment with a state or federal agency, in industry, in education, or through the practice of law. This individual must have graduated from a four-year college with a major in either accounting, finance, business, or management or have graduated from a law school and been admitted to the State Bar of Georgia.
  3. The director shall be responsible for the:
    1. Preparation of the budget of the section for submittal to the director of utilities;
    2. Administration of the section;
    3. Supervision of the work of the section; and
    4. Presentation of the commission staff's position during electric utility rate proceedings.

(Code 1933, § 93-202a, enacted by Ga. L. 1981, p. 121, § 4; Ga. L. 1982, p. 1174, §§ 1, 2.)

OPINIONS OF THE ATTORNEY GENERAL

Position created is unclassified.

- The Georgia Public Service Commission positions of the director of utilities, the public information officer and the director and assistant director of the Utility Finance Section are, as a matter of law, unclassified positions. 1981 Op. Att'y Gen. No. 81-39.

46-2-42. Employment of assistant director of Utility Finance Section; employment of accountants, statisticians, experts, and clerical personnel; application of rules and regulations.

  1. The director of the Utility Finance Section shall employ an assistant director who shall be employed at the pleasure of the commission and as provided by law.
  2. The director shall employ such accountants, statisticians, experts, and clerical personnel as are necessary for the effective performance of the duties of the section, and such employees shall be in the unclassified service as defined by Code Section 45-20-2.
  3. Rules and regulations of the State Personnel Board concerning compensation and promotion shall not apply to employees of the Utility Finance Section.

(Code 1933, § 93-203a, enacted by Ga. L. 1981, p. 121, § 4; Ga. L. 2009, p. 745, § 1/SB 97; Ga. L. 2012, p. 446, § 2-87/HB 642.)

The 2009 amendment, effective July 1, 2009, substituted "State Personnel Administration" for "state merit system" twice in subsection (c).

The 2012 amendment, effective July 1, 2012, added ", and such employees shall be in the unclassified service as defined by Code Section 45-20-2" at the end of subsection (b); and substituted the present provisions of subsection (c) for the former provisions, which read: "With the concurrence of the State Personnel Administration compensation board, certain employees of the section may be included in the 'unclassified service' in addition to those currently provided by paragraph (15) of Code Section 45-20-2. The State Personnel Administration regulations and restrictions concerning compensation and promotion shall not apply to such employees."

Editor's notes.

- Ga. L. 2012, p. 446, § 3-1/HB 642, not codified by the General Assembly, provides that: "Personnel, equipment, and facilities that were assigned to the State Personnel Administration as of June 30, 2012, shall be transferred to the Department of Administrative Services on the effective date of this Act." This Act became effective July 1, 2012.

Ga. L. 2012, p. 446, § 3-2/HB 642, not codified by the General Assembly, provides that: "Appropriations for functions which are transferred by this Act may be transferred as provided in Code Section 45-12-90."

OPINIONS OF THE ATTORNEY GENERAL

Positions in unclassified service.

- The Georgia Public Service Commission positions of the director of utilities, the public information officer and the director and assistant director of the Utility Finance Section are, as a matter of law, unclassified positions. 1981 Op. Att'y Gen. No. 81-39.

Accountant, statistician, expert, and clerical positions of Utilities Finance Section may be placed in unclassified service if State Personnel Board concurs. 1981 Op. Att'y Gen. No. 81-39.

46-2-43. Director, assistant director, or any other employee of Utility Finance Section prohibited from having any interest in or being employed by electric utilities.

During the period of his employment and for one year following the termination of his employment, neither the director of the Utility Finance Section, the assistant director of the section, nor any other employee of the section shall own any interest of any kind in or be retained or employed by any electric utility or own any controlling interest in or be retained or employed by any person who has a vested interest in the outcome of any proceeding in which the section participates.

(Code 1933, § 93-204a, enacted by Ga. L. 1981, p. 121, § 4.)

Cross references.

- Conflicts of interest of state officers and employees generally, § 45-10-20 et seq.

46-2-44. Duties of Utility Finance Section generally.

The duties of the Utility Finance Section shall include the following:

  1. Preparing a budget for the section for submission by the director of the section to the director of utilities to secure the necessary appropriations to finance the activities of the section;
  2. Investigating the rates and auditing the books and records of any electric utility other than transportation utilities, municipal electric systems, and electric membership corporations when so directed by the director of utilities;
  3. Appearing in any proceeding to determine rates of an electric utility. In such capacity, the section shall:
    1. Form an independent evaluation concerning whether the electric utility rates in question are just and reasonable;
    2. Present testimony by its employees or specially retained experts concerning the electric utility rates in question;
    3. Provide to the commission all technical assistance, data, and calculations concerning the electric utility rates in question, as the commission may require;
    4. Assist the commission in any judicial review of a commission determination of the rates of an electric utility; and
    5. When it will not interfere with the section's participation in utility rate proceedings, perform such other duties regarding any utility matter which the director of utilities may establish.

(Code 1933, § 93-205a, enacted by Ga. L. 1981, p. 121, § 4.)

46-2-45. Relationship of Utility Finance Section to commission.

The Utility Finance Section shall have the following authority and relationship to the commission:

  1. The section shall be part of the commission staff; and
  2. The section shall be deemed a party to any proceeding to consider rates in which it participates, provided that it shall not have standing to appeal or contest the final order entered by the commission in such a proceeding.

(Code 1933, § 93-206a, enacted by Ga. L. 1981, p. 121, § 4.)

ARTICLE 3 INVESTIGATIONS AND HEARINGS

Administrative Rules and Regulations.

- Practice and procedure, Official Compilation of Rules and Regulations of State of Georgia, Rules of Georgia Public Service Commission, Chapter 515-2-1.

46-2-50. Conducting of hearings and investigations generally.

The commission shall conduct hearings and investigations in different parts of the state when, in the opinion of the commission, such hearings and investigations will best serve the interest and convenience of the public.

(Ga. L. 1922, p. 143, § 3; Code 1933, § 93-502.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 14 Am. Jur. 2d, Carriers, § 593.

C.J.S.

- 13 C.J.S., Carriers, §§ 444, 465, 503, 577, 595.

46-2-51. Prescription by commission of rules of procedure and rules of evidence; promulgation of rules and regulations as to rehearing, reconsideration, and oral argument of orders.

The commission shall prescribe the rules of procedure and the rules for the taking of evidence in all matters that may come before it. In the investigation, preparation, and hearing of cases, the commission shall not be bound by the strict technical rules of pleading and evidence but may exercise such discretion as will facilitate its efforts to ascertain the facts bearing upon the right and justice of the matters before it. When deemed necessary, in all formal cases heard and determined, the commission shall render an opinion setting out the issues involved in the case and its decision, ruling, and findings thereon. The commission is authorized to provide by rule and regulation for the procedure to be observed in the rehearing, reconsideration, and oral argument of all orders entered by the commission.

(Ga. L. 1922, p. 143, § 3; Code 1933, § 93-501; Ga. L. 1945, p. 356, § 2.)

Law reviews.

- For comment on Tamiami Trail Tours, Inc. v. Georgia Pub. Serv. Comm'n, 213 Ga. 418, 99 S.E.2d 225 (1957), see 20 Ga. B.J. 247 (1957).

JUDICIAL DECISIONS

Public Service Commission may perform quasi-judicial functions as well as quasi-legislative functions. The distinction between the two types of functions has been deemed of importance because where a proceeding is judicial or quasi-judicial in nature, the parties whose rights are adjudicated are entitled to the protection afforded by judicial forms of procedure. Tamiami Trail Tours, Inc. v. Georgia Pub. Serv. Comm'n, 213 Ga. 418, 99 S.E.2d 225 (1957), commented on in 20 Ga. B.J. 247 (1957); RTC Transp., Inc. v. Georgia Pub. Serv. Comm'n, 165 Ga. App. 539, 301 S.E.2d 896 (1983).

Due process rights inapplicable to hearings on applications for certificates of public convenience.

- A hearing on an application for a certificate of public convenience and necessity, whether granted or denied, is not a judicial or quasi-judicial proceeding to which due process rights applicable in such proceedings attach. RTC Transp., Inc. v. Georgia Pub. Serv. Comm'n, 165 Ga. App. 539, 301 S.E.2d 896 (1983).

Administrative Procedure Act inapplicable to hearings on certificate of convenience and necessity.

- The administrative procedure applicable on an application for, or a proceeding to amend, a motor carrier's certificate of convenience and necessity is not that prescribed by the Georgia Administrative Procedure Act in view of Ga. L. 1975, p. 404, which made the Public Service Commission otherwise subject to the GAPA except any rate, charge, classification, service hearing, procedure or matter which shall pertain to any motor contract carrier, motor common carrier, or railroad. The applicable procedure is that established by O.C.G.A. § 46-2-51. RTC Transp., Inc. v. Georgia Pub. Serv. Comm'n, 165 Ga. App. 539, 301 S.E.2d 896 (1983).

Commission authorized to adopt rules of evidence and procedure.

- Commission is authorized to adopt rules of evidence and procedure in carrying out its duties, and is not bound by strict rules of evidence in conducting its hearings. Tamiami Trail Tours, Inc. v. Georgia Pub. Serv. Comm'n, 213 Ga. 418, 99 S.E.2d 225 (1957), for comment, see 20 Ga. B.J. 247 (1957).

Discretion of commission to grant certificate applications.

- Whether or not commission grants application for certificate is matter of discretion and not one of absolute right. Tamiami Trail Tours, Inc. v. Georgia Pub. Serv. Comm'n, 213 Ga. 418, 99 S.E.2d 225 (1957), for comment, see 20 Ga. B.J. 247 (1957).

Court cannot enjoin investigation of company under show cause order.

- An order requiring a power company to show cause why rates, if voluntarily made applicable to people in one city, should not be made effective throughout the territory served by the company is a rule nisi and the court cannot enjoin the commission from investigation of the company. Georgia Pub. Serv. Comm'n v. Georgia Power Co., 172 Ga. 31, 157 S.E. 98 (1931).

Mere introduction of ex parte affidavits does not invalidate order of commission, upon a hearing on an application for a certificate of public convenience and necessity. Tamiami Trail Tours, Inc. v. Georgia Pub. Serv. Comm'n, 213 Ga. 418, 99 S.E.2d 225 (1957), for comment, see 20 Ga. B.J. 247 (1957).

Expert witness' qualifications.

- In rate increase request hearings, where the power company failed to object to an expert witness' qualifications either before or during the witness's testimony, any objection it might have had was waived. Georgia Power Co. v. Georgia Pub. Serv. Comm'n, 196 Ga. App. 572, 396 S.E.2d 562 (1990), cert. denied, 196 Ga. App. 908, 396 S.E.2d 562 (1990).

Cited in Coleman v. Drake, 183 Ga. 682, 188 S.E. 897 (1936).

RESEARCH REFERENCES

Am. Jur. 2d.

- 14 Am. Jur. 2d, Carriers, §§ 608 et seq., 1144. 64 Am. Jur. 2d, Public Utilities, §§ 183, 190.

C.J.S.

- 13 C.J.S., Carriers, §§ 433, 436, 437, 444, 465, 466, 503, 577, 579-584, 590.

ALR.

- Representation of another before state public utilities or service commission as involving practice of law, 13 A.L.R.3d 812.

46-2-52. Keeping of records of proceedings on formal investigations; transcribing of testimony.

A full and complete record as provided in paragraph (8) of subsection (a) of Code Section 50-13-13 shall be kept of all proceedings conducted before the commission on any formal investigation; and all testimony shall be transcribed by the official reporter appointed by the commission.

(Ga. L. 1922, p. 143, § 4; Code 1933, § 93-503.)

46-2-53. Reports, rate schedules, orders, rules, or regulations of commission as admissible evidence in court proceedings.

Reserved. Repealed by Ga. L. 2011, p. 994, § 89/HB 24, effective January 1, 2013.

Editor's notes.

- This Code section was based on Ga. L. 1907, p. 72, § 5; Civil Code 1910, § 2626; Ga. L. 1922, p. 143, § 1; Code 1933, § 93-504.

Ga. L. 2011, p. 99, § 101/HB 24, not codified by the General Assembly, provides that this Act shall apply to any motion made or hearing or trial commenced on or after January 1, 2013.

46-2-54. Power to issue subpoenas; payments to witnesses; failure or refusal to obey subpoenas.

  1. In making any examination for the purpose of obtaining information pursuant to this title, the commission shall have the power to issue subpoenas for the attendance of witnesses by such rules as it may prescribe.
  2. Witnesses shall receive for such attendance the same fees and mileage as prescribed by law in civil cases in the superior court. Such compensation shall be ordered paid by the Governor upon presentation of subpoenas and statements as to the number of days served and miles traveled. Such statements shall be sworn to by the witnesses before the clerk of the commission, who shall have the power to administer oaths.
  3. If any person willfully fails or refuses to obey such subpoena, it shall be the duty of the judge of the superior court of any county, upon application of the commission, to issue an attachment for such witness and compel him to attend the meeting of the commission and give his testimony upon such matters as shall be lawfully required by such commission. The court shall have power to punish for contempt as in other cases of refusal to obey the process and order of the court.

(Ga. L. 1878-79, p. 125, § 15; Code 1882, § 719o; Civil Code 1895, § 2210; Civil Code 1910, § 2653; Ga. L. 1922, p. 143, § 5; Code 1933, § 93-505.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 64 Am. Jur. 2d, Public Utilities, §§ 146, 147, 152.

46-2-55. Compelling witnesses to testify before commission as to the giving or granting of rebates or as to discriminations in rates and charges by common carriers.

In investigating complaints of violations by common carriers of the laws prohibiting the giving or granting of rebates and prohibiting unjust discrimination in rates and charges, the commission may exercise the power and authority to compel the shipper or consignee, or any officer, agent, or employee of a common carrier to give evidence relating to such complaints. Before any such person shall be compelled to give evidence relating to such complaints, the commission shall make an order that such witness is required by the commission to testify and that he will be exempt thereafter from indictment or prosecution for any transaction about which he is compelled to testify. When such order is made, the witness shall be compelled to give evidence touching such complaints, and he shall be forever free from indictment or prosecution in any court touching the matters about which he is compelled to testify.

(Ga. L. 1896, p. 57, § 1; Civil Code 1910, § 2636; Ga. L. 1922, p. 143, § 5; Code 1933, § 93-506.)

Cross references.

- Prohibition against compelled self-incrimination, Ga. Const. 1983, Art. I, Sec. I, Para. XVI.

General prohibition against unjust discrimination in freight-transportation rates by common carriers, § 46-9-52.

JUDICIAL DECISIONS

Cited in Jenkins v. State, 65 Ga. App. 16, 14 S.E.2d 594 (1941).

RESEARCH REFERENCES

ALR.

- Constitutional provision against self-incrimination as applicable to questions asked or testimony given in proceeding before nonjudicial officer or body, 68 A.L.R. 1503.

Testimony of incriminating character which witness was compelled to give, by virtue of immunity statute or otherwise, as admissible in a prosecution of the witness for an offense subsequently committed, 157 A.L.R. 428.

46-2-56. Compelling witnesses to testify against common carriers or any other person in court.

If a witness is exempted from indictment or prosecution as provided in Code Section 46-2-55, he may also be compelled to give evidence in any action or prosecution instituted in any of the courts of this state against any common carrier or against any other person on account of the transactions about which he is compelled to testify before the commission.

(Ga. L. 1896, p. 57, § 2; Civil Code 1910, § 2637; Ga. L. 1922, p. 143, § 5; Code 1933, § 93-507.)

JUDICIAL DECISIONS

Cited in Jenkins v. State, 65 Ga. App. 16, 14 S.E.2d 594 (1941).

RESEARCH REFERENCES

ALR.

- Constitutional provision against self-incrimination as applicable to questions asked or testimony given in proceeding before nonjudicial officer or body, 63 A.L.R. 1503.

46-2-57. Obtaining of discovery by employees and agents of commission; petitions by commission for necessary orders, injunctions, and subpoenas; extension of suspension period by Superior Court of Fulton County; time of hearing of applications and petitions from commission.

  1. In any case pending before it, the commission, in addition to its now existing authority to do so, is authorized to issue an order permitting its employees and agents to take depositions and otherwise obtain discovery of any matter, not privileged, which is relevant to the subject matter involved in the investigation, proceeding, or petition before the commission, in the same manner prescribed in Chapter 11 of Title 9 for discovery in civil actions. In any case involving an application of a gas company to establish just and reasonable rates pursuant to Code Section 46-2-23.1 or 46-4-154, intervenors who are granted party status pursuant to Code Section 46-2-59, as well as the gas company subject to the particular proceeding, shall have all discovery rights available under Chapter 11 of Title 9.
  2. The commission, its agents and employees as directed by the commission, and intervenors and gas companies which are granted discovery rights under subsection (a) of this Code section are authorized to petition the Superior Court of Fulton County for all orders, injunctions, and subpoenas necessary to carry out the provisions of this Code section which would otherwise be authorized or necessary under Chapter 11 of Title 9; and the judges and clerks of the court are authorized to issue all such orders, injunctions, and subpoenas and to take all other actions necessary to carry out this Code section which would otherwise be authorized or necessary under Chapter 11 of Title 9.
  3. In addition to the sanctions which may be imposed under Code Section 9-11-37, the Superior Court of Fulton County is further authorized to extend the period of suspension of the operation of any new schedules and defer the use of such rates, charges, classifications, or service beyond the time authorized by Code Section 46-2-25, if the court, upon application of the commission, determines that the failure of any regulated utility to comply with a discovery request of the commission, its agents, or its employees is unreasonable and requires such extension. No such extension of the period of suspension shall be considered by the court unless the utility has failed completely to respond to a valid deposition or discovery request.
  4. Any application or petition made by the commission, its agents, or its employees pursuant to this Code section shall be heard within 20 days of the filing of the application or petition, irrespective of whether any response to the application or petition has previously been made, and shall be disposed of promptly.

(Ga. L. 1922, p. 145, § 5; Code 1933, § 93-508; Ga. L. 1979, p. 1084, § 1; Ga. L. 1997, p. 798, § 3.)

Law reviews.

- For article commenting on the 1997 amendment of this section, see 14 Ga. St. U.L. Rev. 264 (1997).

46-2-58. Conducting of hearings by hearing officers.

  1. The commission shall employ one or more hearing officers to perform the duties set forth in this Code section. Hearing officers shall be persons qualified by knowledge and experience to conduct hearings on utility and transportation matters. In addition, the commission may employ part-time hearing officers, if necessary, to handle the caseload.
  2. In all utility proceedings commenced after July 1, 1981, any hearing may be conducted by a hearing officer, who shall have authority to:
    1. Administer oaths and affirmations;
    2. Sign and issue subpoenas for discovery or trial;
    3. Rule upon offers of proof;
    4. Regulate the course of the hearing, setting the time and place for continued hearings;
    5. Permit persons to make limited appearances as provided in Code Section 46-2-59;
    6. Take official notice of judicially recognizable facts;
    7. Reprimand or exclude from the hearing any person for any indecorous or improper conduct committed at or during a hearing;
    8. Exercise such other powers necessary for the efficient and expeditious conduct of the hearing, to the end that a complete and orderly record may be developed; and
    9. Make written findings of fact based upon evidence in the record.
  3. The hearing officer or commission shall permit only the Commissioners, the hearing officer, the parties, or the attorneys of record of the Commissioners, hearing officers, or parties to examine or cross-examine witnesses, except with the consent of the witness.
  4. Within 30 days after the conclusion of a hearing, the hearing officer shall prepare and certify a record of the evidence to the commission. The hearing officer shall also transmit to the commission proposed written findings of fact based upon evidence in the record. A copy of the record and findings of fact shall be provided all parties of record by the hearing officer. The hearing officer may render an initial or recommended decision in uncontested cases, if directed to do so by the commission. Any such recommended decision shall also be served upon the parties of record, who shall be provided an opportunity to file with the commission its objections or comments.

(Code 1933, § 93-501a, enacted by Ga. L. 1981, p. 121, § 6; Ga. L. 1981, p. 409, § 3.)

Cross references.

- Procedure for contested cases in administrative proceedings generally, § 50-13-13.

46-2-59. Permissible parties in proceedings before commission; intervention in proceedings generally; limited appearances; procedure for granting leave to intervene.

  1. In all proceedings before the commission, the parties to such proceeding shall consist of the affected applicant, any person who is permitted to intervene as provided in this Code section, and the Utility Finance Section established pursuant to Article 2A of this chapter.
  2. Any person on whom a statute confers an unconditional right to intervene may intervene by filing a notice of intervention with the commission or hearing officer, as appropriate.
  3. Any other person desiring to intervene must file an application for leave to intervene within 30 days following the first published notice of the proceeding. Any such application shall be in writing, shall be verified either by the party intervening or by his attorney on information and belief, shall identify the party requesting the intervention, and shall set forth with particularity the facts pertaining to his interest and the grounds upon which his application for intervention are based. Such application shall be served on all other parties in the proceeding, including those who have previously applied for leave to intervene. No untimely application for leave to intervene shall be granted by the presiding authority except for good cause shown.
  4. Any party or person who has previously applied for leave to intervene in a proceeding in which leave to intervene is sought by another person may file a response to the application for leave to intervene within 15 days after the application is served.
  5. The commission or hearing officer shall permit only the following persons to intervene:
    1. A person upon whom a statute confers an unconditional right to intervene;
    2. A person who demonstrates a legal, property, or other interest in the proceeding. In determining whether to permit intervention, the hearing officer may consider whether the person's interest is adequately represented by other parties and whether the intervention will unduly delay the proceedings or prejudice the rights of other parties;
    3. Any member of the General Assembly of the State of Georgia, who may without fee intervene on behalf of his constituents with the full rights and privileges of a designated party.
  6. The commission or hearing officer may condition any order permitting intervention so as to assure the orderly conduct of the proceeding.
  7. A person who is not a party may make a limited appearance by making an oral or written statement of his position on the issues within such limits and on such conditions as may be fixed by the hearing officer; but he may not otherwise participate in the proceeding.
  8. A party granted leave to intervene shall be present, absent good cause shown, during that portion of the proceedings for which that party has indicated a desire to be heard.
  9. An order by a hearing officer denying or conditioning an application for leave to intervene shall be immediately reviewable by the commission. An order by the commission denying or conditioning an application for leave to intervene shall be immediately reviewable as provided by law for the judicial review of final commission orders.
  10. Nothing in this Code section shall be construed to prohibit the commission from taking any action prior to the expiration of the 30 day period during which persons are permitted to file applications for leave to intervene.

(Code 1933, § 93-502a, enacted by Ga. L. 1981, p. 121, § 6.)

Cross references.

- Intervention in administrative proceedings generally, § 50-13-14.

Law reviews.

- For annual survey of administrative law, see 38 Mercer L. Rev. 17 (1986). For article, "Administrative Law," see 63 Mercer L. Rev. 47 (2011).

JUDICIAL DECISIONS

Where intervention application granted without condition, intervener actual party to proceedings.

- Where the Georgia Public Service Commission (PSC) was authorized to condition the basis upon which intervention would be allowed and the scope of participation by the intervenor in a proceeding and the application which had prayed for leave to intervene "with full rights as a party" was granted without any such condition by the PSC, the intervenor was an actual party to the contested proceedings. Campaign for a Prosperous Georgia v. Georgia Power Co., 174 Ga. App. 263, 329 S.E.2d 570, aff'd, 255 Ga. 253, 336 S.E.2d 790 (1985).

Party must be "aggrieved" to seek judicial review.

- One who has been made a party to a Public Service Commission regulatory proceeding under the provisions of O.C.G.A. § 46-2-59 does not have automatic standing to petition for judicial review of the Public Service Commission's decision without the necessity of being an "aggrieved person" under O.C.G.A. § 50-13-19(a). Georgia Power Co. v. Campaign For A Prosperous Ga., 255 Ga. 253, 336 S.E.2d 790 (1985).

Municipalities had standing to appeal agency's ruling despite failing to intervene in agency proceedings.

- As a municipal association intervened in rate-making proceedings before the Georgia Public Service Commission (PSC), and certain municipalities joined the association's arguments in the trial court, the municipalities had standing to appeal the PSC's decision concerning a reallocation of franchise fees paid to the cities, even though the municipalities did not apply to intervene before the PSC under O.C.G.A. § 46-2-59. Unified Gov't v. Ga. PSC, 293 Ga. App. 786, 668 S.E.2d 296 (2008).

Lack of standing to seek judicial review.

- Trial court properly concluded that taxpayers lacked standing to seek judicial review of the Georgia Public Service Commission's (PSC) certification order because the taxpayers did not file a timely application to intervene in the certification proceedings and, thus, did not satisfy the first requirement of the Administrative Procedure Act, O.C.G.A. § 50-13-19(a); the taxpayers had an available administrative remedy by applying for intervention status in the proceedings conducted by the PSC on the company's application for certification within 30 days following the first published notice of the proceeding, O.C.G.A. § 46-2-59(c), but the taxpayers did not seek to intervene until eight months after notice of the proceedings were first published by the PSC. Fulton County Taxpayers Found., Inc. v. Ga. PSC, 287 Ga. 876, 700 S.E.2d 554 (2010).

ARTICLE 4 ALLOCATION OF GAS AND ELECTRICITY TO PROTECT PUBLIC HEALTH AND SAFETY

Administrative Rules and Regulations.

- Disconnection of gas or electric utility service, Official Compilation of Rules and Regulations of State of Georgia, Rules of Georgia Public Service Commission, Chapter 515-3-2.

46-2-70. Definitions.

As used in this article, the term:

  1. "Corporation" means any private corporation, municipal corporation, joint-stock company, partnership, association, business trust, or other organized group of persons, whether incorporated or not, or a receiver or trustee of any of the foregoing.
  2. "Person" means an individual or a corporation.
  3. "Utility" means any person who supplies, furnishes, or sells a utility service.
  4. "Utility service" means gas or electricity which is supplied, sold, or furnished by any person subject to the jurisdiction of the commission.

(Ga. L. 1972, p. 470, § 1.)

RESEARCH REFERENCES

ALR.

- Implied obligation with respect to character or extent of service by gas company, 21 A.L.R. 671.

Measure and amount of damages for breach of duty to furnish water, gas, light, or power service, 108 A.L.R. 1174.

Landlord supplying electricity, gas, water, or similar facility to tenant as subject to utility regulation, 75 A.L.R.3d 1204.

46-2-71. Power of commission to allocate utility service and to alter, amend, suspend, or terminate existing rates, schedules, contracts, rules, or regulations; findings required before commission exercises powers of allocation.

  1. Subject to subsection (b) of this Code section, the commission shall have the power and authority to allocate any utility service in such manner as it deems proper in order to protect the public health, safety, or welfare, including for such purposes the power and authority to alter, amend, suspend, or terminate any existing rate, schedule, contract, rule, or regulation affecting such utility service and to prescribe new or additional rates, schedules, contracts, rules, or regulations affecting such utility service, provided that in any event such rates, schedules, contracts, rules, or regulations as are altered, amended, or prescribed by the commission shall be just and reasonable.
  2. Before the commission may exercise the power and authority granted by subsection (a) of this Code section, it must:
    1. Find, after a hearing respecting the manner, if any, in which the commission should exercise such power and authority, as well as the necessity therefor, such hearing to be initiated by the commission on its own motion or by any person and to be preceded by notice to the persons affected, that there exists a shortage in the quantities of such utility service available in this state or in any portion of the state, or that such a shortage is imminent, and that it is necessary for the commission to exercise such power and authority in order to protect the public health, safety, or welfare; or
    2. Find that an emergency exists with respect to the quantities of such utility service available in this state or in any portion of the state, and that it is necessary for the commission to exercise such power and authority in order to protect the public health, safety, or welfare before notice and hearing can be afforded to the persons affected; provided, however, that the directives, rulings, and orders of the commission respecting such utility service based upon a finding that an emergency exists pursuant to this paragraph shall be temporary and provisional and the commission shall, as soon as practicable under the circumstances, afford notice and hearing to the persons affected as to whether such directives, rulings, or orders of the commission shall be continued, modified, made permanent, or otherwise affected.

(Ga. L. 1972, p. 470, § 2.)

Cross references.

- Limitation on power of Governor upon declaration of state of energy emergency, § 38-3-51(h).

JUDICIAL DECISIONS

Commission cannot require utility to buy, merge with, or sell power to another utility.

- Public Service Commission has no power to require electric public utility to buy or merge with a separate and distinct neighboring electric public utility, or to sell power to such other public utility where it has never undertaken as such public utility to provide such service. Georgia Power Co. v. Georgia Pub. Serv. Comm'n, 211 Ga. 223, 85 S.E.2d 14 (1954).

Right of utilities to contract.

- Public utilities have the right to enter into contracts between themselves, or with others, free from control or supervision of the state, so long as such contracts are not unconscionable or oppressive and do not impair the obligation of the utility to discharge its public duties. Georgia Power Co. v. Georgia Pub. Serv. Comm'n, 211 Ga. 223, 85 S.E.2d 14 (1954).

RESEARCH REFERENCES

Am. Jur. 2d.

- 27A Am. Jur. 2d, Energy and Power Sources, §§ 40, 46, 154.

C.J.S.

- 29 C.J.S., Electricity, §§ 3, 30, 31. 38 C.J.S., Gas, §§ 6, 17 et seq., 64 et seq.

ALR.

- Implied obligation with respect to character or extent of service by gas company, 21 A.L.R. 671.

Measure and amount of damages for breach of duty to furnish water, gas, light, or power service, 108 A.L.R. 1174.

Special requirements of consumer as giving rise to implied contract by public utility to furnish particular amount of electricity, gas, or water, 13 A.L.R.2d 1233.

Civil rights: racial or religious discrimination in furnishing of public utilities services or facilities, 53 A.L.R.3d 1027.

Validity of imposition, by state regulation, of natural gas use priorities, 84 A.L.R.3d 541.

46-2-72. Immunity from liability of persons acting in accordance with ruling or order of commission entered pursuant to Code Section 46-2-71.

Any person who supplies, furnishes, sells, limits, withholds, receives, or otherwise acts with respect to any utility service in accordance with a directive, ruling, or order entered by the commission pursuant to the authority granted by Code Section 46-2-71 will not be held liable to any other person by reason thereof in any action at law or in equity.

(Ga. L. 1972, p. 470, § 3.)

RESEARCH REFERENCES

ALR.

- Implied obligation with respect to character or extent of service by gas company, 21 A.L.R. 671.

ARTICLE 5 MISCELLANEOUS OFFENSES AND PENALTIES

Cross references.

- General prohibition against unjust discrimination in freight-transportation rates by common carriers, § 46-9-52.

46-2-90. Liability of companies subject to jurisdiction of commission generally; venue for actions generally; award of attorney's fee.

If any company under the jurisdiction of the commission does, causes to be done, or permits to be done any act which is prohibited, forbidden, or declared to be unlawful, or fails to do any act which is required either by a law of this state or by an order of the commission, such company shall be liable to the persons affected thereby for all loss, damage, or injury caused thereby or resulting therefrom. An action to recover for such loss, damage, or injury may be brought in any court of competent jurisdiction by any such person. In case of recovery, if the jury finds that such act or failure to act was willful, it may fix a reasonable attorney's fee, which shall be taxed and collected as part of the costs of the case.

(Ga. L. 1907, p. 72, § 9; Civil Code 1910, § 2666; Code 1933, § 93-415.)

Law reviews.

- For article advocating that payment of attorneys fees be assigned to the losing party, see 18 Ga. B.J. 439 (1956). For annual survey of recent developments, see 38 Mercer L. Rev. 473 (1986). For annual survey on administrative law, see 69 Mercer L. Rev. 15 (2017).

JUDICIAL DECISIONS

Former Civil Code 1910, § 2666 (see O.C.G.A § 46-2-90) did not repeal former Civil Code 1910, § 2640 (see O.C.G.A § 46-1-2), providing for actions against railroad companies. Atlantic Log & Export Co. v. Central of Ga. Ry., 171 Ga. 175, 155 S.E. 525 (1930).

The combined intent of O.C.G.A. §§ 46-2-90 and 46-1-2 is to provide for the recovery of compensatory and exemplary damages as well as attorney fees for the tortious infliction of property damages upon the owner or possessor of property where the damage is inflicted as the result of a wilful act. Southern Ry. v. Malone Freight Lines, 174 Ga. App. 405, 330 S.E.2d 371 (1985).

No need to exhaust administrative remedy under O.C.G.A. § 46-2-90. - Trial court erred in concluding that the petitioners failed to exhaust their administrative remedies and by dismissing the petition challenging the calculation of municipal franchise fees because the petitioners were not required to exhaust any administrative remedy before proceeding under O.C.G.A. § 46-2-90 as that statute does not contemplate any administrative proceedings before the Georgia Public Service Commission. Cazier v. Georgia Power Company, 339 Ga. App. 506, 793 S.E.2d 668 (2016), aff'd, 303 Ga. 820, 815 S.E.2d 922 (2018).

In a putative class action against the power company regarding the collection of municipal franchise fees, the plaintiffs were not required to exhaust administrative remedies before bringing the plaintiffs' putative class action because the plaintiffs did not seek judicial relief from the Public Service Commission's orders; the plaintiffs did not dispute that the Commission could authorize the collection of those fees; the merits of the case were not committed by law to the exclusive jurisdiction of the Commission; and the putative class action would not infringe upon the Commission's exclusive jurisdiction to make just and reasonable rates for electrical service. Ga. Power Co. v. Cazier, 303 Ga. 820, 815 S.E.2d 922 (2018).

Violations of O.C.G.A. § 46-2-25.1 or O.C.G.A. § 46-2-25.2 did not impose any duties or obligations upon telecommunication providers, a violation of which would give rise to a cause of action under O.C.G.A. § 46-2-90. Lange v. Standard Tel. Co., 243 Ga. App. 301, 533 S.E.2d 162 (2000).

"Law of the state" is to be construed as referring to statute law. Southern Bell Tel. & Tel. Co. v. Beach, 8 Ga. App. 720, 70 S.E. 137 (1911).

"Order of the commission" construed.

- Expression "order of the commission," refers to special orders of the commission, and not to its general rules. Southern Bell Tel. & Tel. Co. v. Beach, 8 Ga. App. 720, 70 S.E. 137 (1911).

No right of action for difference in rates.

- Former Code 1933, § 93-415 (see O.C.G.A § 46-2-90) only gave a right of action for loss, damage or injury; there was no statute giving a right of action for difference in rates. Columbia Baking Co. v. Atlanta Gas Light Co., 78 Ga. App. 241, 50 S.E.2d 382 (1948).

Liability relating to "order of the commission."

- Only liability relating to "order of the commission" is for omission to perform such order or mere nonfeasance and does not include liability for the positive acts of charging and collecting freight in excess of the rates and tariffs fixed by the commission. Atlantic Log & Export Co. v. Central of Ga. Ry., 171 Ga. 175, 155 S.E. 525 (1930).

No liability for rate difference where provided for in approved contract.

- A gas company under the jurisdiction of the Public Service Commission is not liable to an industrial consumer for the difference between the rates charged to it and those charged to other industrial users of gas when the latter rates are provided for in contracts filed with the commission which it permits to go into effect. Columbia Baking Co. v. Atlanta Gas Light Co., 78 Ga. App. 241, 50 S.E.2d 382 (1948).

Action by shipper against railroad for overcharges held not authorized.

- Former Civil Code 1910, § 2666 (see O.C.G.A § 46-2-90) did not confer right on shipper to bring action against railroad company for recovery of freight overcharges paid on intrastate shipments in excess of the rates and tariff fixed by the Public Service Commission. Atlantic Log & Export Co. v. Central of Ga. Ry., 171 Ga. 175, 155 S.E. 525 (1930).

Liability for failure to restore electric power.

- City was liable for the actual damages caused by its violations of federal law in refusing immediately to restore electric power upon receiving notice of debtor's bankruptcy petition. Tarrant v. City of Douglas, 190 Bankr. 704 (Bankr. S.D. Ga. 1995).

When attorneys' fees may not be awarded.

- Former Civil Code 1910, § 2666 (see O.C.G.A § 46-2-90) did not authorize the recovery of attorneys' fees (in cases where they were not otherwise recoverable under the general law) where the thing done or omitted had not been forbidden by some statutory enactment in this state or by some order of the commission. Southern Bell Tel. & Tel. Co. v. Beach, 8 Ga. App. 720, 70 S.E. 137 (1911).

Cited in Savannah Elec. Co. v. Lowe, 27 Ga. App. 350, 108 S.E. 313 (1921); Harrison v. Harrison, 208 Ga. 70, 65 S.E.2d 173 (1951).

RESEARCH REFERENCES

Am. Jur. 2d.

- 14 Am. Jur. 2d, Carriers, §§ 1205, 1206, 1207, 1210. 65 Am. Jur. 2d, Railroads, § 281.

ALR.

- Injury to one other than passenger or employee from fall of trolley pole or other part of streetcar, 5 A.L.R. 1336.

Liability of street railway company to passenger struck by vehicle not subject to its control, 31 A.L.R. 572; 44 A.L.R. 162.

Liability of street railway company or municipality for injury due to condition of part of street occupied by street railway, 54 A.L.R. 1291.

Liability of motorbus carrier to passenger injured through fall while alighting at place other than regular bus stop, 7 A.L.R.4th 1031.

46-2-91. Penalties recoverable before commission; superior court filing of certain commission orders; venue; effect of judgment.

  1. Any person, firm, or corporation (referred to in this Code section as a "utility") subject to the jurisdiction of the commission, which utility willfully violates any law administered by the commission or any duly promulgated regulation issued thereunder or which fails, neglects, or refuses to comply with any order after notice thereof, shall be liable to a penalty not to exceed $15,000.00 for such violation and an additional penalty not to exceed $10,000.00 for each day during which such violation continues.
    1. The commission, after a hearing conducted after not less than 30 days' notice, shall determine whether any utility has willfully violated any law administered by the commission or any duly promulgated regulation issued thereunder, or has failed, neglected, or refused to comply with any order of the commission. Upon an appropriate finding of a violation, the commission may impose by order such civil penalties as are provided by subsection (a) of this Code section. In each such proceeding, the commission shall maintain a record as provided in paragraph (8) of subsection (a) of Code Section 50-13-13 including all pleadings, a transcript of proceedings, a statement of each matter of which the commission takes official notice, and all staff memoranda or data submitted to the commission in connection with its consideration of the case. All penalties and interest thereon (at the rate of 10 percent per annum) recovered by the commission shall be paid into the general fund of the state treasury.
    2. Any party aggrieved by a decision of the commission may seek judicial review as provided in subsection (c) of this Code section.
    1. Any party who has exhausted all administrative remedies available before the commission and who is aggrieved by a final decision of the commission in a proceeding described in subsection (b) of this Code section may seek judicial review of the final order of the commission in the Superior Court of Fulton County.
    2. Proceedings for review shall be instituted by filing a petition within 30 days after the service of the final decision of the commission or, if a rehearing is requested, within 30 days after the decision thereon. A motion for rehearing or reconsideration after a final decision by the commission shall not be a prerequisite to the filing of a petition for review. Copies of the petition shall be served upon the commission and all parties of record before the commission.
    3. The petition shall state the nature of the petitioner's interest, the facts showing that the petitioner is aggrieved by the decision, and the ground, as specified in paragraph (6) of this subsection, upon which the petitioner contends that the decision should be reversed. The petition may be amended by leave of court.
    4. Within 30 days after service of the petition, or within such further time as is stipulated by the parties or as is allowed by the court, the agency shall transmit to the reviewing court the original or a certified copy of the entire record of the proceedings under review. By stipulation of all parties to the review proceedings, the record may be shortened. A party unreasonably refusing to stipulate that the record be limited may be taxed for the additional costs. The court may require or permit subsequent corrections or additions to the record.
    5. If, before the date set for hearing, application is made to the court for leave to present additional evidence, and it is shown to the satisfaction of the court that the additional evidence is material and there were good reasons for failure to present it in the proceedings before the agency, the court may order that the additional evidence be taken before the commission upon such procedure as is determined by the court. The commission may modify its findings and decision by reason of the additional evidence and shall file that evidence and any modifications, new findings, or decisions with the reviewing court.
    6. The review shall be conducted by the court without a jury and shall be confined to the record. The court shall not substitute its judgment for that of the commission as to the weight of the evidence on questions of fact. The court may affirm the decision of the commission or remand the case for further proceedings. The court may reverse the decision of the commission if substantial rights of the petitioner have been prejudiced because the commission's findings, inferences, conclusions, or decisions are:
      1. In violation of constitutional or statutory provisions;
      2. In excess of the statutory authority of the commission;
      3. Made upon unlawful procedure;
      4. Clearly not supported by any reliable, probative, and substantial evidence on the record as a whole; or
      5. Arbitrary or capricious.
    7. A party aggrieved by an order of the court in a proceeding authorized under subsection (b) of this Code section may appeal to the Supreme Court of Georgia or to the Court of Appeals of Georgia in accordance with Article 2 of Chapter 6 of Title 5, the "Appellate Practice Act."
  2. The commission may file in the superior court in the county in which the person under order resides or in the county in which the violation occurred or, if the person is a corporation, in the county in which the corporation maintains its principal place of business a certified copy of a final order of the commission unappealed or of a final order of the commission affirmed upon appeal, whereupon the court shall render judgment in accordance therewith and notify the parties. The judgment shall have the same effect, and all proceedings in relation thereto shall thereafter be the same, as though the judgment had been rendered in an action duly heard and determined by the court.

(Code 1933, § 93-309.2, enacted by Ga. L. 1973, p. 677, § 2; Ga. L. 1992, p. 1640, § 1; Ga. L. 1997, p. 708, § 1; Ga. L. 2004, p. 366, § 1; Ga. L. 2006, p. 708, § 1/SB 210.)

The 2004 amendment, effective July 1, 2004, deleted "or by subsection (a) of Code Section 46-2-94" following "this Code section" at the end of the second sentence in paragraph (b)(1).

The 2006 amendment, effective July 1, 2006, added subsection (d).

JUDICIAL DECISIONS

No need to exhaust administrative remedies under O.C.G.A. § 46-2-90. - Trial court erred in concluding that the petitioners failed to exhaust their administrative remedies and by dismissing the petition challenging the calculation of municipal franchise fees because the petitioners were not required to exhaust any administrative remedy before proceeding under O.C.G.A. § 46-2-90 as that statute does not contemplate any administrative proceedings before the Georgia Public Service Commission. Cazier v. Georgia Power Company, 339 Ga. App. 506, 793 S.E.2d 668 (2016), aff'd, 303 Ga. 820, 815 S.E.2d 922 (2018).

Administrative Rules and Regulations.

- Natural Gas Marketers' Terms of Service, Official Compilation of Rules and Regulations of State of Georgia Public Service Commission, Gas Utilities, Chapter 515-7-9.

RESEARCH REFERENCES

ALR.

- Validity of service charge for gas meter, 20 A.L.R. 225.

Liability of gas, electric, or water company for delay in commencing service, 97 A.L.R. 838.

46-2-92. Penalties recoverable by state through civil action.

  1. Every company under the jurisdiction of the commission, and all officers, agents, and employees of every such company, shall obey, observe, and comply with every order made by the commission under authority of law. Any company under the jurisdiction of the commission, or any officer, agent, or employee thereof, who or which violates any provision of this Code section, or who or which fails, omits, or neglects to obey, observe, and comply with any rule, regulation, order, direction, or requirement of the commission, shall forfeit to the state a sum of not more than $5,000.00 for each offense, the amount to be fixed by the presiding judge. Every violation of this Code section or any other Code section, or of any rule, regulation, order, direction, or requirement of the commission shall be a separate and distinct offense; in case of a continued violation, every day a violation thereof takes place shall be deemed a separate and distinct offense.
  2. An action for the recovery of the penalty provided in subsection (a) of this Code section may be brought in the county of the principal office in this state of such company, or in the county of the state where such violation occurs and such wrong is perpetrated, or in any county in this state through which the company operates. Where the violation consists of an excessive charge for the carriage of freight or passengers or for any other service rendered, as such violation is described in Code Section 46-9-250, an action may be brought in any county in which the charges are made, or through which counties it was intended that such passengers or freight should have been carried, or through which counties such company operates. Any action pursuant to this Code section shall be brought in the name of the state by direction of the Governor.
  3. Any proceeding to enforce the penalty provided in subsection (a) of this Code section may be tried at the first term of the court to which it is brought and shall be given precedence over other business by the presiding judge. The court shall not be adjourned until such proceeding is legally continued or disposed of. The decision in such case may be taken to the Court of Appeals as in other cases.

(Ga. L. 1907, p. 72, § 12; Civil Code 1910, § 2667; Code 1933, § 93-416; Ga. L. 1946, p. 726, § 1.)

JUDICIAL DECISIONS

Constitutionality.

- O.C.G.A. § 46-2-92 is not unconstitutional under U.S. Const., Amend. 14 as denying an opportunity to be heard. Wadley S. Ry. v. Georgia, 235 U.S. 651, 35 S. Ct. 214, 59 L. Ed. 405 (1915).

Effect of obtaining certificate from federal agency on failure to comply with order of commission.

- Where telegraph company obtained a certificate of public convenience from the Federal Communications Commission authorizing it to change the character and nature of the services rendered it by one of its local offices, failure of telegraph company to comply with rule of the Public Service Commission does not constitute a lawful basis for a recovery of a penalty by the state. Western Union Tel. Co. v. State, 207 Ga. 675, 63 S.E.2d 878 (1951).

Commission not authorized to grant reparations or compensatory damages.

- Public Service Commission is not authorized to grant reparations or compensatory damages, either by reason of a public utility collecting unreasonable rates, or by reason of the violation of any rule or regulation of the commission. The commission does not have the power to impose forfeitures or to provide for pecuniary recoveries. Georgia Pub. Serv. Comm'n v. Atlanta Gas Light Co., 205 Ga. 863, 55 S.E.2d 618 (1949).

Penalty provisions apply only after commission order found lawful.

- Where judicial review is timely sought, the penalty provisions of the law apply only to subsequent violations after the order of the commission has been judicially established to be lawful order. Southern Ry. v. Georgia Pub. Serv. Comm'n, 218 Ga. 157, 127 S.E.2d 12 (1962).

Action to be brought in name of state.

- Under former Civil Code 1910, § 2666 (see O.C.G.A § 46-2-92) an action for a penalty for disobedience to the order of the commission must be brought in the name of the state by direction of the Governor. Wadley S. Ry. v. State, 137 Ga. 497, 73 S.E. 741 (1912), aff'd, 235 U.S. 651, 35 S. Ct. 214, 59 L. Ed. 405 (1914).

Cited in Savannah Elec. Co. v. Lowe, 27 Ga. App. 350, 108 S.E. 313 (1921); Georgia Power Co. v. Georgia Pub. Serv. Comm'n, 211 Ga. 223, 85 S.E.2d 14 (1954); Gas Light Co. v. Georgia Power Co., 313 F. Supp. 860 (M.D. Ga. 1970).

OPINIONS OF THE ATTORNEY GENERAL

Commission may not enforce rules, orders, or regulations by injunction.

- There is no provision of law which allows Public Service Commission to restrain any violations of its rules, orders or regulations by application for injunctive relief; the commission has the authority substantially similar to the Natural Gas Pipeline Safety Act of 1968 (49 U.S.C. §§ 1671-1686) to enforce its rules, orders and regulations by monetary sanctions, but not by injunction. 1969 Op. Att'y Gen. No. 69-48.

RESEARCH REFERENCES

Am. Jur. 2d.

- 14 Am. Jur. 2d, Carriers, §§ 1205, 1206, 1207, 1210.

C.J.S.

- 13 C.J.S., Carriers, § 354.

ALR.

- Special services or facilities afforded by shipper as a factor in carrier's rates, 25 A.L.R. 191.

Right to maintain action against carrier on ground that rates which were filed and published by carrier pursuant to law were excessive, 97 A.L.R. 406.

Recovery of cumulative statutory penalties, 71 A.L.R.2d 986.

46-2-93. Criminal penalty; venue for actions; calling of agents and employees of company as witnesses; use of testimony against agents and employees.

Every officer, agent, or employee of any company under the jurisdiction of the commission who violates or procures, aids, or abets any violation by any such company of any provision of this title; or who fails to obey, observe, or comply with any order of the commission; or who aids or abets any such company in its failure to obey, observe, and comply with any such order, direction, or provision, shall be guilty of a misdemeanor. Such officer, agent, or employee shall be subject to prosecution in any county in which the company or the officer, agent, or employee violates any provision of this title or any provision of any order of the commission, or in any county through which the company operates. Such officer, agent, or employee shall also be subject to prosecution under this title in any county in which a subordinate agent or employee of the company violates any provision of this title, by the approval or direction, or in consequence of the approval or direction, of such officer, agent, or employee; and the agent or employee who locally in any county violates the rules or directions of said commission pursuant to the direction or authority of a superior officer may be called as a witness and be compelled to testify as to the authority by which he acted. Such testimony shall not be used against such subordinate employee or agent, nor shall he thereafter be subject to prosecution for said offense.

(Ga. L. 1907, p. 72, § 13; Civil Code 1910, § 2668; Penal Code 1910, § 527; Code 1933, § 93-9901; Ga. L. 1982, p. 3, § 46.)

Cross references.

- Prohibition against compelled self-incrimination, Ga. Const. 1983, Art. I, Sec. I, Para. XVI.

JUDICIAL DECISIONS

Penalty provisions apply only after commission order found lawful.

- Where judicial review is timely sought, the penalty provisions of the law apply only to subsequent violations after the order of the commission has been judicially established to be a lawful order. Southern Ry. v. Georgia Pub. Serv. Comm'n, 218 Ga. 157, 127 S.E.2d 12 (1962).

Cited in Wight v. Pelham & H.R.R., 18 Ga. App. 195, 89 S.E. 176 (1916); Savannah Elec. Co. v. Lowe, 27 Ga. App. 350, 108 S.E. 313 (1921); Jenkins v. State, 65 Ga. App. 16, 14 S.E.2d 594 (1941); Georgia Power Co. v. Georgia Pub. Serv. Comm'n, 211 Ga. 223, 85 S.E.2d 14 (1954); Gas Light Co. v. Georgia Power Co., 313 F. Supp. 860 (M.D. Ga. 1970).

46-2-94. Operation as household goods carrier for hire without having valid certificate prohibited.

Reserved. Repealed by Ga. L. 2004, p. 366, § 2, effective July 1, 2004.

Editor's notes.

- This Code section was based on Code 1981, § 46-2-94, enacted by Ga. L. 1992, p. 1640, § 2.

46-2-95. Civil actions; standard for obtaining an injunction.

The commission may bring a civil action to enjoin the violation of any law administered by the commission or any rule, order, or regulation established by the commission. It shall not be necessary to allege or prove that there is no adequate remedy at law to obtain an injunction under this Code section.

(Code 1981, §46-2-95, enacted by Ga. L. 2002, p. 475, § 5.)

Effective date.

- This Code section became effective April 25, 2002.

Editor's notes.

- Ga. L. 2002, p. 475, § 1, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Natural Gas Consumers' Relief Act.'"

Law reviews.

- For note on the 2002 enactment of this chapter, see 19 Ga. St. U.L. Rev. 285 (2002).

CHAPTER 2A ELECTRIC UTILITIES GENERALLY

46-2A-1. Annual audit of affairs of electric utilities.

  1. Each electric utility shall provide for the appointment by its board of directors of an audit committee consisting solely of directors who are not officers or employees of the electric utility. Such audit committee shall make an annual examination into the affairs of the electric utility and report the result of such audit in writing to the board of directors at its next regular meeting.
  2. The report provided for in subsection (a) of this Code section shall state whether the electric utility is in a sound condition and whether adequate internal audit controls and procedures are being maintained and shall recommend to the board of directors such changes in the manner of conducting the affairs of the electric utility as shall be deemed advisable. The board of directors shall report in writing to the commission that such audit has been made and reviewed by the board of directors.

(Code 1933, § 93-1001, enacted by Ga. L. 1981, p. 121, § 7.)

46-2A-2. Management audit of electric utilities.

  1. Not more frequently than every five years, the commission shall cause to be performed a management audit of each electric utility to determine whether it is being managed in an efficient and effective manner.
  2. The management audit provided for in this Code section shall be performed by a qualified and reputable management auditor of national reputation, to be selected by the commission from a list of not less than three such auditors, which list shall be made up by mutual agreement of the commission and the electric utility. The management auditor shall report the results of the audit to the commission.
  3. In the event that the commission and the electric utility are unable to agree on a list of management auditors, either party may petition the Superior Court of Fulton County to select, within 30 days of filing, such a list after a hearing on the petition.
  4. The audited electric utility shall pay for the management audit. The cost of the management audit shall be recognized by the commission as an operating expense of the utility; and the utility's rates shall be fixed by the commission to recover this retail expense amortized over such period as the commission may direct.

(Code 1933, § 93-1002, enacted by Ga. L. 1981, p. 121, § 7.)

CHAPTER 3 ELECTRICAL SERVICE

Article 1 Generation and Distribution of Electricity Generally.
Part 1 ALLOCATION OF TERRITORIAL RIGHTS TO ELECTRIC SUPPLIERS.
Part 2 HIGH-VOLTAGE SAFETY.
Part 3 Sale of Electricity by Facility
Generating Electricity, Steam, or Other Forms of Energy
for Its Own Consumption.
Part 4 SOLAR POWER FREE-MARKET FINANCING.
Article 2 Nonprofit Rural Electrification Membership Corporations.
Article 3 Municipal Electric Authority of Georgia.
Article 4 Electric Membership Corporations and Foreign Electric Cooperatives.
Part 1 GENERAL PROVISIONS.
Part 2 Corporate Purposes and
Powers. Part 3

C ORPORATE NAME

Part 4 Registered Office, Registered Agents, Service of Process, and Venue.
Part 5 MEMBERS.
Part 6 DIRECTORS AND OFFICERS.
Part 7 ORGANIZATION OF ELECTRIC MEMBERSHIP CORPORATIONS.
Part 8 OPERATION OF ELECTRIC MEMBERSHIP CORPORATIONS GENERALLY.
Part 9 Amendment and Restatement of
Articles of Incorporation of Electric Membership
Corporations. Part 10
Mergers and Consolidations Involv- ing Electric Membership Corpora-
tions and Foreign Electric Cooperatives.
Part 11 SALE AND OTHER DISPOSITION OF CORPORATE ASSETS.
Part 12 DISSOLUTION OF ELECTRIC MEMBERSHIP CORPORATIONS.
Part 13 Powers and Duties of Foreign
Electric Cooperatives Transacting Business
in State Generally. Part 14

A NNUAL REPORTS

Part 15 FEES AND CHARGES.
Part 16 PROVISIONS RELATING TO THE SECRETARY OF STATE.
Part 17 PENALTIES.
Cross references.

- Exercise of power of eminent domain for construction and operation of electric power plants, § 22-3-20 et seq.

Accounting methods to be used by electric utilities in rate-making proceedings, etc., § 46-2-26.1.

RESEARCH REFERENCES

Electric Company's Failure to Exercise Reasonable Care Regarding Downed Transmission Line or Pole, 17 POF2d 643.

Electric Company's Negligence as to Workers near Transmission Line, 23 POF2d 633.

Negligence of Landowner as to Contact of Movable Machine with Electric Line, 30 POF2d 371.

Public Fear of Electromagnetic Fields as Basis for Recovery of Damages for Property Devaluation Caused by Nearby Power Line, 47 POF3d 473.

ALR.

- Placement, maintenance, or design of standing utility pole as affecting private utility's liability for personal injury resulting from vehicle's collision with pole within or beside highway, 51 A.L.R.4th 602.

Liability of electric utility to nonpatron for interruption or failure of power, 54 A.L.R.4th 667.

Products liability: Sufficiency of evidence to support product misuse defense in actions concerning electrical generation and transmission equipment, 55 A.L.R.4th 1010.

Products liability: electricity, 60 A.L.R.4th 732.

ARTICLE 1 GENERATION AND DISTRIBUTION OF ELECTRICITY GENERALLY

Administrative Rules and Regulations.

- Allocation of electric utility service, Official Compilation of Rules and Regulations of State of Georgia, Rules of Georgia Public Service Commission, Chapter 515-11-1.

PART 1 A LLOCATION OF TERRITORIAL RIGHTS TO ELECTRIC SUPPLIERS

JUDICIAL DECISIONS

No conspiracy in restraint of trade by limiting service to assigned areas.

- Providers of electricity do not engage in an unlawful conspiracy in restraint of trade by limiting their service to those areas assigned to them by the Public Service Commission under the authority of this part. Jack Gresham, Inc. v. North Ga. Elec. Membership Corp., 166 Ga. App. 779, 305 S.E.2d 642 (1983).

46-3-1. Short title.

This part shall be known as the "Georgia Territorial Electric Service Act."

(Ga. L. 1973, p. 200, § 1.)

Law reviews.

- For annual survey of local government law, see 43 Mercer L. Rev. 317 (1991). For annual survey of local government law, see 44 Mercer L. Rev. 309 (1992). For annual survey of construction law, see 56 Mercer L. Rev. 109 (2004).

JUDICIAL DECISIONS

This part not unconstitutional.

- Neither this part of Ga. L. 1973, p. 200 (see O.C.G.A. Ch. 3, T. 46) nor any provision thereof operates in a nonuniform manner as prohibited by Ga. Const. 1976, Art. I, Sec. II, Para. VII (Ga. Const. 1983, Art. III, Sec. VI, Para. IV). City of Calhoun v. North Ga. Elec. Membership Corp., 233 Ga. 759, 213 S.E.2d 596 (1975).

No provision requiring electricity in home.

- Nowhere in this part of Ga. L. 1973, p. 200 (see O.C.G.A. Ch. 3, T. 46) is it provided that plaintiff must have electricity in plaintiff's home. Frier v. City of Douglas, 233 Ga. 775, 213 S.E.2d 607 (1975).

Cited in Jackson Elec. Membership Corp. v. Georgia Power Co., 257 Ga. 772, 364 S.E.2d 556 (1988); City of LaGrange v. Ga. PSC, 296 Ga. App. 615, 675 S.E.2d 525 (2009).

46-3-2. Legislative findings and declaration of policy.

The public interest requires, and it is declared to be the policy of the State of Georgia, that, in order (1) to assure the most efficient, economical, and orderly rendering of retail electric service within the state, (2) to inhibit duplication of the lines of electric suppliers, (3) to foster the extension and location of electric supplier lines in the manner most compatible with the preservation and enhancement of the state's physical environment, and (4) to protect and conserve lines lawfully constructed by electric suppliers, it is necessary and appropriate that the state establish and implement a plan whereby every geographic area within the state shall be either assigned to an electric supplier or declared unassigned as to any electric supplier; that, to accomplish such a plan, it is necessary that all electric suppliers within the state be subject to this part; that the commission be delegated power, authority, and jurisdiction with respect to such plan; and that all electric membership corporations and all municipalities which furnish retail electric service be additionally subject to regulation by the commission in the same manner as provided for regulation of electric light and power companies, except as to the fixing of their rates, charges, and service rules and regulations, it being determined by the General Assembly that such electric membership corporations and municipalities, which by their corporate nature are wholly or substantially controlled by their consumers, should for regulatory purposes be classified differently in certain respects from electric light and power companies.

(Ga. L. 1973, p. 200, § 2.)

JUDICIAL DECISIONS

Purposes of chapter appropriate.

- Purposes of this part of Ga. L. 1973, p. 200 (see O.C.G.A. Ch. 3, T. 46) enumerated in Ga. L. 1973, p. 200, § 2 (see O.C.G.A.46-3-2) are appropriate and are put into effect completely and thoroughly by other provisions of this part. City of Calhoun v. North Ga. Elec. Membership Corp., 233 Ga. 759, 213 S.E.2d 596 (1975).

Cited in Greensboro Lumber Co. v. Georgia Power Co., 643 F. Supp. 1345 (N.D. Ga. 1986); Marietta Bd. of Lights & Water v. Georgia Pub. Serv. Comm'n, 182 Ga. App. 702, 356 S.E.2d 737 (1987); Colquitt Elec. Membership Corp. v. City of Moultrie, 197 Ga. App. 794, 399 S.E.2d 497 (1990); Jackson Elec. Mbrshp. Corp. v. Ga. PSC, 294 Ga. App. 253, 668 S.E.2d 867 (2008); City of LaGrange v. Ga. PSC, 296 Ga. App. 615, 675 S.E.2d 525 (2009).

RESEARCH REFERENCES

ALR.

- Grant of perpetual franchise to public service corporation, 2 A.L.R. 1105.

46-3-3. Definitions.

As used in this part, the term:

  1. "Assigned area" means an enclosed geographic area assigned to only one electric supplier by the commission or by this part, and inside which the assignee electric supplier shall have the exclusive right to extend and continue furnishing service to new premises, except as otherwise provided in this part.
  2. "Electric membership corporation" has the meaning provided by paragraph (3) of Code Section 46-3-171.
  3. "Electric supplier" means any electric light and power company subject to regulation by the commission, any electric membership corporation furnishing retail service in this state, and any municipality which furnishes such service within this state.
  4. "Line" means any conductor for the distribution or transmission of electricity other than a conductor operating at a potential of 120,000 volts or more. However, a conductor that initially constitutes a line shall not cease being a line if, after March 29, 1973, it is operating at a potential in excess of 120,000 volts.
  5. "Municipality" means:
    1. Any geographically defined political subdivision of this state, other than a county, performing or authorized to perform multiple and substantial municipal functions, specifically including either the function of furnishing retail electric service or the function of granting to electric suppliers street franchise rights for use in furnishing retail electric service;
    2. Any geographically defined political subdivision, or agency thereof, of this state if at any relevant time it lawfully furnishes retail electric service; and
    3. Any political subdivision of any other state which furnishes retail electric service within this state.
  6. "Premises" means the building, structure, or facility to which electricity is being or is to be furnished, provided that two or more buildings, structures, or facilities which are located on one tract or contiguous tracts of land and are utilized by one electric consumer shall together constitute one premises; provided, however, that any such building, structure, or facility shall not, together with any other building, structure, or facility, constitute one premises if the permanent service to it is separately metered and the charges for such service are calculated independently of charges for service to any other building, structure, or facility; provided, further, that an outdoor security light, or an outdoor sign requiring less than 2200 watts, shall not constitute a premises.
  7. "Primary supplier" within a municipality in existence on March 29, 1973, means, either:
    1. That electric supplier which, on March 29, 1973, is furnishing service to the majority or to a plurality, whichever is the case, of the retail electric meters then inside the corporate limits of the municipality; or
    2. That electric supplier to which the commission has reassigned a geographic area, previously assigned to another electric supplier, located within such municipality as its limits existed on March 29, 1973.
  8. "Secondary supplier" within a municipality in existence on March 29, 1973, means any electric supplier which owns lines on that date within such municipality and which is not a primary supplier.
  9. "Service" means retail electric service and includes temporary or construction service as well as permanent service but excludes wholesale service and sales for resale.
  10. "To own" or "to belong" or the like means, wherever used in reference to lines being used by an electric supplier, to have any proprietary or possessory interest.
  11. "Unassigned area-A" means a geographic area which, between March 29, 1973, and Sept. 1, 1975, was not an assigned area and was not declared to be an unassigned area-B.
  12. "Unassigned area-B" means a geographic area which has not been assigned and which has been declared by the commission to be, or by operation of this part becomes, an unassigned area-B, and inside which an electric supplier shall have the right to extend and thereafter continue furnishing service to new premises locating therein if chosen by the consumer utilizing such premises, provided that an electric supplier whose line, as it exists on March 29, 1973, or as thereafter lawfully constructed to serve new premises pursuant to this part, is at least partially within 500 feet of such new premises shall have the exclusive right to extend and continue furnishing service to such premises if the line of every other electric supplier so existing or so thereafter constructed is at that time wholly more than 500 feet from such premises.
  13. "Wholly new municipality" means a municipality initially coming into existence after March 29, 1973, but not one resulting from the reincorporation of all or any portion of a geographic area theretofore contained in a previously existing municipality or from the merger, consolidation, or any other combination of two or more political subdivisions which are counties or incorporated cities.

(Ga. L. 1973, p. 200, § 3; Ga. L. 1982, p. 3, § 46; Ga. L. 2006, p. 72, § 46/SB 465.)

The 2006 amendment, effective April 14, 2006, part of an Act to revise, modernize, and correct the Code, substituted the present provisions of paragraph (2) for the former provisions, which read: "'Electric membership corporation' means a corporation organized under Article 2 of this chapter."

Law reviews.

- For article, "Administrative Law," see 53 Mercer L. Rev. 81 (2001).

JUDICIAL DECISIONS

Paragraph 4 of Ga. L. 1973, p. 200, § 3 (see O.C.G.A.46-3-3), is not an arbitrary or capricious definition, but instead is reasonably related to the purposes of this part of Ga. L. 1973, p. 200 (see O.C.G.A. Ch. 3, T. 46). City of Calhoun v. North Ga. Elec. Membership Corp., 233 Ga. 759, 213 S.E.2d 596 (1975).

New premises distinct from older facility.

- A new jail built on land owned by a county and on which an existing correctional facility is also located, although connected by permanent enclosed covered walkways to a new, free-standing dining facility which was built at the same time as the new jail was not an addition to or extension of the existing correctional facility, but was a new premises physically separate from the existing facility, physically distinct with a separate electric system. The two facilities constituted two separate entities in terms of purpose and operation with two different legal entities responsible for operating the different facilities. Colquitt Elec. Membership Corp. v. City of Moultrie, 197 Ga. App. 794, 399 S.E.2d 497 (1990).

Under O.C.G.A. § 46-3-8(a), a utility was entitled to provide electrical service to a high school's new auditorium, even though a city had been providing service to the school itself, as the utility was providing service to new premises. O.C.G.A. § 46-3-3(6) defined "premises" as separately metered structures; the auditorium was separately metered from the school, and the city could not explain how the facilities could properly be billed through a single master meter. City of LaGrange v. Ga. PSC, 296 Ga. App. 615, 675 S.E.2d 525 (2009).

Unified government may be "municipality."

- Where a unified government is a geographically defined political subdivision of the state performing or authorized to perform multiple and substantial municipal functions, so long as it is "other than a county," it is a "municipality." Athens-Clarke County v. Walton Elec. Membership Corp., 265 Ga. 229, 454 S.E.2d 510 (1995).

Continuing service under grandfather clause.

- Trial court properly upheld an agency decision that a power company had the right to continue service to an apartment complex under the grandfather clause to the Territorial Act, O.C.G.A. § 46-3-8(b), after individual meters were installed to replace one master meter because none of the exceptions to the grandfather clause existed and the challenging electric corporation failed to raise the corporation's challenge to the application of the grandfather clause before the agency. Excelsior Elec. Mbrshp. Corp. v. Ga. PSC, 322 Ga. App. 687, 745 S.E.2d 870 (2013).

High school "premises" included new gym building.

- When a county high school that was within the electric territory assigned to an electric membership corporation under the Georgia Territorial Electric Service Act, O.C.G.A. § 46-3-1 et seq., but which had chosen a city electric company to provide electric service under the large load exception to the Act, O.C.G.A. § 46-3-8(a), built a new gym contiguous to the existing classroom building, the grandfather clause of the Act, § 46-3-8(b), applied, and the city had the right to supply electricity to the gym. Central Ga. Elec. Mbrshp. Corp. v. Ga. Pub. Serv. Comm'n, 351 Ga. App. 69, 830 S.E.2d 459 (2019).

Cited in North Georgia Elec. Membership Corp. v. City of Dalton, 197 Ga. App. 386, 398 S.E.2d 209 (1990); City of LaGrange v. Troup County Elec. Membership Corp., 200 Ga. App. 418, 408 S.E.2d 708 (1991).

46-3-4. Assignment or declaration as unassigned areas-B of geographic areas outside municipal limits as of March 29, 1973.

After March 29, 1973, and continuing thereafter as rapidly as it is administratively practicable to do so, the commission is authorized and directed to assign to electric suppliers or to declare as unassigned areas-B all geographic areas in this state that were, on March 29, 1973, located outside the corporate limits of any municipality. Such assignments and declarations of unassignment shall be effected by the commission in accordance with the following standards:

  1. Assigned areas shall be described by defined boundaries on maps to be filed with the commission and incorporated by it in its orders. Where deemed necessary or appropriate, the commission may require boundaries to be additionally described by written metes and bounds;
  2. Each geographic area assigned shall be assigned to only one electric supplier, as determined by public convenience and necessity, having primary regard for the location of electric suppliers' lines but having no regard for differences in electric suppliers' retail rates or for the fact that retail consumers are not then being served from such lines;
  3. Each geographic area assigned shall be so assigned that its boundaries enclose land spaces in which the assignee electric supplier owns all or a preponderance of the lines, provided that a geographic area may be so assigned or declared unassigned even though it is completely surrounded by the inner boundaries of another geographic area assigned to an electric supplier. Boundaries will be located around the perimeter of such land spaces so as to be approximately 1,000 feet from the nearest of the assignee electric supplier's lines so enclosed, provided that if the lines of two or more electric suppliers are closer together than 2,000 feet, the boundary shall be located approximately halfway between them; provided, however, that where compelling factors of public convenience and necessity so require, including the need for using natural and manmade landmarks for boundary references, the location of a boundary may vary somewhat more or somewhat less than such 1,000 foot or halfway distance; provided, further, that such 1,000 foot or halfway distance standards shall not apply to any lines of the assignee electric supplier which extend from inside the assigned area outside such area or to any lines of any other electric supplier which extend from outside the area inside or completely across such area and which do not otherwise occasion assignment or unassignment of land space, the rights and restrictions applying to such other electric supplier's lines inside such area being as provided for in paragraph (4) of this Code section;
  4. A line of an electric supplier which extends into or completely crosses a land space in which another electric supplier owns a preponderance of the lines may nevertheless be considered as the basis for assigning or declaring unassigned land space related thereto; but, unless such line so occasions an assignment or an unassignment, then, from and after the date of the assignment to an electric supplier of the geographic area within which such line is enclosed and based upon the location of both suppliers' lines on that date, the electric supplier owning such enclosed line shall have the exclusive right to extend and continue furnishing service to all new premises locating at least partially within 500 feet of such line and wholly more than 500 feet from the assignee electric supplier's lines and shall have the right, if chosen by the consumer utilizing such premises, to extend and continue furnishing service to new premises locating at least partially within 500 feet of both electric suppliers' lines but shall not otherwise have the right, unless so agreed by the assignee electric supplier and the consumer utilizing such premises, to extend and furnish service to any other premises locating inside such assigned area;
  5. Except where public convenience and necessity require their assignment, the commission shall declare as unassigned areas-B those land spaces which are not assigned to an electric supplier pursuant to any other provision of this part; and
  6. Not inconsistent with Code Section 46-3-8, any electric supplier may apply to the commission for assignment to it of one or more geographic areas or for the commission to declare one or more geographic areas to be unassigned areas-B.

(Ga. L. 1973, p. 200, § 4.)

Law reviews.

- For annual survey of law on administrative law, see 62 Mercer L. Rev. 1 (2010). For article, "The Chevron Two-Step in Georgia's Administrative Law," see 46 Ga. L. Rev. 871 (2012).

JUDICIAL DECISIONS

No unconstitutional delegation of legislative power.

- Ga. L. 1973, p. 200, § 4 (see O.C.G.A.46-3-4) is not an unconstitutional delegation of legislative power pursuant to Ga. Const. 1976, Art. III, Sec. I, Para. I (Ga. Const. 1983, Art. III, Sec. I, Para. I). City of Calhoun v. North Ga. Elec. Membership Corp., 233 Ga. 759, 213 S.E.2d 596 (1975).

Bases of assignments of service areas not unconstitutional.

- Basing assignments of service areas primarily on the presence or absence of electric lines does not violate Ga. Const. 1976, Art. I, Sec. II, Para. VII (Ga. Const. 1983, Art. III, Sec. VI, Para. IV). City of Calhoun v. North Ga. Elec. Membership Corp., 233 Ga. 759, 213 S.E.2d 596 (1975).

Restraint on competition for benefit of public.

- To the extent the assignment of service areas under Ga. L. 1973, p. 200, § 4 (see O.C.G.A.46-3-4) restrains competition, the restraint is for the benefit of the public in minimization of duplication of facilities and prevention of other adverse economic and environmental effects and thus does not violate Ga. Const. 1976, Art. III, Sec. VIII, Para. VIII (Ga. Const. 1983, Art. III, Sec. VI, Para. V). City of Calhoun v. North Ga. Elec. Membership Corp., 233 Ga. 759, 213 S.E.2d 596 (1975).

Method of accomplishment of goals of furnishing electric service and minimizing interference.

- Both the goals of the orderly furnishing of electric service and minimizing interference stated in Ga. L. 1973, p. 200, § 2 (see O.C.G.A. § 46-3-2) can be accomplished by basing assignments of electricity service areas primarily upon the location of electric lines pursuant to paragraph (2) of Ga. L. 1973, p. 200, § 4 (see O.C.G.A.46-3-4). City of Calhoun v. North Ga. Elec. Membership Corp., 233 Ga. 759, 213 S.E.2d 596 (1975).

Corridor rights.

- O.C.G.A. § 46-3-4 establishes a method for assigning an electrical service territory and, within that framework, provides corridor-right protection for non-assigned suppliers who own lines in an area on the assignment date; thus, as power company one owned a transmission line that was located within 500 feet of two office buildings when a service territory was assigned to it in 1975, power company two could not establish corridor rights for supplying power to the two buildings even though company two had acquired the subject transmission line seven years after the territorial assignment. Ga. Power Co. v. Ga. PSC, 296 Ga. App. 556, 675 S.E.2d 294 (2009).

An electric membership corporation did not obtain corridor rights under O.C.G.A. § 46-3-4(4) to serve customers in another power company's territory by virtue of the corporation's ownership of a transmission line in that area because there was only one supplier when the territory was assigned to the other power company. Sumter Elec. Mbrshp. Corp. v. Ga. Power Co., 286 Ga. 605, 690 S.E.2d 607 (2010).

RESEARCH REFERENCES

ALR.

- Duty to extend electrical service or supply individual applicant as affected by cost involved, 58 A.L.R. 537.

46-3-5. Assignment of geographic areas within municipal limits as of March 29, 1973.

Except as otherwise provided in subsection (a) of Code Section 46-3-8, all geographic areas inside the corporate limits of every municipality, as such limits existed on March 29, 1973, are assigned to the primary supplier, subject to the rights and restrictions applying to electric suppliers owning lines therein, as follows: Based upon the location of all electric suppliers' lines therein on March 29, 1973, every secondary supplier shall have the exclusive right to extend and continue furnishing service to new premises locating therein at least partially within 300 feet of its line and wholly more than 300 feet from the lines of every other electric supplier; and shall have the right, if chosen by the consumer utilizing such premises, to extend and continue furnishing service to new premises locating therein at least partially within 300 feet of both its lines and the lines of any other electric supplier; but shall not otherwise have the right, unless so agreed by the primary supplier and by any other secondary supplier whose lines are located at least partially within 300 feet thereof and the consumer utilizing such premises, to extend and continue furnishing service to any other premises locating therein, which shall be the exclusive right of the primary supplier or such other secondary supplier, if such be the case.

(Ga. L. 1974, p. 200, § 5; Ga. L. 1982, p. 3, § 46.)

JUDICIAL DECISIONS

Bases of assignments of service areas not unconstitutional.

- Basing assignments of service areas primarily on the presence or absence of electric lines does not violate Ga. Const. 1976, Art. I, Sec. II, Para. VII (Ga. Const. 1983, Art. III, Sec. VI, Para. IV). City of Calhoun v. North Ga. Elec. Membership Corp., 233 Ga. 759, 213 S.E.2d 596 (1975).

46-3-6. Assignment and unassignment of geographic areas included within wholly new municipalities after March 29, 1973.

As to geographic areas which, after March 29, 1973, are included within the initial limits of a wholly new municipality, the rights and restrictions applying to electric suppliers shall be as follows:

  1. Any portion of such geographic area then already assigned to an electric supplier shall continue to be so assigned until and unless reassigned by the commission to another electric supplier pursuant to paragraph (1) of subsection (d) of Code Section 46-3-8; and
  2. Any portion of such geographic area which is then unassigned shall continue to be so unassigned until and unless it is assigned by the commission, taking into account the recommendation, if any, of the municipality itself, to an electric supplier pursuant to paragraph (2) of subsection (d) of Code Section 46-3-8.

(Ga. L. 1973, p. 200, § 6; Ga. L. 1982, p. 3, § 46.)

JUDICIAL DECISIONS

Bases of assignments of service areas not unconstitutional.

- Basing assignments of service areas primarily on the presence or absence of electric lines does not violate Ga. Const. 1976, Art. I, Sec. II, Para. VII (Ga. Const. 1983, Art. III, Sec. VI, Para. IV). City of Calhoun v. North Ga. Elec. Membership Corp., 233 Ga. 759, 213 S.E.2d 596 (1975).

46-3-7. Assignment and unassignment of geographic areas annexed to municipalities after March 29, 1973.

Whenever, after March 29, 1973, any geographic area is annexed to a municipality including the inclusion of a geographic area in a new municipality formed by the merger, consolidation, or any other combination of a then existing municipality and one or more other geographically defined political subdivisions, if the resulting political subdivision constitutes a municipality as defined in Code Section 46-3-3, such geographic area shall be assigned or assignable or become unassigned, and the rights and restrictions applying to electric suppliers therein shall be as follows:

  1. In so much of such geographic area, if any, as was immediately theretofore within the limits of a municipality as they existed on March 29, 1973, or as they existed on the date on which a wholly new municipality came into existence, and if such annexation is caused by the merger, consolidation, or any other combination of such previously existing municipality and one or more other geographically defined political subdivisions, resulting in a political subdivision which constitutes a municipality as defined in Code Section 46-3-3, the rights and restrictions applying to all electric suppliers therein shall continue to be governed by Code Section 46-3-5 or 46-3-6, whichever is applicable;
  2. As to such geographic areas other than those provided for in paragraph (1) of this Code section:
    1. So much of such geographic area, if any, as was already assigned to a primary supplier within a municipality which was in existence on March 29, 1973, shall continue to be so assigned, provided that if such annexation is caused by the merger, consolidation, or any other combination of two or more such municipalities having different primary suppliers, such assignments shall continue in favor of such primary suppliers respectively;
    2. If the annexation is to a wholly new municipality, then so much of such geographic area, if any, as was already assigned to an electric supplier then serving as an assignee electric supplier within such municipality shall continue to be so assigned;
    3. If such annexation includes one or more wholly new municipalities or one or more municipalities which were in existence on March 29, 1973, then so much of such geographic area, if any, as was then contiguous to a wholly new municipality and was already assigned to an assignee electric supplier within such wholly new municipality, or which was contiguous to a municipality which was in existence on March 29, 1973, and was already assigned to the primary supplier within such municipality, shall continue to be so assigned;
    4. As to such geographic areas which are annexed by other than merger, consolidation, or other combination of a previously existing municipality and one or more other geographically defined political subdivisions so as to result in a political subdivision which constitutes a municipality as defined in Code Section 46-3-3 but are not provided for in paragraph (1) of this Code section or in subparagraphs (A), (B), and (C) of this paragraph, so much of such geographic area, if any, as was already assigned to any electric supplier shall continue to be so assigned. In the event the primary supplier delivers, not less than 45 nor more than 90 days prior to the effective date of such annexation, written notice of such annexation upon every other electric supplier owning lines within the county or counties in which the annexing municipality is located (or, though not in the same county, within one mile of any portion of such geographic area), such portions of such geographic area as shall not have been already assigned to any other electric supplier shall by operation of this part become assigned to the primary supplier unless, on or before the effective date of such annexation, there is filed with the commission one or more applications by one or more other electric suppliers for the assignment of any portion of such geographic area. If such an application or applications are filed, then, until there is a final determination with respect to such application or applications, the service rights and restrictions applying to electric suppliers in so much of such geographic area as is the subject matter of the application or applications shall continue as they were immediately prior to the effective date of annexation. In such a proceeding, the commission, acting in accordance with Code Section 46-3-4, may make assignments of all or any portion of such geographic area to one or more applicant electric suppliers. Any portion of such geographic area not so assigned to any other electric supplier shall, effective as of the final determination of such application or applications, be assigned by operation of this part to the primary supplier, provided that if the commission finds and determines upon complaint that such assignment to the primary supplier of any such portion thereof will be grossly inimical to the public interest, it shall designate such portion as an unassigned area-B. In any geographic area assigned by operation of this part pursuant to this subparagraph, every secondary supplier shall have, based upon the location of all secondary suppliers' lines therein on the effective date of the annexation, the exclusive right to extend and continue furnishing service to new premises locating therein at least partially within 300 feet of its line and wholly more than 300 feet from the lines of every other electric supplier; and shall have the right, if chosen by the consumer utilizing such premises, to extend and continue furnishing service to new premises locating therein at least partially within 300 feet of both its lines and the lines of any other electric supplier; but shall not otherwise have the right, unless so agreed by the assignee electric supplier and by any other secondary supplier whose lines are located at least partially within 300 feet thereof and the consumer utilizing such premises, to extend and continue furnishing service to any other premises locating therein, which shall be the exclusive right of the assignee electric supplier or such other secondary supplier, if such be the case; or
    5. If such geographic area was already an unassigned area-A or an unassigned area-B and was annexed by merger, consolidation or other combination of a previously existing municipality and one or more other geographically defined political subdivisions so as to result in a political subdivision which constitutes a municipality as defined in Code Section 46-3-3, or if such an unassigned area-A or unassigned area-B was otherwise annexed but the notice of annexation required by subparagraph (D) of this paragraph was not given, such geographic area shall, on the effective date of the annexation, become or continue to be, as the case may be, an unassigned area-B until and unless the commission assigns all or any portion thereof to an electric supplier pursuant to paragraph (2) of subsection (d) of Code Section 46-3-8.

(Ga. L. 1973, p. 200, § 7; Ga. L. 1982, p. 3, § 46.)

Cross references.

- Annexation of territory by municipalities generally, Ch. 36, T. 36.

JUDICIAL DECISIONS

Bases of assignments of service areas not unconstitutional.

- Basing assignments of service areas primarily on the presence or absence of electric lines does not violate Ga. Const. 1976, Art. I, Sec. II, Para. VII (Ga. Const. 1983, Art. III, Sec. VI, Para. IV). City of Calhoun v. North Ga. Elec. Membership Corp., 233 Ga. 759, 213 S.E.2d 596 (1975).

Statutory scheme created by subparagraph (2)(D) of O.C.G.A. § 46-3-7 is clear and unambiguous. Marietta Bd. of Lights & Water v. Georgia Pub. Serv. Comm'n, 182 Ga. App. 702, 356 S.E.2d 737 (1987).

46-3-8. Exceptions, grandfather rights, and other rights.

  1. Notwithstanding any other provision of this part, but subject to subsections (b) and (c) of this Code section, after March 29, 1973, service to one or more new premises (but if more than one, such premises must be located on the same tract or on contiguous tracts of land), if utilized by one consumer and having single-metered service and a connected load which, at the time of initial full operation of the premises, is 900 kilowatts or greater (excluding redundant equipment), may be extended and furnished, if chosen by the consumer:
    1. By the primary supplier within a municipality if the premises are located anywhere within the limits of such municipality as they existed on March 29, 1973;
    2. By a secondary supplier within the limits of a municipality as they existed on March 29, 1973, if the premises are located at least partially within 300 feet of the lines of such secondary supplier;
    3. By any electric supplier if the premises are located within the initial corporate limits of a wholly new municipality;
    4. By any electric supplier owning lines in a municipality if the premises are located in a geographic area annexed in any manner to such municipality after March 29, 1973; and
    5. By any electric supplier if the premises are located outside the limits of a municipality.
  2. Notwithstanding any other provision of this part, but subject to subsections (c) and (h) of this Code section, every electric supplier shall have the exclusive right to continue serving any premises lawfully served by it on March 29, 1973, or thereafter lawfully served by it pursuant to this part, including any premises last and previously served by it which before or after March 29, 1973, have become disconnected from service for any reason, and including premises which before or after March 29, 1973, have been destroyed or dismantled and which are reconstructed after March 29, 1973, in substantial kind on approximately the same site.
  3. Notwithstanding any other provision of this part:
    1. Upon its own complaint or the complaint of any other electric supplier or any other interested party, the commission shall have the authority and jurisdiction, after notice to all affected electric suppliers and after hearing, if a hearing is requested by any affected electric supplier or any other interested party, to find and determine that the service of an electric supplier then serving a premises or exclusively entitled under this part to serve such premises is not adequate or dependable or that such electric supplier's rates, charges, service rules and regulations, or the application thereof unreasonably discriminate in favor of or against the consumer utilizing such premises, or that an electric supplier is in violation of subsection (b) of Code Section 46-3-11. Upon such determination, the commission shall have the authority and jurisdiction to order such electric supplier within a reasonable time to make such improvements as will make its service adequate and dependable, or to order such electric supplier within not less than 30 days to cease employing such discriminatory rates, charges, service rules and regulations, or the application thereof or the practices prohibited by subsection (b) of Code Section 46-3-11 and to substitute in lieu thereof, subject to approval by the commission, rates, charges, service rules and regulations, and practices of application thereof which are not unreasonably discriminatory, or practices in conformity with subsection (b) of Code Section 46-3-11. If the commission finds and determines in its first consideration of the matter that such electric supplier is unwilling or unable within a reasonable time to make its service adequate and dependable, or is unwilling within 30 days to cease and correct such unreasonable discrimination or practices, or if it finds in a subsequent consideration of the matter that its order to improve service, its order to cease and correct the unreasonable discrimination, or its order to cease and correct such practices has not been timely and in good faith complied with, it may then order such electric supplier to cease or desist from serving such premises and order any other electric supplier which may reasonably do so to extend and furnish service to such premises; and
    2. Upon the joint application of the affected electric suppliers, the commission shall have the authority and jurisdiction, after notice to all affected persons and after hearing, if a hearing is requested, to find and determine that the public convenience and necessity require, and thereupon to approve, the transfer of service from one electric supplier to another electric supplier.
  4. Notwithstanding any other provision of this part, but subject to subsection (b) of this Code section, the commission may:
    1. If it determines that an assignee electric supplier has breached the tenets of public convenience and necessity therein, reassign all or any portion of an area assigned to that assignee electric supplier to another electric supplier; and
    2. If it determines that public convenience and necessity so require, assign to any electric supplier all or any portion of a geographic area which theretofore has been an unassigned area-A or an unassigned area-B.
  5. Notwithstanding any other provision of this part:
    1. No portion of a line constructed after March 29, 1973, by an electric supplier inside another electric supplier's assigned area, inside an unassigned area-A, or inside a municipality to serve premises which, but for the exception provided for in subsection (a) of this Code section, it would not have had the right to serve shall acquire any other service rights therein or impair or diminish any service rights of an assignee electric supplier or the service rights accruing to the lines of any electric supplier inside any assigned area, unassigned area-A, or municipality, provided that such electric supplier may extend and furnish service from such line to any other premises which it otherwise has the right to serve;
    2. No portion of a line constructed after March 29, 1973, by an electric supplier inside an unassigned area-B to serve premises which, but for the exception provided for in subsection (a) of this Code section, it would not have had the right to serve shall impair or diminish any service rights accruing to the lines of any other electric supplier inside such unassigned area-B, provided that such electric supplier may extend and furnish service from such line to any other premises which it otherwise has the right to serve;
    3. No portion of a line constructed after March 29, 1973, by an electric supplier for the initial sole purpose of furnishing service at wholesale shall acquire any other service rights or impair or diminish the service rights of any assignee electric supplier or the service rights accruing to the lines of any electric supplier, provided that such electric supplier may extend and furnish service from such line to any other premises which it otherwise has the right to serve;
    4. No electric supplier shall, after March 29, 1973, construct its lines to serve new premises except in accordance with sound electric utility standards. If, after a hearing involving the affected electric suppliers and any other interested party, the commission determines that an electric supplier is about to violate, is violating, or has violated such standards so as arbitrarily to preempt areas or arbitrarily to gain service rights for such a line, the commission is authorized and directed:
      1. To order the offending electric supplier to cease and desist such construction or to alter and relocate the same; or
      2. To declare that such line or any offending portion thereof shall not be taken into account in assigning an area or in locating an assigned area boundary or shall not acquire any service rights that would otherwise accrue thereto or impair or diminish any service rights accruing to the lines of any other electric supplier;
    5. Any electric supplier may extend and furnish service to any of its own premises devoted to public service, whether the same shall have already been served by another electric supplier, but no line constructed for such purpose after March 29, 1973, shall acquire any other service right or impair or diminish the service rights of any assignee electric supplier or the service rights accruing to the lines of any electric supplier, provided that such electric supplier may extend and furnish service from such line to other premises which it otherwise has the right to serve;
    6. No line of a secondary supplier constructed prior to March 29, 1973, which on that date is not providing retail service to one or more premises within the limits of the municipality as they exist on that date shall acquire any service rights to provide retail service to any premises located within such municipal limits as they exist on that date.
  6. The time at which an electric supplier, based upon the location or proximity of electric suppliers' lines as in this part provided for, shall be considered as having the right to extend and furnish, or as being restricted from extending and furnishing, service to new premises shall be the time at which written application for temporary construction or permanent service is made to any electric supplier by the consumer utilizing such premises or the time at which construction of such premises is commenced, whichever first occurs. The location of a premises for temporary construction service shall be deemed to be the same as the location of the premises which shall require permanent service after construction. If temporary construction service is required at one site for the purpose of beginning the construction of premises at two or more sites, this subsection shall not preclude an electric supplier, if chosen by the builder and having the right to serve at least one of the premises to be constructed, from furnishing all of such temporary construction service, notwithstanding the fact that one or more other electric suppliers may have and may exercise the exclusive right thereafter to extend and furnish the permanent service to one or more of the premises being constructed.
  7. Whenever, after March 29, 1973, any new premises requiring service are so sited as to be located partially within an assigned area, an unassigned area-A, or an unassigned area-B and also partially within any other assigned area, unassigned area-A, or unassigned area-B, such premises may be served by that electric supplier chosen by the consumer utilizing such premises from among the electric suppliers which are eligible under this part to extend and furnish such service within any of such areas.
  8. Notwithstanding any other provisions of this part, if a majority of those voters of a municipality which was not rendering electric service on March 29, 1973, approve, by means of referendum vote, the purchase, construction, extension, operation, and maintenance of an electric distribution system by that municipality, such municipality is granted the right of eminent domain to condemn all of the lines and other facilities of the primary supplier within such municipality and any secondary supplier located within the corporate limits of such municipality and used to serve customers therein at retail. This right shall expire, with respect to each such municipality, one year after the date the results of such referendum are declared unless, before that date, such municipality institutes proceedings to acquire such lines and other facilities under any of the statutory methods provided for the condemnation of private property. Upon a final order of condemnation of such lines and other facilities, such municipality shall become the primary supplier therein, the rights of the former primary supplier and any such secondary suppliers under subsection (b) of this Code section shall cease, and the consumers served thereby within such corporate limits shall be thereafter served by the municipality as the new primary supplier. The transfer of service shall be accomplished as nearly as practicable without interruption of service to the consumers. Electric suppliers are authorized to negotiate the sale and purchase of all or any part of any such lines and other facilities, and upon the transfer of title thereto the rights of the selling supplier under subsection (b) of this Code section shall cease.

(Ga. L. 1973, p. 200, § 9.)

Law reviews.

- For article, "Administrative Law," see 53 Mercer L. Rev. 81 (2001). For annual survey on administrative law, see 61 Mercer L. Rev. 1 (2009). For article, "The Chevron Two-Step in Georgia's Administrative Law," see 46 Ga. L. Rev. 871 (2012).

JUDICIAL DECISIONS

No unconstitutional denial of equal protection in subsection (a).

- The exemption in subsection (a) of Ga. L. 1973, p. 200, § 9 (see O.C.G.A. § 46-3-8) allowing large load customers free choice was not arbitrary, capricious, or wholly unreasonable but based upon real differences between two groups of customers and between the effects upon electric utilities and the communities in which they locate. Therefore, that subsection is not a denial of equal protection prohibited by Ga. Const. 1976, Art. I, Sec. II, Para. III (Ga. Const. 1983, Art. I, Sec. I, Para. II). City of Calhoun v. North Ga. Elec. Membership Corp., 233 Ga. 759, 213 S.E.2d 596 (1975).

This section not unlawful attempt to regulate or fix charges of municipal utilities.

- Ga. L. 1973, p. 200, § 9 (see O.C.G.A. § 46-3-8) does not attempt to interfere with either the municipality or the electric membership corporation in the establishment of their rate levels. Therefore, it is clear that the section does not constitute an unlawful attempt to regulate or fix the charges of municipal utilities prohibited by Ga. Const. 1976, Art. III, Sec. VIII, Para. IX (Ga. Const. 1983, Art. III, Sec. VI, Para. V), subject to the exception in Ga. Const. 1976, Art. IX, Sec. VIII, Para. I (Ga. Const. 1983, Art. IX, Sec. VI, Para. I, II; Art. XI, Sec. I, Para. IV). City of Calhoun v. North Ga. Elec. Membership Corp., 233 Ga. 759, 213 S.E.2d 596 (1975).

Subsection (a) of Ga. L. 1973, p. 200, § 8 (see O.C.G.A. § 46-3-8) not shown to be unconstitutional under Const. 1976, Art. I, Sec. II, Para. VII. City of Calhoun v. North Ga. Elec. Membership Corp., 233 Ga. 759, 213 S.E.2d 596 (1975).

Office park not within "large load" exception.

- Multi-building office park did not qualify for the benefit of the "large load" exception of O.C.G.A. § 46-3-8(a), where the premises was not conceived as a unified rental premises for its entire useful life and the metering arrangement for the premises did not comply in substance with the single-meter requirement of the exception. City of Norcross v. Georgia Power Co., 197 Ga. App. 891, 399 S.E.2d 725 (1990).

"Large load" exception strictly construed.

- The "large load" exception of O.C.G.A. § 46-3-8(a), being an exception to the general rule of competitive restriction, must be strictly construed. City of Norcross v. Georgia Power Co., 197 Ga. App. 891, 399 S.E.2d 725 (1990).

The large-load exception did not apply.

- An individually-metered apartment complex in which the complex's owner installed separate meters that were combined under a master or pass-through meter, notwithstanding that the owner paid the bill for the entire complex and employed an outside company to read the separate meters and bill each tenant for their individual usage did not qualify for the large load exception. Sawnee Elec. Mbrshp. Corp. v. Georgia PSC, 273 Ga. 702, 544 S.E.2d 158 (2001).

Large load consumer choice of electrical supplier evidenced by contract.

- Under the Georgia Territorial Act, a large load customer's choice of an electrical supplier must be evidenced by a binding contract with the supplier, reached through mutual assent and meeting the other requirements for contract formation under Georgia law. Jackson Elec. Mbrshp. Corp. v. Ga. PSC, 294 Ga. App. 253, 668 S.E.2d 867 (2008), cert. denied, No. S09C0356, 2009 Ga. LEXIS 201 (Ga. 2009).

Large load consumer had valid contract with designated territorial supplier.

- An electric membership corporation alleged that an electric utility company, a consumer's designated territorial supplier, falsely told the consumer it did not qualify as a large load consumer under O.C.G.A. § 46-3-8(a) and thus had to select the utility as the consumer's provider, and that the consumer's request-for-services form was void because the form was based on this misrepresentation. As the hearing officer's findings - that the allegations of misrepresentation were untenable and that the consumer and utility had a binding contract - were supported by the evidence, the findings were upheld. Jackson Elec. Mbrshp. Corp. v. Ga. PSC, 294 Ga. App. 253, 668 S.E.2d 867 (2008), cert. denied, No. S09C0356, 2009 Ga. LEXIS 201 (Ga. 2009).

Supplier not empowered to supply electricity to one not wanting any.

- Subsection (b) of Ga. L. 1973, p. 200, § 9 (see O.C.G.A. § 46-3-8) does not empower the city to supply electricity to one who does not want any electricity at all. Frier v. City of Douglas, 233 Ga. 775, 213 S.E.2d 607 (1975).

Subsection (b) inapplicable to temporary service.

- Subsection (b) of O.C.G.A. § 46-3-8, the grandfather clause, does not authorize a supplier of temporary electrical services to a large load consumer the exclusive right to later furnish permanent services to the consumer; therefore, a city's provision of temporary electrical service to a large load consumer at a construction site does not preclude the consumer under paragraph (a)(4) and subsection (f) from choosing another authorized supplier for permanent service to the completed site. City of LaGrange v. Georgia Power Co., 185 Ga. App. 60, 363 S.E.2d 286 (1987), cert. denied, 185 Ga. App. 909, 363 S.E.2d 286 (1988).

Transfer versus continuance of services.

- A city, which had been providing electricity to a high school, argued that a utility could not continue to service the school's ball field lights because the utility did not comply with the requirements of O.C.G.A. § 46-3-8(c)(2). This argument failed because § 46-3-8(c)(2) pertains to the transfer of electric service as opposed to the continuance of service. City of LaGrange v. Ga. PSC, 296 Ga. App. 615, 675 S.E.2d 525 (2009).

Electric supplier determined at time consumer applies for service.

- The fact that a consumer later builds a formerly uncontemplated structure in an area which would qualify the consumer for service by a secondary supplier does not abrogate the provision of O.C.G.A. § 46-3-8(f) that the electrical supplier is determined at the moment the consumer makes an application for service. City of Marietta Bd. of Lights & Water v. Georgia Power Co., 176 Ga. App. 123, 335 S.E.2d 467 (1985).

Nonretail service to premises outside agreed territory.

- Commission properly found city's plan to provide service to its own facility outside of service area did not violate Territorial Agreement. See North Ga. Elec. Membership Corp. v. City of Calhoun, 195 Ga. App. 382, 393 S.E.2d 510 (1990).

Continuing service under grandfather clause.

- Trial court properly upheld an agency decision that a power company had the right to continue service to an apartment complex under the grandfather clause to the Territorial Act, O.C.G.A. § 46-3-8(b), after individual meters were installed to replace one master meter because none of the exceptions to the grandfather clause existed and the challenging electric corporation failed to raise the corporation's challenge to the application of the grandfather clause before the agency. Excelsior Elec. Mbrshp. Corp. v. Ga. PSC, 322 Ga. App. 687, 745 S.E.2d 870 (2013).

When a county high school that was within the electric territory assigned to an electric membership corporation under the Georgia Territorial Electric Service Act, O.C.G.A. § 46-3-1 et seq., but which had chosen a city electric company to provide electric service under the large load exception to the Act, O.C.G.A. § 46-3-8(a), built a new gym contiguous to the existing classroom building, the grandfather clause of the Act, § 46-3-8(b), applied, and the city had the right to supply electricity to the gym. Central Ga. Elec. Mbrshp. Corp. v. Ga. Pub. Serv. Comm'n, 351 Ga. App. 69, 830 S.E.2d 459 (2019).

New premises distinct from older facility.

- A new jail built on land owned by a county and on which an existing correctional facility is also located, although connected by permanent enclosed covered walkways to a new, free-standing dining facility which was built at the same time as the new jail was not an addition to or extension of the existing correctional facility, but was a new premises physically separate from the existing facility, physically distinct with a separate electric system. The two facilities constituted two separate entities in terms of purpose and operation with two different legal entities responsible for operating the different facilities. Colquitt Elec. Membership Corp. v. City of Moultrie, 197 Ga. App. 794, 399 S.E.2d 497 (1990).

Under O.C.G.A. § 46-3-8(a), a utility was entitled to provide electrical service to a high school's new auditorium, even though a city had been providing service to the school itself, as the utility was providing service to new premises. O.C.G.A. § 46-3-3(6) defined "premises" as separately metered structures; the auditorium was separately metered from the school, and the city could not explain how the facilities could properly be billed through a single master meter. City of LaGrange v. Ga. PSC, 296 Ga. App. 615, 675 S.E.2d 525 (2009).

Cited in Greensboro Lumber Co. v. Georgia Power Co., 643 F. Supp. 1345 (N.D. Ga. 1986); Jackson Elec. Membership Corp. v. Georgia Power Co., 257 Ga. 772, 364 S.E.2d 556 (1988); Federated Dep't Stores, Inc. v. Ga. PSC, 278 Ga. App. 239, 628 S.E.2d 658 (2006).

RESEARCH REFERENCES

ALR.

- Duty to extend electrical service or supply individual applicant as affected by cost involved, 58 A.L.R. 537.

46-3-9. Limitation on power of electric membership corporations to furnish service within municipalities.

Notwithstanding any other provision of law, no electric membership corporation shall be authorized or empowered to furnish service inside the corporate limits of any municipality except:

  1. If it is already furnishing service therein on March 29, 1973, or if its lines become annexed, including annexation that may be caused by the merger, consolidation, or any other combination of a then existing municipality and one or more other geographically defined political subdivisions, if the resulting political subdivision constitutes a municipality as defined in Code Section 46-3-3, or if its lines become included in a wholly new municipality, in any of which events the other relevant Code sections of this part shall apply and prevail;
  2. To extend and furnish service initially inside a municipality the population of which at the time of such initial service is 1,500 or less, but not inconsistently with the other Code sections of this part; or
  3. Notwithstanding paragraphs (1) and (2) of this Code section, if the municipality and all electric suppliers then furnishing service inside such municipality or furnishing electric service to the municipality at wholesale so consent.

(Ga. L. 1973, p. 200, § 13; Ga. L. 1982, p. 3, § 46.)

RESEARCH REFERENCES

C.J.S.

- 29 C.J.S., Electricity, § 10.

46-3-10. Limitation on power of electric suppliers to condemn property of other electric suppliers.

Notwithstanding any other provision of law, no electric supplier shall be authorized or empowered to exercise the power of eminent domain for the purpose of acquiring any property, whether real or personal, of another electric supplier which property is devoted to the public use in furnishing wholesale or retail electric service if such acquisition would destroy or unduly impair or interfere with the operation or use of such property by such other electric supplier.

(Ga. L. 1973, p. 200, § 14.)

RESEARCH REFERENCES

ALR.

- Furnishing electricity to public as public use or purpose for which power of eminent domain may be exercised, 44 A.L.R. 735; 58 A.L.R. 787.

46-3-11. Application by electric supplier of discriminatory rates, charges, or service rules or regulations; prohibited acts by electric suppliers generally.

  1. Every electric supplier is prohibited from having or applying any rate, charge, or service rule or regulation which unreasonably discriminates against or in favor of (1) any member of a class of consumers as opposed to any other consumer who is or should be in the same class of consumers for such purposes, or (2) any class of its consumers as opposed to another class of consumers for such purposes, provided that this prohibition shall not apply to any rate, charge, or service rule or regulation relating solely to service rendered by a municipality to consumers whose premises are located within its limits as they existed on March 29, 1973.
  2. Notwithstanding any other provision of law, every electric supplier is prohibited from, directly or indirectly, by ordinance, law, policy, contract, rate, regulation, or otherwise:
    1. Requiring that a consumer receive retail electric service from such electric supplier as a condition for such consumer to receive from such electric supplier or any other person any goods or other services that are not reasonably related to the furnishing of retail electric service to such consumer's premises;
    2. Offering a consumer lesser charges or more favorable terms or conditions for retail electric service because of such consumer's receiving or agreeing to receive from such electric supplier any goods or other services that are not reasonably related to the furnishing of retail electric service to such consumer's premises;
    3. Imposing higher charges for any goods or other services that are not reasonably related to the furnishing of retail electric service to a consumer's premises because of such consumer's failure or refusal to receive retail electric service from that supplier; or
    4. Furnishing retail electric service to any premises which such electric supplier is not entitled to serve under this part.

(Ga. L. 1973, p. 200, § 10.)

JUDICIAL DECISIONS

This section not unlawful attempt to regulate or fix charges of municipal utilities.

- Ga. L. 1973, p. 200, § 10 (see O.C.G.A. § 46-3-11) does not attempt to interfere with either the municipality or the electric membership corporation in the establishment of their rate levels. Therefore, it is clear that the section does not constitute an unlawful attempt to regulate or fix the charges of municipal utilities prohibited by Ga. Const. 1976, Art. III, Sec. VIII, Para. I (Ga. Const. 1983, Art. III, Sec. VI, Para. I), subject to the exception in Ga. Const. 1976, Art. IX, Sec. VIII, Para. I (Ga. Const. 1983, Art. IX, Sec. VI, Para. I, II; Art. XI, Sec. I, Para. IV). City of Calhoun v. North Ga. Elec. Membership Corp., 233 Ga. 759, 213 S.E.2d 596 (1975).

Electric supplier may recover underbilled services.

- Georgia Supreme Court's decisions under the Georgia Territorial Electric Service Act (GTESA), O.C.G.A. § 46-3-1 et seq., in cases involving under-billing by electricity providers, are not necessarily binding with regard to billing by other utility companies; however, there is no case law suggesting that natural gas providers warrant greater protection than that afforded to electric vendors under the GTESA; with regard to electric provider under-billing cases, the Georgia Supreme Court has not limited the assertion of affirmative defenses to "innocent" electric consumers only and therefore, the United States District Court for the Northern District of Georgia, Atlanta Division, will not impose an "innocent consumer" prerequisite to the assertion of an affirmative defense to a gas utility provider's under-billing claim. City of Lawrenceville v. Ricoh Elecs., Inc., 370 F. Supp. 2d 1328 (N.D. Ga. 2005).

Defenses allowed against recovery of underbilled services.

- When an electric supplier's act results in the underbilling of its customer, and the supplier seeks to recover the correct billing amount, the customer can assert accord and satisfaction, equitable estoppel, or statute of limitation defenses. Brown v. Walton Elec. Mbrshp. Corp., 272 Ga. 453, 531 S.E.2d 712 (2000), reversing Brown v. Walton Elec. Membership Corp., 238 Ga. App. 347, 518 S.E.2d 727 (1999).

Electric supplier may condition sale by it of satellite dish to retail electric service clients.

- An electrical supplier may require a consumer to receive retail electric service from "such electric supplier" as a condition for the consumer to purchase a satellite dish from the supplier, but under O.C.G.A. §§ 46-3-200 and46-3-201, an electric membership corporation must require a consumer to be a member of that EMC before the EMC can sell a satellite dish to the consumer. Washington Elec. Membership Corp. v. Avant, 256 Ga. 340, 348 S.E.2d 647 (1986).

Cited in Greensboro Lumber Co. v. Georgia Power Co., 643 F. Supp. 1345 (N.D. Ga. 1986); Albany Oil Mill, Inc. v. Sumter Elec. Membership Corp., 212 Ga. App. 242, 441 S.E.2d 524 (1994); Federated Dep't Stores, Inc. v. Ga. PSC, 278 Ga. App. 239, 628 S.E.2d 658 (2006).

RESEARCH REFERENCES

ALR.

- Right of public utility corporation to refuse its service because of collateral matter not related to that service, 55 A.L.R. 771.

Variations of electric utility rates based on quantity used, 67 A.L.R. 821.

Right of electrical company to discriminate against a concern which desires service for resale, 112 A.L.R. 773.

Variations of utility rates based on flat and meter rates, 40 A.L.R.2d 1331.

46-3-12. Jurisdiction of commission over electric membership corporations.

All electric membership corporations which furnish service in the State of Georgia and all municipalities, whether incorporated by this state or not, which furnish service inside the state shall, in addition to the manner and extent otherwise provided for in this part, be subject to the authority and jurisdiction of the commission in the same manner as electric light and power companies are subject under other laws of the State of Georgia and regulations of the commission pursuant thereto, provided that the rates, charges, and service rules and regulations of electric membership corporations and municipalities shall be filed with the commission and shall be subject to Code Section 46-3-11 but shall not otherwise be fixed by the commission; provided, further, that securities issued by a municipality relating solely to service rendered inside its limits as they existed on March 29, 1973, shall not be subject to regulation by the commission; provided, further, that service rendered by any electric supplier shall be made pursuant to and consistent with its rates, charges, and service rules and regulations then in effect.

(Ga. L. 1973, p. 200, § 11.)

JUDICIAL DECISIONS

This section not unlawful attempt to regulate or fix charges of municipal utilities.

- Ga. L. 1973, p. 200, § 11 (see O.C.G.A. § 46-3-12) does not attempt to interfere with either the municipality or the electric membership corporation in the establishment of their rate levels. Therefore, it is clear that the section does not constitute an unlawful attempt to regulate or fix the charges of municipal utilities prohibited by Ga. Const. 1976, Art. III, Sec. VIII, Para. I (Ga. Const. 1983, Art. III, Sec. VI, Para I), subject to the exception in Ga. Const. 1976, Art. IX, Sec. VIII, Para. I (Ga. Const. 1983, Art. IX, Sec. VI, Para I, II; Art. XI, Sec. I, Para. IV). City of Calhoun v. North Ga. Elec. Membership Corp., 233 Ga. 759, 213 S.E.2d 596 (1975).

Cited in Albany Oil Mill, Inc. v. Sumter Elec. Membership Corp., 212 Ga. App. 242, 441 S.E.2d 524 (1994).

RESEARCH REFERENCES

Am. Jur. 2d.

- 27A Am. Jur. 2d, Energy and Power Sources, § 35.

C.J.S.

- 29 C.J.S., Electricity, § 3.

ALR.

- Grant of perpetual franchise to public service corporation, 2 A.L.R. 1105.

46-3-13. Enforcement of part by commission.

At any time, upon its own complaint or the complaint of any other electric supplier or any other interested party, the commission shall have the authority and jurisdiction, after notice to all affected electric suppliers and other interested parties, and after a hearing, to enforce the provisions of this part by appropriate orders.

(Ga. L. 1973, p. 200, § 12.)

JUDICIAL DECISIONS

Cited in Greensboro Lumber Co. v. Georgia Power Co., 643 F. Supp. 1345 (N.D. Ga. 1986).

46-3-14. Effect of part on municipal police powers over erection and maintenance of electric wires, poles, and other facilities of electric suppliers in streets, alleys, and public ways.

  1. No provision of this part shall restrict the reasonable exercise of the police power of a municipality over the erection and maintenance of poles, wires, and other facilities of electric suppliers in streets, alleys, and public ways.
  2. No municipality may, by unreasonably withholding or conditioning right of way easements or franchises, defeat, impair, or interfere with the rights and restrictions applying to electric suppliers therein as provided for in this part. Rather, any secondary supplier within a municipality existing on March 29, 1973, and any electric supplier other than the primary supplier within any geographic area thereafter annexed to such municipality, shall pay the municipality for street franchise rights a sum of money calculated and payable in the same manner and on the same basis as is utilized with respect to the payment, if any, by the primary supplier (other than the municipality itself) for the same or substantially identical rights. In addition, any electric supplier within a wholly new municipality at the time such municipality comes into existence or thereafter which does not serve a majority or plurality of the retail electric meters inside the limits of such municipality shall pay such municipality for street franchise rights a sum of money calculated and payable in the same manner and on the same basis as is utilized with respect to the payment, if any, by the electric supplier (other than the municipality itself) which serves a majority or plurality, whichever is the case, of the retail electric meters inside the limits of such municipality for the same or substantially identical rights.
  3. No provision of this part shall abolish the power of any incorporated municipality pursuant to paragraph (7) of Code Section 36-34-2 or any other provision of law to grant street franchises; nor shall any provision of this part abolish the requirement, to the extent existing on March 29, 1973, that any electric supplier must obtain such a franchise in order to use and occupy streets of an incorporated municipality for the purpose of rendering utility services.

(Ga. L. 1973, p. 200, § 15.)

JUDICIAL DECISIONS

Authority of city to charge franchise fee.

- Nothing in the first sentence of O.C.G.A. § 46-3-14(b) purports to prohibit a city from conditioning its grant of a street franchise to an electric company upon the payment of a reasonable franchise fee, and the second sentence is a statutory preservation of the right of a "municipality" under O.C.G.A. § 36-34-2(7) to charge "any secondary supplier" a franchise fee, even where the municipality itself is also the primary supplier. City of Calhoun v. North Ga. Elec. Membership Corp., 264 Ga. 205, 443 S.E.2d 469 (1994).

A municipality may grant a franchise to an electric membership corporation. It is also authorized to assess franchise fees against the corporation. Athens-Clarke County v. Walton Elec. Membership Corp., 265 Ga. 229, 454 S.E.2d 510 (1995).

Cited in City of LaGrange v. Troup County Elec. Membership Corp., 200 Ga. App. 418, 408 S.E.2d 708 (1991).

RESEARCH REFERENCES

Am. Jur. 2d.

- 27A Am. Jur. 2d, Energy and Power Sources, § 20.

C.J.S.

- 29 C.J.S., Electricity, § 15.

ALR.

- Grant of perpetual franchise to public service corporation, 2 A.L.R. 1105.

46-3-15. Effect of part on charges of public utilities owned or operated by counties or municipalities.

No provision of this part, and no application thereof, shall be construed in any way to regulate or fix charges of county owned or operated or municipality owned or operated public utilities, as prohibited by Article III, Section VI, Paragraph V(d) of the Constitution of Georgia.

(Ga. L. 1973, p. 200, § 15A; Ga. L. 1983, p. 3, § 62; Ga. L. 1984, p. 22, § 46.)

JUDICIAL DECISIONS

Legislature only prohibited from regulating or fixing charges.

- The proviso to Ga. Const. 1976, Art. III, Sec. VIII, Para. IX (Ga. Const. 1983, Art. III, Sec. VI, Para. V), was intended only to prohibit the General Assembly from regulating or fixing the charges of municipally owned or operated electric systems and does not deal with every aspect of the General Assembly's broad, inherent powers over both public utilities and municipal corporations. City of Calhoun v. North Ga. Elec. Membership Corp., 233 Ga. 759, 213 S.E.2d 596 (1975).

PART 2 H IGH-VOLTAGE SAFETY

JUDICIAL DECISIONS

Constitutionality.

- The High-Voltage Safety Act, O.C.G.A. § 46-3-30 et seq., does not deprive injured persons of due process by abolishing a common law claim, since the legislature has the authority to abolish such claims prior to their accrual; nor is the Act unconstitutionally vague. Santana v. Georgia Power Co., 269 Ga. 127, 498 S.E.2d 521 (1998).

This part directed towards businesses.

- The persons and activities toward which this part is directed are not those of the private individual who encounters the lines, but those of businesses, whether giant corporations or one man concerns, whose usual activities would foreseeably bring their employees within close proximity to high voltage lines. The duty is placed on them to notify a power company of the proposed activity and on the power company to take any necessary technical measures for assuring the safety of the workmen. Savannah Elec. & Power Co. v. Holton, 127 Ga. App. 447, 193 S.E.2d 866 (1972).

Intent of this part is to protect workmen by regulating the conduct of employers and owners of power lines. Savannah Elec. & Power Co. v. Holton, 127 Ga. App. 447, 193 S.E.2d 866 (1972).

Persons intended to be covered.

- Where plaintiff was installing cable television wire on defendant's property and made contact with a live electrical wire, the defendant was not a "person responsible for the work to be done" and was not, therefore, liable pursuant to O.C.G.A. Pt. 2, Ch. 3, T. 46. Johnson v. Richardson, 202 Ga. App. 470, 414 S.E.2d 698 (1992).

Activities intended to be covered.

- Kinds of activities intended to be covered are not random or casual exposures to lines. Savannah Elec. & Power Co. v. Holton, 127 Ga. App. 447, 193 S.E.2d 866 (1972).

Workers' compensation exclusive remedy provision.

- O.C.G.A. Pt. 2, Ch. 3, T. 46 is not an exception to the exclusive remedy provision of Workers' Compensation Act. Pappas v. Hill-Staton Eng'rs, Inc., 183 Ga. App. 258, 358 S.E.2d 625, cert. denied, 183 Ga. App. 906, 358 S.E.2d 625 (1987); City of Dalton v. Gene Rogers Constr. Co., 223 Ga. App. 819, 479 S.E.2d 171 (1996); Flint Elec. Membership Corp. v. Ed Smith Constr. Co., 229 Ga. App. 838, 495 S.E.2d 136 (1998).

RESEARCH REFERENCES

ALR.

- Liability of electric light or power company for injuries to employee of patron, 9 A.L.R. 174.

Duty to guard against danger to children by electric wires, 17 A.L.R. 833; 41 A.L.R. 1337; 49 A.L.R. 1053; 100 A.L.R. 621.

Liability of one maintaining electric wire over or near highway for injury due to breaking of wire by fall of tree or limb, 19 A.L.R. 801.

Induction, conduction, and electrolysis, 23 A.L.R. 1257; 33 A.L.R. 380; 56 A.L.R. 421.

Duty and liability in respect of sagging of electric wire maintained over highway, 84 A.L.R. 690.

Liability of electric light or power company for injury or damage due to condition of service lines or electrical appliance maintained by one to whom it furnishes electric current, 134 A.L.R. 507.

Correlative rights of dominant and servient owners in right of way for electric line, 6 A.L.R.2d 205.

Liability for injury of child on electric transmission tower or pole, 6 A.L.R.2d 754.

Liability for injury or death of adult from electric wires passing through or near trees, 40 A.L.R.2d 1299.

Liability of electric power, telephone, or telegraph company for personal injury or death from fall of pole, 97 A.L.R.2d 664.

Status of injured adult as trespasser on land not owned by electricity supplier, as affecting its liability for injuries inflicted upon him by electric wires it maintains thereon, 30 A.L.R.3d 777.

Liability of power company for injury or death resulting from contact of radio or television antenna with electrical line, 82 A.L.R.3d 113.

Applicability of rule of strict liability to injury from electrical current escaping from powerline, 82 A.L.R.3d 218.

Liability for injury to or death of child from electric wire encountered while climbing tree, 91 A.L.R.3d 616.

Products liability: electricity, 60 A.L.R.4th 732.

Liability of electric company to one other than employee for injury or death arising from commencement or resumption of service, 46 A.L.R.5th 423.

46-3-30. Short title.

This part shall be known and may be cited as the "High-voltage Safety Act."

(Code 1981, §46-3-30, enacted by Ga. L. 1992, p. 2141, § 1.)

Editor's notes.

- Ga. L. 1992, p. 2141, § 1, redesignated former Code Section 46-3-30 as present Code Section 46-3-32.

Law reviews.

- For annual survey article discussing workers' compensation law, see 51 Mercer L. Rev. 549 (1999). For survey article on construction law for the period from June 1, 2002 through May 31, 2003, see 55 Mercer L. Rev. 85 (2003).

JUDICIAL DECISIONS

Constitutionality.

- The High-Voltage Safety Act, O.C.G.A. § 46-3-30, does not deprive injured persons of due process by abolishing a common law claim, since the legislature has the authority to abolish such claims prior to their accrual; nor is the Act unconstitutionally vague. Santana v. Georgia Power Co., 269 Ga. 127, 498 S.E.2d 521 (1998).

Requirement of notice is clear.

- The language of the Georgia High-voltage Safety Act, O.C.G.A. § 46-3-30 et seq., is clear and unambiguous in its requirement that notice be given before work is commenced in proximity to high-voltage lines, and in its provision that lack of such notice insulates an owner of the lines from liability. Jackson Elec. Mbrshp. Corp. v. Smith, 276 Ga. 208, 576 S.E.2d 878 (2003).

Cited in Brown v. Southern Bell Tel. & Tel. Co., 209 Ga. App. 99, 432 S.E.2d 675 (1993).

46-3-31. Purpose of part.

The purpose of this part is to prevent injury to persons and property and interruptions of utility service resulting from accidental or inadvertent contact with high-voltage electric lines by providing that no work shall be done in the vicinity of such lines unless and until the owner or operator thereof has been notified of such work and has taken one of the safety measures prescribed in this part.

(Code 1981, §46-3-31, enacted by Ga. L. 1992, p. 2141, § 1.)

Editor's notes.

- Ga. L. 1992, p. 2141, § 1, effective July 1, 1992, repealed former Code Section 46-3-31, which related to the protection of employees from accidental contact with high voltage lines. The former Code section was based on Ga. L. 1960, p. 181, § 2; and Ga. L. 1981, Ex. Sess., p. 8, Code Enactment Act.

JUDICIAL DECISIONS

Power company not liable if notice not given.

- The 1992 "High-voltage Safety Act", O.C.G.A. § 46-3-30 et seq., immunizes a power company's negligence of omission and commission in placement and maintenance of such lines when there has been no notice given; thus, liability was barred because there had been no notice. Williams v. Mitchell County Elec. Mbrshp. Corp., 255 Ga. App. 668, 566 S.E.2d 356 (2002), aff'd, 276 Ga. 759, 582 S.E.2d 107 (2003).

Georgia High-voltage Safety Act, O.C.G.A. § 46-3-30 et seq., barred recovery in a wrongful death action as the decedent failed to give the statutory notice that decedent would be working within 10 feet of a sagging power line with which decedent came into contact and which electrocuted the decedent. Williams v. Mitchell County Elec. Mbrshp. Corp., 276 Ga. 759, 582 S.E.2d 107 (2003).

Cited in Glass Sys. v. Ga. Power Co., 288 Ga. 85, 703 S.E.2d 605 (2010).

46-3-32. Definitions.

As used in this part, the term:

  1. "High-voltage lines" means an electric line or lines installed above ground level having a voltage in excess of 750 volts between conductors or from any conductor to ground.
  2. "Notice" means actual notification given to the center.
  3. "Person responsible for the work" means the person actually doing the work as well as any person, firm, or corporation who employs and carries on his payroll any person actually doing the work or who employs a subcontractor who actually does the work; provided, however, that this term does not mean one who is exempted under Code Sections 46-3-37 and 46-3-38.
  4. "Utilities protection center" or "center" means the corporation or other organization formed by utilities which receives advance notifications regarding work and distributes such notifications to its utility members.
  5. "Utility" means any person operating or maintaining high-voltage lines within the state.
  6. "Work" means the physical act of performing or preparing to perform any activity under, over, by, or near high-voltage lines, including, but not limited to, the operation, erection, handling, storage, or transportation of any tools, machinery, ladders, antennas, equipment, supplies, materials, or apparatus or the moving of any house or other structure whenever such activity is done by a person or entity in pursuit of his trade or business.

(Ga. L. 1960, p. 181, § 1; Ga. L. 1974, p. 153, § 1; Code 1981, §46-3-30; Code 1981, §46-3-32, as redesignated by Ga. L. 1992, p. 2141, § 1.)

Editor's notes.

- Ga. L. 1992, p. 2141, § 1, effective July 1, 1992, repealed former Code Section 46-3-32, which concerned clearance requirements for the operation, handling, etc., of tools, machinery, etc., and the moving of houses, buildings, or other structures over, under, by, or near high-voltage lines and the safeguarding against accidental contact. The former Code section was based on Ga. L. 1960, p. 181, § 3; Ga. L. 1981, Ex. Sess., p. 8, Code Enactment Act; and Ga. L. 1984, p. 22, § 46; and Ga. L. 1992, p. 6, § 46.

JUDICIAL DECISIONS

"Person responsible".

- An employee as well as the employer may in some circumstances be a "person responsible" for notifying the line owner or operator under O.C.G.A. §§ 46-3-32 and46-3-33. Malvarez v. Georgia Power Co., 250 Ga. 568, 300 S.E.2d 145 (1983), superceded by statute as stated in Williams v. Mitchell County Elec. Mbrshp. Corp., 279 Ga. 759, 582 S.E.2d 107 (2003). But see Preston v. Georgia Power Co., 227 Ga. App. 449, 489 S.E.2d 573 (1997), cert. denied, 525 U.S. 869, 119 S. Ct. 163, 142 L. Ed. 2d 134 (1998); Santana v. Georgia Power Co., 269 Ga. 127, 498 S.E.2d 521 (1998).

The phrase "person responsible for the work to be done" is defined in paragraph (2) (now paragraph (3)) of O.C.G.A. § 46-3-32 and, when read in conjunction with O.C.G.A. § 46-3-33(a), requires the person or persons immediately responsible for the operation of machinery within eight feet of a high-voltage line to give notice. Green v. Moreland, 200 Ga. App. 167, 407 S.E.2d 119 (1991).

"Work".

- Farmer who was electrocuted by a sagging high-voltage power line was engaged in work within the meaning of O.C.G.A. § 46-3-32(6) as the individual was a farmer, using the farmer's own equipment to harvest a neighbor's field of cotton, and thus was obviously engaged in the farmer's customary trade; accordingly, the farmer was required under provisions of the Georgia High-voltage Safety Act, O.C.G.A. § 46-3-30 et seq., to give notice to the owner of high-voltage power lines before coming within 10 feet of the power lines. Williams v. Mitchell County Elec. Mbrshp. Corp., 276 Ga. 759, 582 S.E.2d 107 (2003).

Cited in Parsons, Brinckerhoff, Quade & Douglas, Inc. v. Johnson, 161 Ga. App. 634, 288 S.E.2d 320 (1982); Colquitt Elec. Membership Corp. v. Cvengros, 165 Ga. App. 649, 302 S.E.2d 407 (1983); Allen v. King Plow Co., 227 Ga. App. 795, 490 S.E.2d 457 (1997).

RESEARCH REFERENCES

C.J.S.

- 29 C.J.S., Electricity, § 1.

46-3-33. Required conditions for commencing work within ten feet of high-voltage line.

No person, firm, or corporation shall commence any work as defined in paragraph (6) of Code Section 46-3-32 if at any time any person or any item specified in paragraph (6) of Code Section 46-3-32 may be brought within ten feet of any high-voltage line unless and until:

  1. The person responsible for the work has given the notice required by Code Section 46-3-34; and
  2. The owner or operator of such high-voltage line has effectively guarded against danger from accidental contact by either deenergizing and grounding the line, relocating it, or installing protective covering or mechanical barriers, whichever safeguard is deemed by the owner or operator to be feasible under the circumstances.

(Code 1981, §46-3-33, enacted by Ga. L. 1992, p. 2141, § 1.)

Editor's notes.

- Ga. L. 1992, p. 2141, § 1, redesignated former Code Section 46-3-33 as present Code Section 46-3-34.

In light of the similarity of the provisions, decisions under former Code Section 46-33-32 are included in the annotations for this Code section.

Law reviews.

- For survey article on construction law, see 59 Mercer L. Rev. 55 (2007). For survey article on local government law, see 60 Mercer L. Rev. 263 (2008).

JUDICIAL DECISIONS

Recovery for injuries suffered during prohibited act.

- Violation of former § 46-3-32 does not necessarily bar recovery for injuries suffered while engaged in a prohibited act, in view of the provision of former § 46-3-39 that "nothing in this Act shall be construed or applied as limiting or reducing the duty or degree of care now applicable to owners or operators of such high-voltage lines with respect to damage or loss to person or property." Reighard v. Georgia Power Co., 119 Ga. App. 640, 168 S.E.2d 639 (1969), disapproved on other grounds, Carden v. Georgia Power Co., 231 Ga. 456, 202 S.E.2d 55 (1973).

Discretion as to protective measures.

- O.C.G.A. § 46-3-33(2) clearly gives an owner or operator of high-voltage electric lines discretion in deciding what protective measures to take. Golden v. Vickery, 285 Ga. App. 216, 645 S.E.2d 695 (2007), cert. denied, No. S07C1359, 2007 Ga. LEXIS 664 (Ga. 2007).

Electric membership corporation could not be absolved of liability even in the absence of statutory notice, where it had not been shown as a matter of law that its lines were properly located and maintained at the time of a fatal accident. Three Notch Elec. Membership Corp. v. Bush, 190 Ga. App. 858, 380 S.E.2d 720, cert. denied, 190 Ga. App. 897, 380 S.E.2d 720 (1989).

Businesses and activities covered by Act.

- The High-voltage Safety Act, O.C.G.A. § 46-3-30 et seq., is directed only toward businesses whose usual activities would foreseeably bring their employees within close proximity to voltage lines, and the kinds of activities intended to be covered are not random or casual exposures to lines. Southern Orchard Supply v. Boyer, 221 Ga. App. 626, 472 S.E.2d 157 (1996).

A farm laborer injured while replacing irrigation pipe when the laborer attempted to raise a pipe near a voltage line, without looking up at the line, rather than move to a different, safer location, could not hold the employer liable under the High-voltage Safety Act, O.C.G.A. § 46-3-30 et seq. Southern Orchard Supply v. Boyer, 221 Ga. App. 626, 472 S.E.2d 157 (1996).

An employer was not strictly liable under the High-voltage Safety Act, O.C.G.A. § 46-3-30, for injuries to employees incurred while they were working within the danger area of high voltage wires. Callaway v. Crown Crafts, Inc., 223 Ga. App. 297, 477 S.E.2d 435 (1996).

Lack of notice of risk to power company insignificant where lines negligently installed or maintained.

- One whose injury is caused by negligent installation or maintenance of high-voltage lines, even where such injury occurs while engaged in acts enumerated in former Code section46-3-32 within eight (now ten) feet of the lines, is not barred by failure to give notice. Malvarez v. Georgia Power Co., 250 Ga. 568, 300 S.E.2d 145 (1983), superceded by statute as stated in Williams v. Mitchell County Elec. Mbrshp. Corp., 279 Ga. 759, 582 S.E.2d 107 (2003); Habersham Elec. Membership Corp. v. Dalton, 170 Ga. App. 483, 317 S.E.2d 312 (1984).

Although an employee as well as his employer may in some circumstances be a "person responsible" for notifying the line owner or operator under §§ 46-3-32,46-3-34 and former Code section46-3-32, lack of such notification is a bar to recovery only where the lines are "otherwise properly located and maintained." Malvarez v. Georgia Power Co., 250 Ga. 568, 300 S.E.2d 145 (1983), superceded by statute as stated in Williams v. Mitchell County Elec. Mbrshp. Corp., 279 Ga. 759, 582 S.E.2d 107 (2003).

Notice requirement.

- Georgia High-voltage Safety Act, O.C.G.A. § 46-3-30 et seq., barred recovery in a wrongful death action as the decedent failed to give the statutory notice that decedent would be working within 10 feet of a sagging power line with which decedent came into contact and which electrocuted the decedent. Williams v. Mitchell County Elec. Mbrshp. Corp., 276 Ga. 759, 582 S.E.2d 107 (2003).

Failure to give notice allowed power company to maintain indemnity action against employer.

- Purpose of O.C.G.A. § 46-3-40(b), allowing a power company to pursue an indemnity action against an employer whose workers were injured by contact with high voltage power lines because the workers failed to notify the power company of the work, was to prevent injury, a legitimate legislative purpose, and the purpose was served because the threat of an indemnity action would motivate employers to follow the notice requirement and thereby prevent accidents. Therefore, the statute did not violate substantive due process. Glass Sys. v. Ga. Power Co., 288 Ga. 85, 703 S.E.2d 605 (2010).

Cited in King v. King, 124 Ga. App. 814, 186 S.E.2d 432 (1971); Savannah Elec. & Power Co. v. Holton, 127 Ga. App. 447, 193 S.E.2d 866 (1972); Georgia Power Co. v. Carden, 128 Ga. App. 347, 196 S.E.2d 477 (1973); Carden v. Georgia Power Co., 231 Ga. 456, 202 S.E.2d 55 (1973); Parsons, Brinckerhoff, Quade & Douglas, Inc. v. Johnson, 161 Ga. App. 634, 288 S.E.2d 320 (1982); Brown v. City of Fitzgerald, 177 Ga. App. 859, 341 S.E.2d 476 (1986); Santana v. First Guaranty Mgt. Corp., 223 Ga. App. 472, 477 S.E.2d 857 (1996); Preston v. Georgia Power Co., 227 Ga. App. 449, 489 S.E.2d 573 (1997).

RESEARCH REFERENCES

Am. Jur. 2d.

- 27A Am. Jur. 2d, Energy and Power Sources, § 167.

C.J.S.

- 29 C.J.S., Electricity, § 41.

ALR.

- Duty to guard against danger to children by electric wires, 41 A.L.R. 1337; 49 A.L.R. 1053; 100 A.L.R. 621.

Liability of one maintaining high-tension electric wires over private property of another for injuries thereby inflicted, 46 A.L.R. 1021.

Induction, conduction and electrolysis, 56 A.L.R. 421.

Restoring electric current after automatic breaking of current as negligence, 57 A.L.R. 1065.

Liability of electric power or telephone company for injury or damage by lightning transmitted on wires, 25 A.L.R.2d 722.

46-3-34. Utilities protection center; funding of activities; notice of work; delay; responsibility for completing safety requirements.

  1. All utilities shall organize, participate as members in, and cooperate with the utilities protection center.In lieu of organizing a new center, if the organization defined as the utilities protection center in paragraph (21) of Code Section 25-9-2 undertakes to serve as the utilities protection center referred to in this part, it may do so and no duplicative center shall thereafter be established.The activities of the center relating to high-voltage lines shall be funded by all utilities.
  2. Where work is to be done, the person responsible for such work shall give notice to the utilities protection center during its regular business hours at least 72 hours, excluding weekends and holidays, prior to commencing such work and such notice shall:
    1. Describe the tract or parcel of land upon which the work to be done is to take place with sufficient particularity to enable the owner or operator of the high-voltage lines to ascertain the precise tract or parcel of land involved;
    2. State the name, address, and telephone number of the person who will be in charge of the work;
    3. Describe the type of work to be engaged in by the person; and
    4. Designate the date upon which the work will commence and will be completed.
  3. After receipt of the notice required by subsection (b) of this Code section, the owner or operator of the high-voltage line shall contact the person whose name is given as required by paragraph (2) of subsection (b) of this Code section within a reasonable time, so that appropriate satisfactory arrangements can be made for the completion of the safety precautions required by Code Section 46-3-33, including coordination of work schedules and payment of costs required to effect such safety precautions.Upon completion of such arrangements, the owner or operator of such high-voltage line shall effect such safety precautions within a reasonable time.
  4. If, after such arrangements are made, a delay in commencing the work is encountered, then the person responsible for the work shall be required to give a new notice as specified in subsection (b) of this Code section.
  5. The person responsible for the work shall be responsible to assure that the safety requirements of Code Section 46-3-33 are completed prior to the commencement of any such work.

(Ga. L. 1960, p. 181, § 5; Code 1981, §46-3-33; Code 1981, §46-3-34, as redesignated by Ga. L. 1992, p. 2141, § 1; Ga. L. 2001, p. 4, § 46.)

Editor's notes.

- Ga. L. 1992, p. 2141, § 1, redesignated former Code Section 46-3-34 as present Code Section 46-3-35.

JUDICIAL DECISIONS

Meaning of section.

- Ga. L. 1960, p. 181, § 5 (see O.C.G.A. § 46-3-34) means that for a construction work risk to be brought within the duty owed by the owner and maintainer of the high-voltage lines, then the notice required by that section must have been given by the responsible party. Carden v. Georgia Power Co., 231 Ga. 406, 202 S.E.2d 55 (1973).

Construction.

- There is no doubt engendered by O.C.G.A. § 46-3-34 about the necessity of giving notice prior to working in proximity to high-voltage power lines or about the effect of failing to give notice. Thus, persons of common intelligence need not guess at the meaning of that section, and, once in the possession of the necessary facts, should not differ as to its application. Santana v. Georgia Power Co., 269 Ga. 127, 498 S.E.2d 521 (1998).

Duty where notice of work risk given.

- Ga. L. 1960, p. 181, § 5 (see O.C.G.A. § 46-3-34) places duty upon owner and maintainer of high-voltage lines where notice is given of a construction work risk although such owner would otherwise not be liable. Carden v. Georgia Power Co., 231 Ga. 406, 202 S.E.2d 55 (1973).

The phrase "person responsible for the work to be done" is defined in O.C.G.A. § 46-3-30(2) and, when read in conjunction with subsection (a) of O.C.G.A. § 46-3-34, requires the person or persons immediately responsible for the operation of machinery within eight feet of a high-voltage line to give notice. Green v. Moreland, 200 Ga. App. 167, 407 S.E.2d 119 (1991).

Electric membership corporation could not be absolved of liability even in the absence of statutory notice, where it had not been shown as a matter of law that its lines were properly located and maintained at the time of a fatal accident. Three Notch Elec. Membership Corp. v. Bush, 190 Ga. App. 858, 380 S.E.2d 720, cert. denied, 190 Ga. App. 897, 380 S.E.2d 720 (1989).

Activities of employee not constituting contributory negligence.

- A mere employee of a construction company, not having notification responsibility under Ga. L. 1960, p. 181, § 5 (see O.C.G.A. § 46-3-34), cannot be contributorily negligent as a matter of law just because the employee performed activities within the prohibited eight feet from high-voltage lines. Carden v. Georgia Power Co., 231 Ga. 406, 202 S.E.2d 55 (1973).

Duty to give notice.

- City could not be held liable under the High-voltage Safety Act, O.C.G.A. § 46-3-30 et seq., for injuries to workers where the notice required by O.C.G.A. § 46-3-34 was not given. Callaway v. Crown Crafts, Inc., 223 Ga. App. 297, 477 S.E.2d 435 (1996).

Power company not liable if notice not given.

- Defendant power company could not be held responsible for injuries that occurred during painting of apartment building, where neither the power company nor the utilities protection center was notified of the work as required by statute. Santana v. Georgia Power Co., 269 Ga. 127, 498 S.E.2d 521 (1998).

Assumption of the risk did not apply as a defense to a farm worker's death by electrocution since there was no evidence to show that the farm worker appreciated the danger of the sagging power lines; despite the fact that the power company failed to maintain or inspect its power lines, it was immune from liability since it had no notice that the deceased was working within 10 feet of its lines. Williams v. Mitchell County Elec. Mbrshp. Corp., 255 Ga. App. 668, 566 S.E.2d 356 (2002), aff'd, 276 Ga. 759, 582 S.E.2d 107 (2003).

In a suit by employees of a subcontractor who were electrocuted while working on a construction project, the trial court properly granted summary judgment to a power company based on lack of notice required by O.C.G.A. § 46-3-34. The notice given by the general contractor had nothing to do with the work being performed by the subcontractor. Dalton v. 933 Peachtree, L.P., 291 Ga. App. 123, 661 S.E.2d 156 (2008).

Lack of notice of risk to power company insignificant where lines are not properly located or maintained.

- Although an employee as well as his employer may in some circumstances be a "person responsible" for notifying the line owner or operator under §§ 46-3-30,46-3-32 and this section, lack of such notification is a bar to recovery only where the lines are "otherwise properly located and maintained." Malvarez v. Georgia Power Co., 250 Ga. 568, 300 S.E.2d 145 (1983), superceded by statute as stated in Williams v. Mitchell County Elec. Mbrshp. Corp., 279 Ga. 759, 582 S.E.2d 107 (2003).

One whose injury is caused by negligent installation or maintenance of high-voltage lines, even where such injury occurs while engaged in acts enumerated in § 46-3-32 within eight feet of the lines, is not barred by failure to give notice. Malvarez v. Georgia Power Co., 250 Ga. 568, 300 S.E.2d 145 (1983), superceded by statute as stated in Williams v. Mitchell County Elec. Mbrshp. Corp., 279 Ga. 759, 582 S.E.2d 107 (2003); Habersham Elec. Membership Corp. v. Dalton, 170 Ga. App. 483, 317 S.E.2d 312 (1984).

Where a victim was electrocuted from overhead power lines, and notwithstanding the existence of evidence that the utility companies may not have forwarded calls for protection, because of the general contractor's cancellation of overhead protection, it was incumbent upon the general contractor to provide the utility companies with the 72-hours notice as required by O.C.G.A. § 46-3-34(d); thus, the utility companies were not liable. Jackson Elec. Mbrshp. Corp. v. Smith, 276 Ga. 208, 576 S.E.2d 878 (2003).

Georgia High-voltage Safety Act, O.C.G.A. § 46-3-30 et seq., barred recovery in a wrongful death action as the decedent failed to give the statutory notice that decedent would be working within 10 feet of a sagging power line with which decedent came into contact and which electrocuted the decedent. Williams v. Mitchell County Elec. Mbrshp. Corp., 276 Ga. 759, 582 S.E.2d 107 (2003).

New notice required if project delayed.

- Under the plain language of O.C.G.A. § 46-3-34(d), which controls notice to the Utilities Protection Center, Inc. (UPC), if there is a delay in the work, new notice to the UPC is required prior to initiating a project. Jackson Elec. Mbrshp. Corp. v. Smith, 276 Ga. 208, 576 S.E.2d 878 (2003).

Cited in Georgia Power Co. v. Carden, 128 Ga. App. 347, 196 S.E.2d 477 (1973); Parsons, Brinckerhoff, Quade & Douglas, Inc. v. Johnson, 161 Ga. App. 634, 288 S.E.2d 320 (1982); Brown v. City of Fitzgerald, 177 Ga. App. 859, 341 S.E.2d 476 (1986); Butler v. Georgia Power Co., 183 Ga. App. 144, 358 S.E.2d 266 (1987); Lynch v. Georgia Power Co., 185 Ga. App. 256, 363 S.E.2d 777 (1987); Santana v. First Guaranty Mgt. Corp., 223 Ga. App. 472, 477 S.E.2d 857 (1996); Preston v. Georgia Power Co., 227 Ga. App. 449, 489 S.E.2d 573 (1997).

RESEARCH REFERENCES

ALR.

- Duty to guard against danger to children by electric wires, 41 A.L.R. 1337; 49 A.L.R. 1053; 100 A.L.R. 621.

Duty of public utility to notify patron in advance of temporary suspension of service, 52 A.L.R. 1078.

Liability of electric light or power company for injury or damage due to condition of service lines or electrical appliance maintained by one to whom it furnishes electric current, 134 A.L.R. 507.

Liability of electric power or telephone company for injury or damage by lightning transmitted on wires, 25 A.L.R.2d 722.

46-3-35. Allocation of expense of precautionary measures taken pursuant to public highway construction.

Where, during any public highway construction, any temporary precautionary measure is required by this part to guard against accidental contact with high-voltage lines that are located upon public highways or roads which are owned by this state or a county thereof and which are located outside the corporate limits of any municipality, the expense of such temporary precautionary measure shall be borne by the owner or operator of such lines, provided that such construction is undertaken pursuant to a permit issued by the state or county, for which permit neither the state nor the county received consideration.The person responsible for the work nevertheless shall not commence any work until he has given notice as required by Code Section 46-3-34 and the safety precautions required by Code Section 46-3-33 have been effected.

(Ga. L. 1960, p. 181, § 5A; Code 1981, §46-3-34; Code 1981, §46-3-35, as redesignated by Ga. L. 1992, p. 2141, § 1.)

Editor's notes.

- Ga. L. 1992, p. 2141, § 1, redesignated former Code Section 46-3-35 as present Code Section 46-3-36 [repealed].

46-3-36. Administration and enforcement of part by Commissioner of Labor.

Reserved. Repealed by Ga. L. 1994, p. 1673, § 1, effective April 19, 1994.

Editor's notes.

- This Code section was based on Ga. L. 1960, p. 181, § 6; Code 1981, § 46-3-35; Code 1981, § 46-3-36, as redesignated by Ga. L. 1992, p. 2141, § 1.

46-3-37. Applicability of part to railway systems, electrical engineering system or other entities.

  1. This part shall not be construed as applying to the construction, reconstruction, operation, and maintenance of overhead electrical conductors and their supporting structures and associated equipment by authorized and qualified electrical workers. Specifically, this part shall not be construed as applying to the construction, reconstruction, operation, and maintenance of overhead electrical circuits or conductors and their supporting structures and associated equipment for rail transportation systems or for electrical generating, transmission, and distribution systems or for communication systems, when such work is performed by authorized and qualified employees of any person engaged in such work.
  2. When applied to railway systems, the exception provided in this Code section shall be construed as permitting operation of standard rail equipment which is normally used in the transportation of freight or passengers, or both, or in the operation of relief trains or other equipment in emergencies, or in the maintenance of way service, at a distance of less than ten feet from any high-voltage conductor of such railway system; provided, however, that normal repair or construction operations at a distance of less than ten feet from any high-voltage conductor by other than properly qualified and authorized persons or employees under the direct supervision of an authorized person who is familiar with the hazards involved is prohibited, unless there has been compliance with the safety provisions of Code Section 46-3-33.
  3. Any telephone company or other entity which has a joint use contract with an electric company is specifically exempted from this part.

(Ga. L. 1960, p. 181, § 8; Code 1981, §46-3-36; Code 1981, §46-3-37, as redesignated by Ga. L. 1992, p. 2141, § 1.)

Editor's notes.

- Ga. L. 1992, p. 2141, § 1, redesignated former Code Section 46-3-37 as present Code Section 46-3-38.

RESEARCH REFERENCES

ALR.

- Liability of electric power or telephone company for injury or damage by lightning transmitted on wires, 25 A.L.R.2d 722.

46-3-38. Applicability of part to moving or transportation of houses or buildings.

In addition to the exceptions set forth in Code Section 46-3-37, this part shall not be construed as applying to and shall not apply to the moving or transportation of houses or buildings or parts thereof when such moving is under the jurisdiction of, and is undertaken pursuant to authority granted by, the Department of Public Safety.

(Ga. L. 1960, p. 181, § 4; Code 1981, §46-3-37; Code 1981, §46-3-38, as redesignated by Ga. L. 1992, p. 2141, § 1; Ga. L. 2012, p. 580, § 15/HB 865.)

The 2012 amendment, effective July 1, 2012, substituted "Department of Public Safety" for "Georgia Public Service Commission" at the end of this Code section.

Editor's notes.

- Ga. L. 1992, p. 2141, § 1, redesignated former Code Section 46-3-38 as present Code Section 46-3-39.

46-3-39. Restriction on liability of owners and operators of high-voltage lines; effect of part on duty or degree of care.

  1. The owner or operator of high-voltage lines shall not be liable for damage or loss to person or property resulting from work within ten feet of high-voltage lines unless notice has been given as required by Code Section 46-3-34 and the owner or operator of the high-voltage line has failed to comply with the provisions of Code Section 46-3-33.
  2. Except as provided in subsection (a) of this Code section, nothing in this part shall be construed or applied so as to limit or reduce the duty or degree of care applicable to owners or operators of high-voltage lines with respect to damage or loss to person or property.

(Ga. L. 1960, p. 181, § 10; Code 1981, §46-3-38; Code 1981, §46-3-39, as redesignated by Ga. L. 1992, p. 2141, § 1.)

Editor's notes.

- Ga. L. 1992, p. 2141, § 1, redesignated former Code Section 46-3-39 as present Code Section 46-3-40.

JUDICIAL DECISIONS

This chapter added another theory of liability.

- Ga. L. 1960, p. 181, § 10 (see O.C.G.A. § 46-3-39) means that the chapter has not subtracted a theory of liability but added another, i.e., regardless of any concurring factual negligence on the part of a power company, an employer would be negligent per se vis-a-vis an employer if it violated a provision of this chapter. Savannah Elec. & Power Co. v. Holton, 127 Ga. App. 447, 193 S.E.2d 866 (1972).

Maintenance of wires at minimum height not actionable negligence.

- The mere maintenance, without more, of high tension wires at a minimum height of 24 feet four inches above a traveled roadway is not actionable negligence. Carden v. Georgia Power Co., 231 Ga. 406, 202 S.E.2d 55 (1973).

Companies protected by principle of nonliability for utility pole placement.

- Power companies as well as telephone companies are protected by the principle of nonliability for utility pole placement in O.C.G.A. § 46-5-1, where such pole is located with approval of local authorities and does not interfere with normal highway use. Georgia Power Co. v. Collum, 176 Ga. App. 61, 334 S.E.2d 922 (1985).

Power company not liable.

- Power company was protected from an action arising from injuries to an employee who came in contact with a power line, where the employer was aware of the high voltage carried in the line and neither the employer nor employee gave appropriate notice to the company. Preston v. Georgia Power Co., 227 Ga. App. 449, 489 S.E.2d 573 (1997), cert. denied, 525 U.S. 869, 119 S. Ct. 163, 142 L. Ed. 2d 134 (1998).

Power company not liable if notice not given.

- Defendant power company could not be held responsible for injuries that occurred during painting of an apartment building, where neither the power company nor the utilities protection center was notified of the work as required by statute. Santana v. Georgia Power Co., 269 Ga. 127, 498 S.E.2d 521 (1998).

Assumption of risk did not apply as a defense to a farm worker's death by electrocution since there was no evidence to show that the farm worker appreciated the danger of the sagging power lines; despite the fact that the power company failed to maintain or inspect its power lines, it was immune from liability since it had no notice that the deceased was working within 10 feet of its lines. Williams v. Mitchell County Elec. Mbrshp. Corp., 255 Ga. App. 668, 566 S.E.2d 356 (2002), aff'd, 276 Ga. 759, 582 S.E.2d 107 (2003).

Georgia High-voltage Safety Act, O.C.G.A. § 46-3-30 et seq., barred recovery in a wrongful death action as the decedent failed to give the statutory notice that decedent would be working within 10 feet of a sagging power line with which decedent came into contact and which electrocuted the decedent. Williams v. Mitchell County Elec. Mbrshp. Corp., 276 Ga. 759, 582 S.E.2d 107 (2003).

Cited in Reighard v. Georgia Power Co., 119 Ga. App. 640, 168 S.E.2d 639 (1969); Malvarez v. Georgia Power Co., 250 Ga. 568, 300 S.E.2d 145 (1983).

RESEARCH REFERENCES

ALR.

- Duty to guard against danger to children by electric wires, 41 A.L.R. 1337; 49 A.L.R. 1053; 100 A.L.R. 621.

Duty of public utility to notify patron in advance of temporary suspension of service, 52 A.L.R. 1078.

Liability of electric light or power company for injury or damage due to condition of service lines or electrical appliance maintained by one to whom it furnishes electric current, 134 A.L.R. 507.

Liability of electric power or telephone company for injury or damage by lightning transmitted on wires, 25 A.L.R.2d 722.

Liability for injury to or death of child from electric wire encountered while climbing tree, 91 A.L.R.3d 616.

Liability for injury or death resulting when object is manually brought into contact with, or close proximity to, electric line, 33 A.L.R.4th 809.

Liability for injury or death from collision with guy wire, 8 A.L.R.5th 177.

46-3-40. Criminal penalty; strict liability for injury or damage; indemnification; liability for cost of delay.

  1. Any person responsible for the work who violates any of the provisions of this part shall be guilty of a misdemeanor and, upon conviction thereof, shall be liable for a fine of $1,000.00 for a first offense and $3,000.00 for a second or subsequent offense.
  2. Any person responsible for the work who violates the requirements of Code Section 46-3-33 and whose subsequent activities within the vicinity of high-voltage lines result in damage to utility facilities or result in injury or damage to person or property shall be strictly liable for said injury or damage.Any such person shall also indemnify the owner or operator of such high-voltage lines against all claims, if any, for personal injury, including death, property damage, or service interruptions, including costs incurred in defending any such claims resulting from work in violation of Code Section 46-3-33.
  3. In the event the owner or operator of the high-voltage line fails to effect the safeguards required by Code Section 46-3-33 within a reasonable time after notice is given and appropriate arrangements are made pursuant to Code Section 46-3-34, such owner or operator shall be liable for the reasonable costs incurred by any such delay.

(Ga. L. 1960, p. 181, § 7; Code 1981, §46-3-39; Code 1981, §46-3-40, as redesignated by Ga. L. 1992, p. 2141, § 1.)

JUDICIAL DECISIONS

Workers' compensation exclusive remedy provisions.

- The workers' compensation exclusive remedy provisions of O.C.G.A. § 34-9-11(a) bar the express indemnity provisions of the High-voltage Safety Act, O.C.G.A. § 46-3-40(b). Georgia Power Co. v. Franco Remodeling Co., 233 Ga. App. 640, 505 S.E.2d 488 (1998).

The indemnity provision of the High-voltage Safety Act (O.C.G.A. § 46-3-30 et seq.) can be enforced without offending the exclusive remedy provision of the Workers' Compensation Act. Georgia Power Co. v. Franco Remodeling Co., 240 Ga. App. 771, 525 S.E.2d 152 (1999), vacating Georgia Power Co. v. Franco Remodeling Co., 233 Ga. App. 640, 505 S.E.2d 488 (1998).

Indemnity actions pursuant to HVSA.

- The indemnity provision of the High Voltage safety Act (HVSA) may be enforced without offending the exclusive remedy provision of the Workers' Compensation Act by according indemnity actions pursuant to the HVSA the same dignity case law has given contractual indemnity provisions executed by private parties. The HVSA authorizes a power line owner or operator to obtain indemnification from an employer on account of the employer's failure to abide by the safety provisions in the HVSA. Flint Elec. Membership Corp. v. Ed Smith Constr. Co., 270 Ga. 464, 511 S.E.2d 160 (1999).

Where a power line owner established that a subcontractor was a "person responsible for the work" that failed to give notice to the owner or a utilities protection center that work was being performed within 10 feet of the high-voltage line, the subcontractor was liable to the owner on its claim for defense costs. Georgia Power Co. v. Franco Remodeling Co., 240 Ga. App. 771, 525 S.E.2d 152 (1999).

Purpose of O.C.G.A. § 46-3-40(b), allowing a power company to pursue an indemnity action against an employer whose workers were injured by contact with high voltage power lines because the workers failed to notify the power company of the work, was to prevent injury, a legitimate legislative purpose, and the purpose was served because the threat of an indemnity action would motivate employers to follow the notice requirement and thereby prevent accidents. Therefore, the statute did not violate substantive due process. Glass Sys. v. Ga. Power Co., 288 Ga. 85, 703 S.E.2d 605 (2010).

Cited in Savannah Elec. & Power Co. v. Holton, 127 Ga. App. 447, 193 S.E.2d 866 (1972).

PART 3 S ALE OF ELECTRICITY BY FACILITY GENERATING ELECTRICITY, STEAM, OR OTHER FORMS OF ENERGY FOR ITS OWN CONSUMPTION

Law reviews.

- For article surveying recent legislative and judicial developments in zoning, planning and environmental law, see 31 Mercer L. Rev. 89 (1979).

46-3-50. Short title.

This part shall be known and may be cited as "The Georgia Cogeneration and Distributed Generation Act of 2001."

(Ga. L. 1979, p. 389, § 1; Ga. L. 2001, p. 1149, § 1.)

46-3-51. Legislative determinations and declarations.

  1. The legislature finds that it is in the public interest to:
    1. Encourage private investment in renewable energy resources;
    2. Stimulate the economic growth of Georgia; and
    3. Enhance the continued diversification of the energy resources used in Georgia.
  2. The General Assembly further finds and declares that a program to provide distributed generation for eligible cogenerators is a way to encourage private investment in renewable energy resources, stimulate in-state economic growth, enhance the continued diversification of this state's energy resource mix, and reduce interconnection and administrative costs.

(Code 1981, §46-3-51, enacted by Ga. L. 2001, p. 1149, § 1.)

Editor's notes.

- Ga. L. 2001, p. 1149, § 1, redesignated former Code Section 46-3-51 as present Code Section 46-3-52.

OPINIONS OF THE ATTORNEY GENERAL

Retail sales by cogenerators.

- Under current Georgia laws, cogenerators may not make retail sales of electricity in Georgia except to electric suppliers. 1985 Op. Att'y Gen. No. 85-42.

Operator need not own cogeneration facility.

- Since O.C.G.A. § 46-3-52 (now § 46-3-53) uses the term "person," which is defined as "a natural person, corporation, trust, partnership, incorporated or unincorporated association, or any other legal entity," and does not use the term "cogenerator," which is defined as the owner of a cogeneration facility, it does not appear that the act requires the operator of a cogeneration facility to own the facility. 1988 Op. Att'y Gen. No. 88-1.

Third-party ownership and/or financing is permissible for cogeneration facilities so long as the operator of the facility uses all of the electrical energy, steam, or other form of useful energy produced at the facility or sells the excess electric energy produced in accordance with O.C.G.A. § 46-3-53 (see subsection (b)). 1988 Op. Att'y Gen. 88-1.

46-3-52. Jurisdiction of commission over cogeneration facility the energy from which is used solely by operator.

As used in this part, the term:

  1. "Bidirectional metering" means measuring the amount of electricity supplied by an electric service provider and the amount fed back to the electric service provider by the customer's distributed generation facility using the same meter.
  2. "Cogeneration facility" means a facility, other than a distributed generation facility, which produces electric energy, steam, or other forms of useful energy (such as heat) which are used for industrial, commercial, heating, or cooling purposes.
  3. "Commission" means the Georgia Public Service Commission.
  4. "Customer generator" means the owner and operator of a distributed generation facility.
  5. "Distributed generation facility" means a facility owned and operated by a customer of the electric service provider for the production of electrical energy that:
    1. Uses a solar Photovoltaic system, fuel cell, or wind turbine;
    2. Has a peak generating capacity of not more than 10kw for a residential application and 100kw for a commercial application;
    3. Is located on the customer's premises;
    4. Operates in parallel with the electric service provider's distribution facilities;
    5. Connected to the electric service provider's distribution system on either side of the electric service provider's meter; and
    6. Is intended primarily to offset part or all of the customer generator's requirements for electricity.
  6. "Electric membership corporation" means a corporation organized under Article 2 of this chapter.
  7. "Electric service provider" means any electric utility, electric membership corporation, or municipal electric utility that is engaged in the business of distributing electricity to retail electric customers in the state.
  8. "Electric supplier" means any electric utility, electric membership corporation furnishing wholesale service, any municipal electric utility or any other person which furnishes wholesale service to any municipality, and the Tennessee Valley Authority.
  9. "Electric utility" means any retail supplier of electricity whose rates are fixed by the commission.
  10. "Municipal electric utility" means a city or town that owns or operates an electric utility.
  11. "Person" means a natural person, corporation, trust, partnership, incorporated or unincorporated association, or any other legal entity.
  12. "Renewable energy sources" means energy supplied from technologies as approved in the Georgia Green Pricing Accreditation Program.

(Ga. L. 1979, p. 389, § 3; Code 1981, §46-3-51; Code 1981, §46-3-52, as redesignated by Ga. L. 2001, p. 1149, § 1.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2001, punctuation was modified in paragraph (4); and "10kw" was substituted for "10kW" and "100kw" was substituted for "100kW" in subparagraph (5)(B).

Editor's notes.

- Ga. L. 2001, p. 1149, § 1, redesignated former Code Section 46-3-52 as present Code Section 46-3-53.

OPINIONS OF THE ATTORNEY GENERAL

"Operate."

- The term "operate" as used in O.C.G.A. § 46-3-52 means to run and to maintain a cogeneration facility. 1988 Op. Att'y Gen. No. 88-1.

Retail sales by cogenerators.

- Under current Georgia laws, cogenerators may not make retail sales of electricity in Georgia except to electric suppliers. 1985 Op. Att'y Gen. No. 85-42.

Operator need not own facility.

- Since O.C.G.A. § 46-3-52 uses the term "person," which is defined as "a natural person, corporation, trust, partnership, incorporated or unincorporated association, or any other legal entity," and does not use the term "cogenerator," which is defined as the owner of a cogeneration facility, it does not appear that the act requires the operator of a cogeneration facility to own the facility. 1988 Op. Att'y Gen. No. 88-1.

Third-party ownership and/or financing is permissible for cogeneration facilities so long as the operator of the facility uses all of the electric energy, steam, or other form of useful energy produced at the facility or sells the excess electric energy produced in accordance with O.C.G.A. § 46-3-53 (see subsection (b)). 1988 Op. Att'y Gen. 88-1.

Where energy used is irrelevant.

- Since the intent of the General Assembly is to authorize operators of cogeneration facilities to manufacture energy as necessary to meet their needs and to authorize the operators to sell any excess electrical energy to other electric utilities, it appears clear that the phrase "at such cogeneration facility" modifies the word "produced" and not the term "uses." Therefore, so long as the operator of the cogeneration facility uses all of the useful energy produced at the cogeneration facility with the exception of any excess electrical energy which is sold in accordance with the act, it is irrelevant where the energy is used. 1988 Op. Att'y Gen. No. 88-1.

46-3-53. Jurisdiction of commission over cogeneration facilities.

  1. Any person may operate a cogeneration facility without being subject to the jurisdiction or regulation of the commission if such person uses all of the electric energy, steam, or other form of useful energy produced at such cogeneration facility. The electric energy shall not be sold to any other person except as provided in subsection (b) of this Code section.
  2. Any person may operate a cogeneration facility and sell any excess electric energy to an electric supplier without being subject to the jurisdiction or regulation of the commission; provided, however, that nothing in this article shall except a person from compliance with federal law.

(Ga. L. 1979, p. 389, § 4; Code 1981, §46-3-52; Ga. L. 1981, p. 808, § 1; Code 1981, §46-3-53, as redesignated by Ga. L. 2001, p. 1149, § 1; Ga. L. 2002, p. 415, § 46.)

The 2002 amendment, effective April 18, 2002, part of an Act to revise, modernize, and correct the Code, substituted "except" for "affect" in subsection (b).

OPINIONS OF THE ATTORNEY GENERAL

Retail sales by cogenerators.

- Under current Georgia laws, cogenerators may not make retail sales of electricity in Georgia except to electric suppliers. 1985 Op. Att'y Gen. No. 85-42.

46-3-54. Electric service providers; rates and fees.

An electric service provider:

  1. Shall make either bidirectional metering or single directional metering available to customer generators depending on how the distributed generation facility is connected to the distribution system of the electric service provider;
  2. Shall enter into a written agreement with the customer generator to charge the customer generator the rate established by the commission, or the appropriate governing body, in the case of any other electric service provider or electric supplier, for metering services;
  3. In setting the fees for metering service, the commission, or the appropriate governing body, in the case of any other electric service provider or electric supplier, will include the direct costs associated with interconnecting or administering metering services or distributed generation facilities and will not allocate these costs among the utility's entire customer base; and
  4. In establishing such a fee for metering services, the electric service provider shall not charge the customer generator any standby, capacity, interconnection, or other fee or charge, other than a monthly service charge, unless agreed to by the customer generator or approved by the commission, in the case of an electric utility, or the appropriate governing body, in the case of any other electric service provider or electric supplier.

(Code 1981, §46-3-54, enacted by Ga. L. 2001, p. 1149, § 1.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2001, "; and" was substituted for a period at the end of paragraph (3).

46-3-55. Measurement and payment of energy flow.

Consistent with the other provisions of this chapter, the energy flow shall be measured and paid for in the following manner:

  1. If the distributed generation facilities are connected to the electric service provider's distribution system on the customer generator's side of the customer's meter, the electric service provider shall:
    1. Measure the electricity produced or consumed during the billing period, in accordance with normal metering practices using bidirectional metering;
    2. When the electricity supplied by the electric service provider exceeds the electricity generated by the customer's distributed generation, the electricity shall be billed by the electric service provider, in accordance with tariffs filed with the commission; or
    3. When electricity generated by the customer's distributed generation system exceeds the electricity supplied by the electric service provider, the customer generator:
      1. Shall be billed for the appropriate customer charges for that billing period; and
      2. Shall be credited for the excess kilowatt-hours generated during the billing period at an agreed to rate as filed with the commission, with this kilowatt-hour credit appearing on the bill for the billing period; or
  2. If the distributed generation facilities are connected to the electric service provider's distribution system on the electric service provider's side of the customer's meter, the electric service provider shall:
    1. Measure the electricity produced or consumed during the billing period, in accordance with normal metering practices using single directional metering;
    2. Charge the customer generator a minimum monthly fee as established in Code Section 46-3-54; and
    3. If there is electricity generated by the customer generator for the billing period, the customer generator shall be compensated at an agreed to rate as filed with the commission.

(Code 1981, §46-3-55, enacted by Ga. L. 2001, p. 1149, § 1.)

Code Commission notes.

- Pursuant to Code Section 28-9-5, in 2001, "; or" was substituted for a period at the end of division (1)(C)(ii).

46-3-56. Requirement to purchase energy from customer generator; safety standards and regulations.

  1. An electric service provider will only be required to purchase energy as specified in Code Section 46-3-55 from an eligible customer generator on a first-come, first-served basis until the cumulative generating capacity of all renewable energy sources equals 0.2 percent of the utility's annual peak demand in the previous year; provided, however, that no electric service provider will be required to purchase such energy at a price above avoided energy cost unless that amount of energy has been subscribed under any renewable energy program.
  2. Once the capacity is subscribed, an electric service provider may purchase energy from an eligible customer generator at a cost of energy as defined for a utility by the commission, in the case of an electric utility, or by the appropriate governing body, in the case of any other electric service provider or electric supplier.
  3. A distributed generation facility used by a customer generator shall include, at the customer's own expense, all equipment necessary to meet applicable safety, power quality, and interconnection requirements established by the National Electrical Code, National Electrical Safety Code, the Institute of Electrical and Electronics Engineers, and Underwriters Laboratories.
  4. The commission, in the case of an electric utility, or the appropriate governing body, in the case of other electric service providers or electric suppliers, after appropriate notice and opportunity for comment, may adopt by regulation additional safety, power quality, and interconnection requirements for customer generator that the commission or governing body determines are necessary to protect public safety and system reliability.
  5. An electric service provider may not require a customer generator whose distributed generation facility meets the standards in subsections (a) and (b) of this Code section, to comply with additional safety or performance standards, perform or pay for additional tests, or purchase additional liability insurance.
  6. No electric service provider or electric supplier shall be liable to any person, directly or indirectly, for loss of property, injury, or death resulting from the interconnection of a cogenerator or distributed generation facility to its electrical system.

(Code 1981, §46-3-56, enacted by Ga. L. 2001, p. 1149, § 1; Ga. L. 2002, p. 415, § 46.)

The 2002 amendment, effective April 18, 2002, part of an Act to revise, modernize, and correct the Code, in subsection (a), deleted "to" preceding "0.2 percent" and "that" preceding "has been subscribed" and modified punctuation.

PART 4 S OLAR POWER FREE-MARKET FINANCING

Effective date.

- This part became effective July 1, 2015.

46-3-60. Short title.

This part shall be known and may be cited as the "Solar Power Free-Market Financing Act of 2015."

(Code 1981, §46-3-60, enacted by Ga. L. 2015, p. 1438, § 1/HB 57.)

46-3-61. Findings.

The General Assembly hereby finds and declares that:

  1. It is in the public interest to facilitate customers of electric service providers to invest in and install on their property solar technologies of their choice;
  2. Free-market financing of solar technologies may provide more customers with opportunities to install solar technology;
  3. Solar energy procurement agreements, and other similar financing arrangements, including those in which the payments are based on the performance and output of the solar technology installed on the property of customers of electric service providers, are financing arrangements which may help reduce or eliminate upfront costs involved in solar technology investments and installation by such customers; and
  4. Individuals and entities which offer or receive such financing opportunities through solar energy procurement agreements pursuant to this part should not be considered or treated as electric service providers.

(Code 1981, §46-3-61, enacted by Ga. L. 2015, p. 1438, § 1/HB 57.)

46-3-62. Definitions.

As used in this part, the term:

  1. "Affiliate" means any entity directly or indirectly controlling or controlled by or under direct or indirect common control with an electric service provider.
  2. "Capacity limit" means a peak generating capacity in alternating current that is no greater than:
    1. Ten kilowatts, for a residential application; or
    2. One hundred and twenty-five percent of the actual or expected maximum annual peak demand of the premises the solar technology serves, for a commercial application.
  3. "Control" means the power to significantly influence the management and policies of any affiliate, directly or indirectly, whether through the ownership of voting securities, by contract, or otherwise.
  4. "Electric service provider" means any electric supplier that is engaged in the business of distributing electricity to retail electric customers in this state.
  5. "Electric supplier" has the same meaning as provided in paragraph (3) of Code Section 46-3-3.
  6. "Entity" means any business entity, including, but not limited to, a corporation, partnership, limited liability company, or sole proprietorship.
  7. "Maximum annual peak demand" means the maximum single hour electric demand actually occurring or expected to occur at a premises, measured at the premises' electrical meter.
  8. "Person" means any individual or entity.
  9. "Premises" has the same meaning as provided in paragraph (6) of Code Section 46-3-3.
  10. "Property" means the tract of land on which a premises is located, together with all adjacent contiguous tracts of land utilized by the same retail electric customer.
  11. "Retail electric customer" means a person who purchases electric service from an electric service provider for such person's use and not for the purpose of resale.
  12. "Solar energy procurement agreement" means any agreement, lease, or other arrangement under which a solar financing agent finances the installation, operation, or both of solar technology in which the payments are based on the performance and output of the solar technology installed on the property.
  13. "Solar financing agent" means any person, including an electric service provider and an affiliate, whose business includes the leasing, financing, or installation of solar technology.
  14. "Solar technology" means a system that:
    1. Generates electric energy that is fueled solely by ambient sunlight;
    2. Is installed upon property owned or occupied by a retail electric customer; and
    3. Is connected to the electric service provider's distribution system on either side of the electric service provider's meter.

(Code 1981, §46-3-62, enacted by Ga. L. 2015, p. 1438, § 1/HB 57.)

46-3-63. Financing of solar technology; electric service provider prohibited from interfering with use of solar technology; electric service provider not liable for certain acts.

  1. Solar technology at or below the capacity limit may be financed by a retail electric customer through a solar financing agent utilizing a solar energy procurement agreement, provided that:
    1. Such solar technology and the installation thereof complies with all applicable state laws and all applicable county and municipal ordinances and permitting requirements; and
    2. The retail electric customer or the solar financing agent gives notice to the electric service provider serving the premises at least 30 days prior to operation of such solar technology.
  2. No electric service provider shall prevent or otherwise interfere with the installation, operation, or financing of solar technology by a retail electric customer through a solar financing agent pursuant to subsection (a) of this Code section, except that an electric service provider may require the retail electric customer to meet applicable safety, power quality, and interconnection requirements as provided in Code Section 46-3-64.
  3. An electric service provider not acting as a solar financing agent at the specific property where the liability arises shall not be liable for any loss of assets, injury, or death that may arise from, be caused by, or relate to:
    1. The act, or failure to act, of the retail electric customer or the solar financing agent relating to the solar technology;
    2. The solar energy procurement agreement or any other agreement between the retail electric customer and the solar financing agent; or
    3. The solar technology.
  4. A solar financing agent which is not an electric service provider or affiliate may provide solar energy procurement agreements authorized by this part, notwithstanding the restrictions of Part 1 of this article.
  5. A property with multiple premises may have multiple solar technologies financed by solar energy procurement agreements; provided, however, that a single solar technology is not connected to multiple premises and that the cumulative capacity of solar technologies connected to a premises shall not exceed the capacity limit. Solar technology installed to serve one premises shall only generate electric energy that is used on and by such premises or fed back to an electric service provider.

(Code 1981, §46-3-63, enacted by Ga. L. 2015, p. 1438, § 1/HB 57.)

46-3-64. Requirements upon a retail electric customer utilizing solar technology connected to an electric system of an electric service provider.

  1. For solar technology with a peak generating capacity of not more than 10 kilowatts for a residential application and not more than 100 kilowatts for a commercial application, the electric service provider may require the retail electric customer or solar financing agent to provide, at the retail electric customer's or solar financing agent's expense, all equipment necessary to meet applicable safety, power quality, and interconnection requirements established by the National Electrical Code, National Electrical Safety Code, Institute of Electrical and Electronics Engineers, and Underwriters Laboratories, prior to interconnecting the solar technology to the electric service provider's electric system. If such applicable safety, power quality, and interconnection requirements are met, an electric service provider shall not require compliance with additional safety or performance standards, require the performance of or payment for additional tests, or require the purchase of additional liability insurance.
  2. For solar technology with a peak generating capacity of more than 10 kilowatts for a residential application and more than 100 kilowatts for a commercial application, the electric service provider may require compliance with additional requirements beyond those specified in subsection (a) of this Code section. Such additional requirements shall include only those necessary to protect public safety, power quality, and system reliability.

(Code 1981, §46-3-64, enacted by Ga. L. 2015, p. 1438, § 1/HB 57.)

46-3-65. Clarification of who shall be considered an electric supplier and an electric service provider.

  1. Provided that the solar technology does not exceed the capacity limit, the leasing, financing, or installation of such solar technology through a solar energy procurement agreement shall not be considered the provision of electric service to the public, retail electric service, or retail supply of electricity by the solar financing agent, and neither the retail electric customer nor the solar financing agent shall be considered an electric supplier within the meaning of Part 1 of this article or in violation of exclusive electric service rights arising therein.
  2. Notwithstanding any other provision of law, a solar financing agent's actions under this part shall not cause the solar financing agent to be considered an electric service provider for any purpose under this title.
  3. Any electric service provider or affiliate shall be authorized to become a solar financing agent; provided, however, that the restrictions of Part 1 of this article shall apply to any such electric service provider's provision of solar technology. An electric service provider and an affiliate shall be subject to subsection (a) of Code Section 46-3-11 in providing services as a solar financing agent.

(Code 1981, §46-3-65, enacted by Ga. L. 2015, p. 1438, § 1/HB 57.)

46-3-66. Construction and applicability.

  1. Except as provided in subsection (d) of Code Section 46-3-63 and subsections (a) and (b) of Code Section 46-3-65, nothing in this part shall be construed as modifying the restrictions of Part 1 of this article on the sale, offer for sale, or distribution of retail electric service in this state.
  2. Nothing in this part shall be construed to create or alter rights in real property or to change any restrictions or regulations on the use of real property that may exist under any means, including, but not limited to, a covenant, contract, ordinance, or state or federal law.
  3. Nothing in this part shall be construed to restrict, affect, or diminish the ability of any county or municipality to adopt or enforce ordinances, permits, or regulations, or otherwise to exercise any lawful power under the Constitution or laws of this state, including, without limitation, those affecting zoning, land use, or the use of public rights of way.
  4. Nothing in this part shall be applied to impair any obligation or right under a contract entered into prior to the effective date of this part or any amendment to or extension of such contract.
  5. Nothing in this part shall be applied to any party to a wholesale electric power or transmission service contract entered into prior to the effective date of this part or to any original party to such contract that is subsequently amended or extended to the extent that the financing and installation of the solar technology would cause such party to be in breach of such contract or increase the costs of such contract by $100,000.00 or more. Any legal successor to substantially all rights and assets of a party shall also be considered a party under this subsection.

(Code 1981, §46-3-66, enacted by Ga. L. 2015, p. 1438, § 1/HB 57.)

ARTICLE 2 NONPROFIT RURAL ELECTRIFICATION MEMBERSHIP CORPORATIONS

46-3-70.

Reserved. Repealed by Ga. L. 1981, p. 1587, § 6, effective July 1, 1981.

Editor's notes.

- Ga. L. 2016, p. 864, § 46/HB 737, effective May 3, 2016, part of an Act to revise, modernize, and correct the Code, designated Code Section 46-3-70 as reserved.

46-3-71 through 46-3-97.

Repealed by Ga. L. 1981, p. 1587, § 6, effective July 1, 1981.

ARTICLE 3 MUNICIPAL ELECTRIC AUTHORITY OF GEORGIA

JUDICIAL DECISIONS

Power of authority to function and contract as state instrumentality.

- The Municipal Electric Authority has authority to function and contract as instrumentality of the state in providing electric power to the political subdivisions of the state which own and operate electric distribution systems, and to contract with power companies, electric membership corporations, and political subdivisions for the purchase, ownership, operation, and maintenance of the facilities which constitute the subject matter of the contracts. Thompson v. Municipal Elec. Auth., 238 Ga. 19, 231 S.E.2d 720 (1976).

Immunity from antitrust laws.

- The Municipal Electric Authority of Georgia (MEAG) is an "instrumentality of the state" as are its participants, political subdivisions who entered long-term power supply agreements, and is therefore immune from the antitrust laws under the state action immunity doctrine broadened by the Supreme Court in Town of Hallie v. City of Eau Claire, 471 U.S. 34, 105 S. Ct. 1713, 85 L. Ed. 2d 24 (1985) and Southern Motor Carriers Rate Conference, Inc. v. United States, 471 U.S. 48, 105 S. Ct. 1721, 85 L. Ed. 2d 36 (1985). Greensboro Lumber Co. v. Georgia Power Co., 643 F. Supp. 1345 (N.D. Ga. 1986), aff'd, 844 F.2d 1538 (11th Cir. 1988).

Act not preempted by federal law.

- The Federal Telecommunications Act (47 USC § 151 et seq.) did not preempt the Public Service Commission from applying the Municipal Electric Authority of Georgia (MEAG) Act to forestall MEAG from applying for a certificate to sell excess telecommunications capacity to the public for hire. Municipal Elec. Auth. v. Georgia Pub. Serv. Comm'n, 241 Ga. App. 237, 525 S.E.2d 399 (1999).

Cited in Appling County v. Municipal Elec. Auth., 621 F.2d 1301 (5th Cir. 1980).

46-3-110. Declaration of necessity.

Whereas certain political subdivisions of this state now own and operate electric distribution systems to serve their citizens, inhabitants, and customers by providing them electricity for all purposes; and whereas, if such political subdivisions are to furnish, and if the members of the public in the areas they serve are to receive, adequate service, such political subdivisions must have adequate, dependable, and economical sources and supplies of bulk electric power; it is declared that there exists in this state a need for an authority to function without profit in developing and promoting for the public good in this state adequate, dependable, and economical sources and supplies of bulk electric power and energy for the purposes expressed in this Code section.

(Ga. L. 1975, p. 107, § 1.)

46-3-111. Definitions.

As used in this article, the term:

  1. "Authority" means the Municipal Electric Authority of Georgia and any successor thereto. Any change in name or composition of the authority shall in no way affect the vested rights of any person under this article or impair the obligations of any contracts existing under this article.
  2. "Bond anticipation notes" or "notes" means short-term obligations issued after validation of bonds and in anticipation of the issuance of the bonds as validated.
  3. "Bonds" or "revenue bonds" means any bonds issued by the authority under this article, including refunding bonds.
  4. "Cost of project" or "cost of construction" means all costs of construction; all costs of real and personal property required for the purposes of such project and facilities related thereto, including land and any rights or undivided interests therein, easements, franchises, water rights, fees, permits, approvals, licenses, and certificates, and the securing of such permits, approvals, licenses, and certificates and the preparation of applications therefor, and including all machinery and equipment, including equipment for use in connection with such construction, and the initial fuel supply acquired for such project; financing charges; interest prior to and during construction and during such additional period as the authority may reasonably determine to be necessary for the placing of such project in operation; costs of engineering, architectural, and legal services; costs of plans and specifications and all expenses necessary or incidental to determining the feasibility or practicability of the project; administrative expenses; and such other expenses as may be necessary or incidental to the financing authorized by this article. All funds paid or advanced for any of the purposes mentioned in this paragraph by political subdivisions contracting with the authority prior to the issuance of any of the authority's bonds or notes may be refunded to such political subdivisions out of the proceeds of any bonds or notes so issued. The costs of any project may also include a fund or funds for the creation of a debt service reserve, a renewal and replacement reserve, a fuel reserve, and such other reserves as may be reasonably required by the authority for the operation of its projects and as may be authorized by any bond resolution or trust agreement or indenture pursuant to the provisions of which the issuance of any such bonds may be authorized. Any obligation or expense incurred for any of the purposes mentioned in this paragraph shall be regarded as a part of the cost of the project and may be paid or reimbursed as such out of the proceeds of revenue bonds or notes issued under this article for such project.
  5. "Election committee" means the Municipal Electric Authority of Georgia Membership Election Committee, as created in Code Section 46-3-113.
  6. "Project," "undertaking," or "facility" means electric generation and transmission lines and works and all property, whether real or personal, of every kind and nature material or pertinent thereto or necessary therefor which may be used or useful in the development of electric power and energy and in the supplying of such electric power and energy to all those entities contracting with the authority therefor. These terms may include a divided or undivided interest in any electric generation or transmission facility in which the authority participates as an owner in common with others. These terms may be used interchangeably.

(Ga. L. 1975, p. 107, § 5.)

46-3-112. Creation of authority; status of authority as instrumentality of state; location of principal office and legal situs or residence of authority.

There is created a public body corporate and politic to be known as the Municipal Electric Authority of Georgia, which shall be a public corporation of the State of Georgia and shall have a perpetual existence. This authority, however, shall not be a state institution nor a department or agency of the state but shall be an instrumentality of the state, a mere creature of the state, having distinct corporate entity and being exempt from Article 2 of Chapter 17 of Title 50. The authority shall have its principal office in Fulton County, and its legal situs or residence for the purpose of this article shall be Fulton County.

(Ga. L. 1975, p. 107, § 2; Ga. L. 1975, p. 1200, § 1.)

JUDICIAL DECISIONS

Creation of authority and grant of powers to it not unconstitutional.

- As the Municipal Electric Authority is a public corporation of the state, the creation of the authority and the granting of powers to it do not constitute a grant of corporate powers and privileges to a private company in violation of Ga. Const. 1976, Art. III, Sec. VIII, Para. V (Ga. Const. 1983, Art. III, Sec. VI, Para. V). Thompson v. Municipal Elec. Auth., 238 Ga. 19, 231 S.E.2d 720 (1976).

Immunity from antitrust laws.

- The Municipal Electric Authority of Georgia (MEAG) is an "instrumentality of the state" as are its participants, political subdivisions who entered long-term power supply agreements, and is therefore immune from the antitrust laws under the state action immunity doctrine broadened by the Supreme Court in Town of Hallie v. City of Eau Claire, 471 U.S. 34, 105 S. Ct. 1713, 85 L. Ed. 2d 24 (1985) and Southern Motor Carriers Rate Conference, Inc. v. United States, 471 U.S. 48, 105 S. Ct. 1721, 85 L. Ed. 2d 36 (1985). Greensboro Lumber Co. v. Georgia Power Co., 643 F. Supp. 1345 (N.D. Ga. 1986), aff'd, 844 F.2d 1538 (11th Cir. 1988).

RESEARCH REFERENCES

C.J.S.

- 29 C.J.S., Electricity, § 25.

46-3-113. Number of members of authority; creation of Municipal Electric Committee of Georgia Membership Election Committee; designation of members; selection of officers; receiving of nominations, election and terms of first members of authority.

  1. The authority shall consist of nine members. The first nine members shall be elected as provided in this Code section.
  2. On or before June 16, 1975, each of those political subdivisions which have, prior to such date, by proper resolution of their respective governing bodies, declared their intention to contract with the authority for the purchase of electric power and energy (other than for short-term purchases) shall designate one person, who shall be a resident of such political subdivision, as its representative on a body to be known as the Municipal Electric Authority of Georgia Membership Election Committee, provided that at least five political subdivisions have declared their intention to contract with the authority. All such resolutions of declaration of intention to contract with the authority shall be presented to the election committee at its first meeting, which shall be held in the office of the Georgia Municipal Association at 11:00 A.M. on Monday, June 22, 1975.
  3. At its first meeting, the election committee shall organize and shall elect a chairman and such other officers as may be desirable in the determination of the election committee. The election committee shall then determine the sufficiency of the resolutions presented to it and shall determine the number of votes (including fractions thereof) which each representative to the election committee shall be entitled to cast in accordance with Code Section 46-3-117. Nominations for membership on the authority shall then be received by the election committee prior to adjournment of its first meeting.
  4. The election committee shall then meet for the second time on Monday, June 29, 1975, at the same time and place to receive any other nominations to the authority that may be made. A vote shall then be taken; and the nine nominees receiving the largest number of votes cast by a quorum of the election committee, as such quorum is determined by subsection (c) of Code Section 46-3-117, shall be declared the first nine members of the authority. Insofar as may be consistent with the remaining provisions of this Code section, in the election of the first nine members, the three nominees receiving the highest number of votes shall be elected to terms of three years; the three nominees receiving the next highest number of votes shall be elected to terms of two years; and the three nominees receiving the next highest number of votes shall be elected to terms of one year. Any tie votes shall be resolved by lot in such manner as shall be prescribed by the election committee.
  5. Notwithstanding any other provision of this Code section to the contrary, in the event it should be mathematically necessary in the election of the members of the authority for two members to be residents of the same political subdivision, then one of the two members who are residents of the same political subdivision shall be elected for an initial term of one year. In the event there are four political subdivisions from which two residents must be elected, one of the residents of one of such political subdivisions shall be elected for an initial term of two years.

(Ga. L. 1975, p. 107, § 4.)

46-3-114. Residency requirements for authority members; ineligibility of election committee representatives for membership; eligibility of members to succeed themselves.

Each member of the authority shall be a resident of one of the political subdivisions represented on the election committee, but, insofar as is mathematically possible, no two members shall reside in the same political subdivision. Representatives to the election committee shall not be eligible for membership on the authority. Members shall be eligible to succeed themselves.

(Ga. L. 1975, p. 107, § 4.)

46-3-115. Terms of authority members generally; time of meeting of election committee prior to annual meeting of authority.

Upon the expiration of the terms of the first members of the authority, members shall be elected for three-year terms, provided that in the year in which a member's term is to expire, the term shall not expire until the adjournment of the annual meeting for that year and until a successor is elected. The election committee shall meet at a date not more than 30 days prior to each annual meeting of the authority and shall elect members to fill the terms which will expire at the conclusion of such annual meeting.

(Ga. L. 1975, p. 107, § 4.)

Cross references.

- Annual meeting of authority, § 46-3-121.

46-3-116. Selection of additional representatives to election committee by political subdivisions subsequently contracting with authority.

  1. Each political subdivision contracting with the authority (other than for short-term purchases) following the election of the first nine members of the authority shall designate a representative to the election committee no more than 30 days following the execution of such contract by and between the authority and such political subdivision. The term of such additional representative shall begin with the next meeting of the election committee.
  2. Representatives to the election committee shall serve at the pleasure of the governing body of the political subdivision which appointed them.

(Ga. L. 1975, p. 107, § 4.)

46-3-117. Manner of distribution of votes among representatives to election committee; quorum of election committee.

  1. In elections held by the election committee to elect members to the authority, each political subdivision entitled to representation on the election committee shall have and shall be entitled to have its representative on the election committee cast one whole vote plus an additional vote or votes (including fractions thereof) to be determined as provided in this subsection. The percentage which is arrived at by dividing the number of kilowatt hours taken from Georgia Power Company by each such political subdivision during the immediately preceding calendar year by the total number of kilowatt hours taken from Georgia Power Company by all such political subdivisions during the immediately preceding calendar year shall be determined; and each such percentage shall then be applied to a total number of votes equal to the total number of political subdivisions entitled to representation on the election committee. The resulting figure, calculated to the nearest one-thousandth, shall be the additional vote or votes (including fractions thereof) to which each respective political subdivision is entitled.
  2. At such time as facilities of the authority are placed in commercial operation as determined by the authority and energy is being supplied by the authority to political subdivisions contracting with the authority, then and thereafter each such political subdivision entitled to representation on the election committee shall have and shall be entitled to have its representative on the election committee cast one whole vote plus an additional vote or votes (including fractions thereof) to be determined as provided in this subsection. The percentage which is arrived at by dividing the number of kilowatt hours taken from the authority by each such political subdivision during the immediately preceding calendar year by the total number of kilowatt hours taken from the authority by all such political subdivisions during the immediately preceding calendar year shall be determined; and each such percentage shall then be applied to a total number of votes equal to the total number of political subdivisions entitled to representation on the election committee. The resulting figure, calculated to the nearest one-thousandth, shall be the additional vote or votes (including fractions thereof) to which each respective political subdivision is entitled by reason of energy taken. Notwithstanding any other provision of this subsection, at the meeting of the election committee in the calendar year immediately following the calendar year in which such facilities are first placed in commercial operation, as determined by the authority, and energy is being supplied by the authority to such political subdivisions, the period of time upon which the determination shall be made of the additional vote or votes (including fractions thereof) to which the representatives of the election committee shall be entitled at such meeting shall be the remainder of the calendar year in which energy was first supplied to such political subdivisions, provided that such facilities have been in commercial operation, as determined by the authority, and energy has been supplied for a minimum of six months in the immediately preceding calendar year. If such facilities of the authority have not been in commercial operation, as determined by the authority, and if energy has not been supplied for a minimum of six months in the immediately preceding calendar year, such additional vote or votes (including fractions thereof) shall be determined by the number of kilowatt hours taken from Georgia Power Company in accordance with subsection (a) of this Code section.
  3. The presence at any meeting of the election committee of representatives entitled to cast two-thirds of the total votes to which the election committee shall be entitled shall constitute a quorum of the election committee.

(Ga. L. 1975, p. 107, § 4; Ga. L. 1982, p. 3, § 46.)

46-3-118. Vacancies on authority.

Any vacancy in the membership of the authority shall be filled by a new member who shall be elected by the remaining members of the authority and who shall serve until the next meeting of the election committee. At the first meeting of the election committee following the filling of such vacancy, the election committee shall elect a member to fill the remainder, if any, of the unexpired term for which such vacancy was filled. Upon such election by the election committee, the membership on the authority of the member previously elected by the remaining members of the authority to fill such vacancy shall terminate.

(Ga. L. 1975, p. 107, § 4.)

46-3-119. Officers of authority.

The authority shall elect from its membership a chairman, a vice-chairman, a secretary-treasurer, and an assistant secretary-treasurer. Such officers shall serve for such terms as shall be prescribed by resolution of the authority or until their successors are elected and qualified.

(Ga. L. 1975, p. 107, § 4.)

46-3-120. Quorum of authority; action by majority vote; adjournment of meetings at which less than a majority is present.

At all meetings of the authority, the presence in person of a majority of the members in office shall be necessary for the transaction of business, and the affirmative vote of a majority of the members then in office shall be necessary for any action of the authority. No vacancy in the membership of the authority shall impair the right of such majority to exercise all the rights and perform all the duties of the authority. If at any meeting there is less than a majority present, a majority of those present may adjourn the meeting to a fixed time and place, and notice of such time and place shall be given in accordance with subsection (c) of Code Section 46-3-121, provided that if the time element of subsection (c) of Code Section 46-3-121 cannot reasonably be complied with, such notice, if any, of such adjourned meeting shall be given as is reasonably practical.

(Ga. L. 1975, p. 107, § 4.)

46-3-121. Annual meeting of authority; special meetings; notice of meetings; waiver of notice; regular meetings other than annual meeting.

  1. The annual meeting of the authority shall be held on the anniversary date of the first meeting of the authority unless the date, time, and place of such annual meeting shall otherwise be fixed by resolution of the authority, provided that any such date so fixed shall be in reasonable proximity to the anniversary date of such first meeting.
  2. Special meetings of the authority may be called by resolution of the authority, by the chairman or vice-chairman, or upon the written request of at least three members of the authority.
  3. Written notice of all meetings shall be delivered to each political subdivision contracting with the authority other than for short-term purchases, and to each member of the authority not less than ten days prior to the date of such meeting in the case of regular meetings and not less than three days in the case of special meetings.
  4. Notice of a meeting of the authority need not be given to any member who signs a waiver of notice either before or after the meeting. Attendance of a member at a meeting shall constitute a waiver of notice of such meeting and a waiver of any and all objections to the place or time of the meeting or to the manner in which it has been called or convened, except when a member states at the beginning of the meeting any such objection or objections to the transaction of business. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the authority need be specified in the notice or waiver of notice of such meetings.
  5. In addition to the annual meeting of the authority, regular meetings of the authority may be established by resolution of the authority; and no notice, other than notice of the adoption of such resolution to any member of the authority who was absent when it was adopted, shall be required for such meeting, except for the notice required by subsection (c) of this Code section.

(Ga. L. 1975, p. 107, § 4; Ga. L. 1982, p. 3, § 46.)

Editor's notes.

- The first meeting of the authority, as referred to in subsection (a) of this Code section, was held on July 7, 1975.

46-3-122. Reimbursement of members for expenses; making of rules and regulations by authority; employment of staff and personnel; designation of assistant secretary-treasurer.

The members of the authority shall not be entitled to compensation for their services but may be reimbursed by the authority for their actual expenses properly incurred in the performance of their duties. The authority shall make rules and regulations for its own government and may retain, employ, and engage all necessary staff and personnel, including professional and technical supervisors, assistants, and experts and other agents and employees, whether temporary or permanent, as it may require. Any one or more of such persons so engaged may be designated as an additional assistant secretary-treasurer of the authority and may be given the duties of keeping the books, records, and minutes of the authority, of giving all notices required by Code Sections 46-3-120, 46-3-121, and 46-3-123, and, in the absence of or in lieu of the secretary-treasurer, performing all other functions of the secretary-treasurer. Officers designated by the authority pursuant to this Code section shall serve at the pleasure of the authority.

(Ga. L. 1975, p. 107, § 4.)

JUDICIAL DECISIONS

Cited in Greensboro Lumber Co. v. Georgia Power Co., 643 F. Supp. 1345 (N.D. Ga. 1986).

46-3-123. Removal of authority members from office.

The election committee shall have the power to remove from office any member of the authority for cause after written notice and public hearing.

(Ga. L. 1975, p. 107, § 4.)

46-3-124. Books and records generally.

The authority shall keep suitable books and records of all its obligations, contracts, transactions, and undertakings; of all income and receipts of every nature; and of all expenditures of every kind.

(Ga. L. 1975, p. 107, § 4.)

46-3-125. Purpose of authority.

The purpose of the authority shall be to acquire or construct, or to acquire and construct, and to operate and maintain, or to cause to be constructed, operated, and maintained, electric generation and transmission facilities. In addition, it shall be the purpose of the authority to take all other necessary or desirable action in order to provide or make available an adequate, dependable, and economical supply of electric power and energy and related services to those political subdivisions of this state identified in Code Section 46-3-130 which may desire the same and, incidentally and so as to take advantage of economies of scale in the generation and transmission of electric power and energy, to other persons and entities.

(Ga. L. 1975, p. 107, § 3.)

JUDICIAL DECISIONS

Limitations on authority.

- The Municipal Electric Authority of Georgia (MEAG) Act did not authorize MEAG to apply to the Public Service Commission for a certificate to offer its excess telecommunications capacity to the public for hire. Municipal Elec. Auth. v. Georgia Pub. Serv. Comm'n, 241 Ga. App. 237, 525 S.E.2d 399 (1999).

Cited in Thompson v. Municipal Elec. Auth., 238 Ga. 19, 231 S.E.2d 720 (1976); Appling County v. Municipal Elec. Auth., 621 F.2d 1301 (5th Cir. 1980).

RESEARCH REFERENCES

C.J.S.

- 29 C.J.S., Electricity, § 25.

46-3-126. Powers of authority generally.

The authority shall have all powers necessary or convenient to carry out and effectuate the purpose and provisions of this article including, but without limiting the generality of the foregoing, the power:

  1. To sue and be sued in contract and in tort and to complain and defend in all courts;
  2. To adopt and alter a corporate seal;
  3. To acquire in its own name real property or rights and easements therein and franchises and personal property necessary or convenient for its corporate purposes, by purchase, on such terms and conditions and in such manner as it may deem proper, or by the exercise of the power of eminent domain in accordance with any and all existing laws of the State of Georgia applicable to the condemnation of property for public use, including the power to proceed as a condemning body under Article 2 of Chapter 2 of Title 22 or by gift, grant, lease, or otherwise; to insure the same against any and all risks as such insurance may, from time to time, be available; and to use such property, rent or lease the same to or from others, make contracts with respect to the use thereof, or sell, lease, or otherwise dispose of any such property in any manner it deems to the best advantage of the authority and the purposes thereof. The power to acquire, use, and dispose of property provided in this paragraph shall include the power to acquire, use, and dispose of any interest in such property, whether divided or undivided, which acquisition may result in the ownership of such property or any part thereof in common with any other party, whether public or private. Title to any such property of the authority, however, shall be held by the authority exclusively for the benefit of the public. The authority shall be under no obligation to accept and pay for any property condemned under this article except from the funds provided under the authority of this article and, in any proceedings to condemn, such orders may be made by the court having jurisdiction of the action as may be just to the authority and to the owners of the property to be condemned. If the authority shall deem it expedient to construct any project on lands which are subject to the control of the state or of any political subdivision or public corporation of the state, the Governor, in the case of lands controlled by the state, or the governing authorities of such political subdivisions or such public corporations are authorized to convey such lands to the authority for such consideration, not exceeding reasonable value, as may be agreed upon by the authority, as grantee, and by the Governor or by the governing body of such political subdivision or by such public corporation, as grantor, taking into consideration the public benefit to be derived from such conveyance;
  4. To appoint and select officers, agents, and employees, including engineering, architectural, and construction experts, fiscal agents, and attorneys, and to fix their compensation;
  5. To acquire, by purchase or otherwise, in whole or in part, as provided in paragraph (3) of this Code section, and to place into operation and operate or cause to be placed into operation and operated, either as owner of all or of any part in common with others or as agent, electric generation and transmission lines, works, facilities, and projects; to provide, by sale or otherwise, an adequate, dependable, and economical electric power supply to political subdivisions of this state contracting with the authority pursuant to authority of Code Section 46-3-130; and, through such political subdivisions, to supply such electric power to the members of the public in the areas served by them; and, as agent for such political subdivisions, to secure power supply contracts and arrangements with other persons. The authority shall also have the power, which may be exercised either as principal or as agent, to manufacture, generate, store, and transmit electric current for light, heat, power, and energy; to manufacture, buy, sell, import, export, lease, or otherwise acquire and generally deal in electrical apparatuses of all kinds and machinery and devices and nuclear or fossil fuels for the manufacture, generation, storage, and transmission of electric current for light, heat, power, and energy; to purchase power at retail or wholesale from any other person; to purchase or construct part of the capacity of generation or transmission projects sponsored and owned by or in common with others, making any such purchase at wholesale or retail within or without this state; to contract for the purchase of power and energy from, or the sale of power and energy to, the United States government and electric utility systems either privately or publicly owned, within or without this state; to execute long- or short-term power purchase or sale contracts on terms which may include agreements with respect to resale rates and the disposition of revenues; to interchange, exchange, and purchase power and energy from any person; to erect, buy, lease, or otherwise acquire, operate, and maintain electric lighting, heating, and power projects; to transmit power both for itself and on behalf of others; to erect, buy, sell, lease, or otherwise acquire, maintain, and operate or cause to be maintained and operated plants, underground subways, conduits, poles, and wires above, upon, and under the streets, alleys, lands, and territories of political subdivisions, public or private corporations, or individuals; and to continue to sell electric power to political subdivisions of this state which are authorized to contract with the authority pursuant to Code Section 46-3-130 and to other persons and entities and, as agent for any or all of the same, to make power and energy otherwise available to them through arrangements with other persons, all in the exercise of the powers of the authority and to effectuate the purposes of this article;
  6. To contract with the state and its agencies, instrumentalities, and departments, with those political subdivisions of the state which are authorized to contract with the authority pursuant to Code Section 46-3-130 and with private persons and corporations. This power includes the making of contracts for the construction of projects, which contracts for construction may be made either as sole owner of the project or as owner, in common with other public or private persons, of any divided or undivided interest therein;
  7. To exercise any one or more of the powers, rights, and privileges conferred by this Code section either alone or jointly or in common with one or more other parties or utilities, whether public or private. In any such exercise of such powers, rights, and privileges jointly or in common with others with respect to the construction, operation, and maintenance of electric generation or transmission facilities, the authority may own an undivided interest in such facilities with any other parties, whether public or private. The authority may enter into agreements with respect to any such electric generation or transmission facility with the other parties participating therein, and any such agreement may contain such terms, conditions, and provisions consistent with this article as the parties thereto shall deem to be in their best interests. Any such agreement may include, but need not be limited to, provisions for the construction, operation, and maintenance of such electric generation or transmission facility by any one or more of the parties to such agreement, which party or parties shall be designated in or pursuant to such agreement as agent or agents on behalf of itself and one or more of the other parties thereto, or by such other means as may be determined by the parties thereto. Such an agreement may also include provisions for methods of determining and allocating among or between the parties the costs of construction, operation, maintenance, renewals, replacements, improvements, and disposals with respect to such facility. In carrying out its functions and activities as such agent with respect to the construction, operation, and maintenance of such a facility, such agent shall be governed by the laws and regulations applicable to such agent as a separate legal entity and not by any laws or regulations which may be applicable to any of the other participating parties. Notwithstanding any other law to the contrary, pursuant to the terms of any such agreement the authority may delegate its powers and duties with respect to the construction, operation, and maintenance of such facility to the party acting as agent; and all actions taken by such agent in accordance with the provisions of such agreement may be made binding upon the authority without further action or approval by the authority;
  8. To accept, receive, and administer gifts, grants, appropriations, and donations of money, materials, and property of any kind, including loans and grants from the United States government or the State of Georgia or any agency, department, authority, or instrumentality of either, upon such terms and conditions as the United States government, the State of Georgia, or such agency, department, authority, or instrumentality shall impose; to administer trusts; and to sell, lease, transfer, convey, appropriate, and pledge any and all of its property and assets;
  9. To invest any accumulation of its funds and any sinking fund or reserves in any manner that public funds of this state or its political subdivisions may be invested, and to purchase its own bonds and notes;
  10. To do any and all things necessary or proper for the accomplishment of the objectives of this article and to exercise any power usually possessed by private corporations performing similar functions which is not in conflict with the Constitution and laws of this state, including:
    1. Employment of professional and administrative staff and personnel and retaining of legal, engineering, and other professional services;
    2. The purchasing of all kinds of insurance, including, without limitation, insurance against tort liability and against risks of damage to property;
    3. The borrowing of money for any of the corporate purposes of the authority, provided that obligations of the authority other than revenue bonds for which provision is made in this article shall be payable from the general funds of the authority and shall not be a charge against any special fund allocated to the payment of revenue bonds;
    4. The power to indemnify and hold harmless any parties contracting with the authority or its agents from damage to persons or property; and
    5. The power to act as self-insurer with respect to any loss or liability;
  11. To issue its revenue bonds as provided in this article in evidence of its indebtedness incurred with respect to the powers described in this Code section, such bonds to be payable from the revenues, receipts, and earnings of the projects of the authority and other available funds thereof; to execute trust agreements or indentures; to sell, convey, pledge, and assign any and all of its funds, assets, property, and income as security for the payment of such revenue bonds; and to provide for the payment of the same and for the rights of the owners thereof.

(Ga. L. 1975, p. 107, § 7.)

JUDICIAL DECISIONS

Constitutionality.

- Ga. L. 1975, p. 107 (see O.C.G.A. Art. 3, Ch. 3, T. 46) is not in violation of Ga. Const. 1976, Art. IX, Sec. IV, Para. III (Ga. Const. 1983, Art. IX, Sec. II, Para. VIII) since the authority is not a county, municipal corporation, or political subdivision of this state. Thompson v. Municipal Elec. Auth., 238 Ga. 19, 231 S.E.2d 720 (1976).

No constitutional prohibition against authority acquiring property.

- There is no constitutional prohibition against the Municipal Electric Authority acquiring property, or an undivided interest therein, from private persons, or contracting with private persons for the construction, operation, or maintenance of its project. Thompson v. Municipal Elec. Auth., 238 Ga. 19, 231 S.E.2d 720 (1976).

Limitations on authority.

- The Municipal Electric Authority of Georgia (MEAG) Act did not authorize MEAG to apply to the Public Service Commission for a certificate to offer its excess telecommunications capacity to the public for hire. Municipal Elec. Auth. v. Georgia Pub. Serv. Comm'n, 241 Ga. App. 237, 525 S.E.2d 399 (1999).

Immunity from antitrust laws.

- Any anticompetitive effect which the participation of the Municipal Electric Authority of Georgia (MEAG) in the integrated transmission system (ITS) and joint ownership agreements might have caused were a foreseeable result of the specific authorizations contained in Georgia law, so that such participation is immune from antitrust attack. Greensboro Lumber Co. v. Georgia Power Co., 643 F. Supp. 1345 (N.D. Ga. 1986), aff'd, 844 F.2d 1538 (11th Cir. 1988).

Cited in Appling County v. Municipal Elec. Auth., 621 F.2d 1301 (5th Cir. 1980); Greensboro Lumber Co. v. Georgia Power Co., 643 F. Supp. 1345 (N.D. Ga. 1986).

RESEARCH REFERENCES

ALR.

- Furnishing electricity to public as public use or purpose for which power of eminent domain may be exercised, 44 A.L.R. 735; 58 A.L.R. 787.

Elements and measure of compensation for power lines or other wire lines over private property, 49 A.L.R. 697; 124 A.L.R. 407.

Power of municipal corporation to extend its service beyond corporate limits, 49 A.L.R. 1239; 98 A.L.R. 1001.

Duty to extend electrical service or supply individual applicant as affected by cost involved, 58 A.L.R. 537.

Power of eminent domain as between state and subdivision or agency thereof, or as between different subdivisions or agencies themselves, 35 A.L.R.3d 1293.

Right of public utility to deny service at one address because of failure to pay for past service rendered at another, 73 A.L.R.3d 1292.

46-3-127. Policy as to nonprofit operation of projects by authority; fixing of rates, fees, and charges by authority.

The authority shall not operate or construct any project for profit except insofar as any such profit will inure to the benefit of the public. The authority shall fix the rates, fees, and charges consistent with this declaration of policy such as will produce revenues only in amounts sufficient, together with all other funds of the authority, to pay principal and interest on bonds and obligations of the authority, to provide for maintenance and operation of the authority and of its projects, and to maintain such reserves as shall have been created in amounts sufficient in the judgment of the authority for the security of the bonds and for the improvement, replacement, or expansion of the facilities or services of the authority or to provide fuel for its generating projects.

(Ga. L. 1975, p. 107, § 12.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 64 Am. Jur. 2d, Public Utilities, § 73 et seq.

C.J.S.

- 29 C.J.S., Electricity, § 34.

ALR.

- Variations of electric utility rates based on quantity used, 67 A.L.R. 821.

Disposition of revenues from operation of revenue-producing enterprise owned by municipal corporation, 103 A.L.R. 579; 165 A.L.R. 854.

Right to cut off supply of electricity or gas because of nonpayment of service bill or charges, 112 A.L.R. 237.

Validity of "fuel adjustment" or similar clauses authorizing electric utility to pass on increased cost of fuel to its customers, 83 A.L.R.3d 933.

Advertising or promotional expenditures of public utility as part of operating expenses for rate-making purposes, 83 A.L.R.3d 963.

46-3-128. Declaration of authority property as public property; payments by authority in lieu of taxes; tax exemption for authority property, income, obligations, and debt interest.

  1. It is found, determined, and declared that the creation of the authority and the carrying out of its corporate purposes are in all respects for the benefit of the people of this state and that the authority is an institution of purely public charity performing an essential governmental function.
    1. The property of the authority is declared, and shall in all respects be considered, to be public property. Title to the authority's property shall be held by the authority only for the benefit of the public; and the use of such property pursuant to this article shall be and is declared to be for essential public and governmental purposes, that is, for the promotion of public general welfare in the matter of providing an adequate, dependable, and economical electric power supply in an effort to better the general condition of society in this state, which promotion is declared to be a public beneficence for the good of humanity and for the general improvement and happiness of society.
      1. It is recognized, however, that removal from local tax digests of the value of all property owned by the authority might impose an unfair burden on many taxpayers whose property is taxable. In the interest of weighing these benefits and concerns and arriving at an equitable policy regarding treatment of authority property, the General Assembly finds and declares that equity requires that the exemption presently applicable to the authority's property should remain in effect. However, the General Assembly also finds and declares that in the future the authority should rightfully make payments in lieu of taxes so that the authority may fulfill its good and public purposes without incidental harm to the state's local governments.
      2. With respect to tangible property owned by the authority and included in its project one and project two, as those projects are constituted as of March 25, 1980, or thereafter under the authority's power revenue bond resolution and general power revenue bond resolution, and supplemental resolutions thereto, the authority shall begin making payments in lieu of taxes in such manner and amounts as provided in this Code section in the earlier of (i) the first year after all of the bonds issued by the authority to finance each such respective project have been fully redeemed or (ii) the year 2020.
      3. With respect to tangible property acquired or constructed by the authority after March 25, 1980, and not included in its project one or project two, the authority shall begin making payments in lieu of taxes, in such manner and amounts as provided in this Code section, in the year 1981 or such later year as the authority first acquires or constructs such property.
      4. In each year in which the authority is required by this Code section to make payments in lieu of taxes, it shall file a return within the same time and in the same form and manner as public utilities. The taxing authorities shall assess the tangible property of the authority which is made subject by this Code section to payments in lieu of taxes in accordance with the law and procedures applicable to public utilities and shall apply to such assessments in each year in which any such payments are due the appropriate millage levies of the state and of the political subdivisions in which such property is located in order to arrive at the amounts of the respective payments in lieu of taxes. The authority shall be notified of the amounts of the payments in lieu of taxes due and shall pay such amounts to the state and respective political subdivisions within the time in which payments of taxes by public utilities are allowed or required.
  2. Except as specifically provided in this Code section for payments in lieu of taxes, all property of the authority, all income, obligations, and interest on the bonds and notes of the authority and all transfers of such property, bonds, or notes shall be and are declared to be exempt from taxation by the state or any of its political subdivisions.

(Ga. L. 1975, p. 107, § 6; Ga. L. 1980, p. 1128, § 1; Ga. L. 2014, p. 866, § 46/SB 340.)

The 2014 amendment, effective April 29, 2014, part of an Act to revise, modernize, and correct the Code, deleted the extra subsection (b) designation preceding subparagraph (2)(A).

JUDICIAL DECISIONS

Property of authority is public property and exempt from taxation. Thompson v. Municipal Elec. Auth., 238 Ga. 19, 231 S.E.2d 720 (1976).

Authority exempt from property transfer tax.

- The Municipal Electric Authority is exempt from the property transfer tax imposed by Ga. L. 1967, p. 788, as amended (see O.C.G.A. § 48-6-1). Thompson v. Municipal Elec. Auth., 238 Ga. 19, 231 S.E.2d 720 (1976).

Cited in Appling County v. Municipal Elec. Auth., 621 F.2d 1301 (5th Cir. 1980); Greensboro Lumber Co. v. Georgia Power Co., 643 F. Supp. 1345 (N.D. Ga. 1986).

RESEARCH REFERENCES

ALR.

- 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.

46-3-129. Contracts between authority and political subdivisions for use of projects and facilities of authority.

  1. The authority may contract with any political subdivision of this state which is authorized by Code Section 46-3-130 to make such contracts for the payment of such rates, tolls, fees, and charges as may be prescribed by the authority for the use by such subdivisions or the residents thereof of the services and facilities of the projects and facilities of the authority. Any such political subdivision shall have the right and power, by resolution of its governing body, to make such a contract; and the amounts contracted to be paid by such political subdivision to the authority under such a contract shall constitute general obligations of such political subdivision for the payment of which the full faith and credit of such political subdivision may be pledged to provide the funds required to fulfill all obligations arising under any such contract.
  2. Any such political subdivision which enters into such a contract pursuant to this article shall, annually in each and every fiscal year during the term of such contract, include in a general revenue or appropriation measure, whether or not any other items are included, sums sufficient to satisfy the payments required to be made in each year by such contract until all payments required under such contract have been paid in full.
  3. If for any reason a provision or appropriation pursuant to subsection (b) of this Code section is not made, then the fiscal officers of such political subdivision are authorized and directed to set up as an appropriation on their accounts in each fiscal year the amounts required to pay the obligations called for under any such contract. The amount of an appropriation made under this subsection in each fiscal year shall be due and payable and shall be expended for the purpose of paying and meeting the obligations provided under the terms and conditions of such contract; and such appropriation shall have the same legal status as if the contracting political subdivision had included the amount of the appropriation in its general revenue or appropriation measure. Such fiscal officers shall make such payment to the authority if for any reason such appropriation is not otherwise made.
  4. Any political subdivision which contracts with the authority under this article may obligate itself and its successors to use only those projects for which it has contracted and none other.

(Ga. L. 1975, p. 107, § 17.)

JUDICIAL DECISIONS

No unconstitutional delegation of legislative powers.

- The provisions of Ga. L. 1975, p. 107 and particularly Ga. L. 1975, p. 107, § 17 (see O.C.G.A. § 46-3-129), conferring power on the fiscal authorities to appropriate funds to pay the obligations under the contracts and to make payments of such funds, do not constitute an unconstitutional delegation of legislative powers. Thompson v. Municipal Elec. Auth., 238 Ga. 19, 231 S.E.2d 720 (1976).

Right granted by this section to promote public welfare not unconstitutional.

- The right granted by Ga. L. 1975, p. 107, § 17 (see O.C.G.A. § 46-3-129) to political subdivisions to give an exclusive privilege or monopoly to the authority to promote the public welfare does not violate Ga. Const. 1976, Art. III, Sec. VIII, Para. VIII (Ga. Const. 1983, Art. III, Sec. VI, Para. V). Thompson v. Municipal Elec. Auth., 238 Ga. 19, 231 S.E.2d 720 (1976).

Pledging full faith and credit and taxing power does not constitute unlawful taking of property.

- Under Ga. L. 1975, p. 107, the pledging of the full faith and credit and taxing power of the political subdivisions does not constitute a taking of property without due process of law. Thompson v. Municipal Elec. Auth., 238 Ga. 19, 231 S.E.2d 720 (1976).

Cited in Greensboro Lumber Co. v. Georgia Power Co., 643 F. Supp. 1345 (N.D. Ga. 1986).

46-3-130. Eligibility of political subdivisions to contract with authority.

The political subdivisions with which the authority shall be authorized to contract to provide an electric power supply pursuant to this article shall be those political subdivisions of this state which, on March 18, 1975, owned and operated an electric distribution system.

(Ga. L. 1975, p. 107, § 27.)

JUDICIAL DECISIONS

No special privileges provided to particular group of citizens.

- Ga. L. 1975, p. 107, § 27 (see O.C.G.A. § 46-3-130), limiting the operation of this part to those political subdivisions of the state which owned and operated an electric distribution system on the date this part became law, does not provide special privileges to a particular group of citizens to the exclusion of others in violation of Ga. Const. 1976, Art. I, Sec. II, Para. III (Ga. Const. 1983, Art. I, Sec. I, Para. II). Thompson v. Municipal Elec. Auth., 238 Ga. 19, 231 S.E.2d 720 (1976).

This section does not offend constitutional provisions requiring laws of general nature have uniform operation.

- Ga. L. 1975, p. 107, § 27 (see O.C.G.A. § 46-3-130), limiting the operation of this part to those political subdivisions of the state which owned and operated an electric distribution system on the date this part became law, does not offend Ga. Const. 1976, Art. I, Sec. II, Para. VII (Ga. Const. 1983, Art. III, Sec. VI, Para. IV), requiring that laws of a general nature shall have uniform operation throughout the state. Thompson v. Municipal Elec. Auth., 238 Ga. 19, 231 S.E.2d 720 (1976).

Cited in Appling County v. Municipal Elec. Auth., 621 F.2d 1301 (5th Cir. 1980).

46-3-131. Issuance of revenue bonds and bond anticipation notes in general.

  1. When the authority desires to issue revenue bonds as permitted by this article, the authority shall, prior to the adoption of a resolution authorizing the issuance of such bonds, enter into one or more contracts with no less than five political subdivisions which are authorized to contract with the authority in accordance with Code Section 46-3-130. All such contracts shall be in accordance with Code Section 46-3-129.
  2. The acquisition, construction, reconstruction, improvement, equipment, alteration, repair, or extension of any project, and the issuance, in anticipation of the collection of the revenues from such project, of bonds to provide funds to pay the cost thereof, may be authorized under this article by resolution of the authority. Unless otherwise provided therein, such resolution shall take effect immediately and need not be laid over or published or posted. The authority, in determining such cost, may include all costs and estimated costs of the issuance of the bonds; all engineering, inspection, fiscal, and legal expenses; the interest which it is estimated will accrue during the construction period and during such additional period as the authority may reasonably determine to be necessary for the placing of such project in operation on money borrowed, or which it is estimated will be borrowed pursuant to this article; and all costs included in the definition of "cost of project" as defined in Code Section 46-3-111. Such bonds may also be issued to pay off, refund, or refinance any outstanding bonds or other obligation of any nature owed by the authority, whether or not such bonds or other obligations shall then be subject to redemption; and the authority may provide for such arrangements as it may determine for the payment and security of the bonds being issued or for the payment and security of the bonds or other obligations to be paid off, refunded, or refinanced.
  3. Revenue bonds may be issued under this article in one or more series; may bear such date or dates; may mature at such time or times, not exceeding 50 years from their respective dates; may bear interest at such rate or rates, payable at such time or times; may be payable in such medium of payment at such place or places; may be in such denomination or denominations; may be in such form, either coupon or fully registered without coupons; may be issued in any specific amounts; may carry such registration, conversion, and exchangeability privileges; may be declared or become due before the maturity date thereof; may provide such call or redemption privileges; may have such rank or priority; and may contain such other terms, covenants, assignments, and conditions as the bond resolution authorizing the issuance of such bonds or any indenture or trust agreement may provide. The authority may sell such bonds in such manner, at such price or prices, and upon such terms and conditions as shall be determined by the authority.
  4. The bonds shall be signed by the chairman of the authority; the corporate seal of the authority shall be impressed, imprinted, or otherwise reproduced on the bonds; and the bonds shall be attested by the signature of the secretary-treasurer of the authority. The coupons shall be signed in such manner as may be directed by the authority. The signatures of the officers of the authority and the seal of the authority upon any bond, note, or other debt security issued by the authority may be by facsimile if the instrument is authenticated or countersigned by a trustee other than the authority itself or an officer or employee of the authority. All bonds or notes issued under authority of this article bearing signatures or facsimiles of the signatures of officers of the authority in office on the date of the signing thereof shall be valid and binding, notwithstanding that before the delivery thereof and payment therefor such officers whose signatures appear thereon shall have ceased to be officers of the authority. Pending the preparation of the definitive bonds, interim receipts, in such form and with such provisions as the authority may determine, may be issued to the purchasers of bonds to be issued under this article.
  5. Any bond resolution authorizing the issuance of bonds and any indenture or trust agreement entered into under this article to finance in whole or in part the acquisition, construction, reconstruction, improvement, equipment, alteration, repair, or extension of any project may contain covenants as to:
    1. The rates, fees, tolls, or charges to be charged for the services, facilities, and commodities of the project;
    2. The use and disposition of the revenue to be derived from the project;
    3. The creation and maintenance of reserves or sinking funds and the regulation, use, and disposition thereof, including debt service reserve; renewal and replacement or other capital improvement reserve, including reserves for the provision of fuel; and such other reserves as may be reasonably required by the authority for the operation of its projects and as may be authorized by the bond resolution or trust agreement or indenture pursuant to which the issuance of such bonds may be authorized;
    4. The purposes to which the proceeds of the sale of said bonds may be applied, and the use and disposition of such proceeds;
    5. Events of default and the rights and liabilities arising thereupon, the terms and conditions upon which bonds issued under this article shall become or may be declared due before maturity, and the terms and conditions upon which such declaration and its consequences may be waived;
    6. The issuance of other additional bonds or instruments payable from or a charge against the revenue of such project;
    7. The insurance to be carried thereon and the use and disposition of insurance proceeds;
    8. Books of account and the inspection and audit thereof;
    9. Limitations or restrictions on the power to lease or otherwise dispose of the project while any of the bonds or interest thereon remains outstanding and unpaid; and
    10. The operation and maintenance of the project and of the authority.
  6. The provisions of this article and of any bond resolution, indenture, or trust agreement entered into pursuant to this article shall be a contract with every holder of the bonds; and the duties of the authority under this article and under any such bond resolution, indenture, or trust agreement shall be enforceable by any bondholder by mandamus or other appropriate action or proceeding at law or in equity.
  7. The authority shall give notice to the district attorney of the Atlanta Judicial Circuit of its intention to issue its revenue bonds, setting forth the fact of service of such notice, the principal amount of bonds to be issued, the purpose for which the same are to be issued, whether the bonds are to be issued in separate series or installments from time to time, the interest rate or rates which such bonds are to bear, the amount of principal to be paid in each year during the life of the bonds or the method or formula by which such amounts shall be determined, the date by which all bonds are to be paid in full, and the security to be pledged to the payment of the bonds; provided, however, that such notice, in the discretion of the authority, in lieu of specifying the rate or rates of interest which the bonds are to bear, may state that the bonds when issued will bear interest at a rate not exceeding a maximum per annum rate of interest specified in the notice, or, in the event the bonds, or any series or installment thereof, are to bear different rates of interest for different maturity dates, may state that none of such rates will exceed the maximum rate specified in the notice; provided, further, that nothing in this subsection shall be construed as prohibiting or restricting the right of the authority to sell the bonds at a discount, even if in so doing the effective interest cost resulting therefrom would exceed the maximum per annum interest rate specified in the notice to the district attorney. Such notice shall be signed by the chairman, vice-chairman, or secretary-treasurer.
  8. Within 20 days after the date of service of the required notice, the district attorney shall prepare and file in the office of the clerk of the Superior Court of Fulton County a complaint directed to the Superior Court of Fulton County in the name of the state and against the authority, setting forth the fact of service of such notice, the amount of the bonds to be issued, for what purpose they are to be issued, whether the bonds are to be issued in separate series or installments from time to time, the interest rate or rates they are to bear or the maximum rate or rates of interest, the amount of principal and interest to be paid annually or the method or formula by which the amount of such payments shall be determined, and the date by which all bonds are to be paid in full. In addition, the district attorney shall obtain from the judge of the court an order requiring the authority by its proper officers to appear at such time and place as the judge may direct, either during a session of court or in chambers, within 20 days after the filing of the complaint, and show cause, if any, why the bonds should not be confirmed and validated. Such complaint and order shall be served upon the authority in the manner provided by law; and to such complaint the authority shall make sworn answer at or before the date set in the order for the hearing.
  9. Prior to the hearing of the cause, the clerk of the Superior Court of Fulton County shall publish in the official organ of Fulton County once during each of the two weeks immediately preceding the week in which the hearing is to be held a notice to the public that, on the day specified in the order providing for the hearing of the cause, the same will be heard.
  10. Within the time prescribed in the order or at such other time as he may fix, the judge of the superior court shall proceed to hear and determine all questions of law and of fact in the cause, including the question of whether the contractual obligations which are made a condition precedent to the issuance of such bonds by subsection (a) of this Code section have been properly incurred; and the judge shall render judgment on the cause. Any citizen of this state may become a party to the proceedings at or before the time set for the hearing. Any party who is dissatisfied with the judgment of the court confirming and validating the issuance of the bonds and the security therefor or refusing to confirm and validate the issuance of the bonds and the security therefor may appeal from the judgment under the procedure provided by Article 2 of Chapter 6 of Title 5. No appeal may be taken by any person who was not a party at the time the judgment appealed from was rendered.
  11. In the event no appeal is filed within 30 days after the date of the judgment of validation, or, if an appeal is filed, in the event the judgment is affirmed on appeal, the judgment of the superior court so confirming and validating the issuance of the bonds and the security therefor shall be forever conclusive upon the validity of the bonds and the security therefor.
  12. Bonds issued under this article shall bear a certificate of validation signed with the facsimile or manually executed signature of the clerk of the Superior Court of Fulton County stating the date on which the bonds were validated as provided in this Code section; and such entry shall be original evidence of the fact of judgment and shall be received as original evidence in any court in this state.

(m) The authority shall reimburse the district attorney for his actual costs of the case, if any. For every $5,000.00 in principal amount of bonds or portion thereof, there shall be payable to the clerk of the Superior Court of Fulton County the following fees for validation and confirmation:

First $500,000.00 ................................................$1.00 $501,000.00 - $2,500,000.00 ....................................... .25 All over $2,500,000.00 ............................................ .10

Any other law to the contrary notwithstanding, this article shall govern all civil claims, proceedings, and actions respecting debt of the authority evidenced by revenue bonds.

(Ga. L. 1975, p. 107, § 8; Ga. L. 1985, p. 149, § 46.)

Cross references.

- Revenue bonds generally, § 36-82-60 et seq.

Repeal of interest rate limitations, § 36-82-123.

Code Commission notes.

- Pursuant to § 28-9-5, in 1985, "bondholder" was substituted for "bond holder" in subsection (f).

Pursuant to § 28-9-5, in 1987, "Atlanta Judicial Circuit" was substituted for "Atlanta judicial circuit" in the first sentence of subsection (g).

JUDICIAL DECISIONS

Provisions of the Municipal Electric Authority of Georgia Act are not unlawful as being contrary to provisions of the Revenue Bond Law (see O.C.G.A. Art. 3, Ch. 82, T. 36). Thompson v. Municipal Elec. Auth., 238 Ga. 19, 231 S.E.2d 720 (1976).

Purpose of notice is to give information to the citizens of the political subdivisions contracting with the authority of the proceeding to validate the bonds so that they might resist the validation of the proposed bond issue. Thompson v. Municipal Elec. Auth., 238 Ga. 19, 231 S.E.2d 720 (1976).

Cited in Appling County v. Municipal Elec. Auth., 621 F.2d 1301 (5th Cir. 1980).

46-3-132. Validation of contracts for payments pledged as security for bonds.

  1. When payments which are made by political subdivisions pursuant to contracts entered into under subsection (a) of Code Section 46-3-131 are pledged as security for the payment of bonds sought to be validated, the petition for validation shall make party defendant the authority and shall also make parties defendant to such action every political subdivision which has contracted with the authority for the use of the facilities, commodities, and services of the project for which bonds shall be sought to be validated and issued. In addition, every other party, whether public or private, contracting with the authority in any manner with relation to the operation of such project, and particularly with relation to any common ownership of such project or to the supplying of electric energy to the authority or the taking or purchasing of electric energy from the project, shall be made parties defendant.
  2. All such parties defendant shall be served and shall be required to show cause, if any exists, why such contracts and the terms and conditions thereof should not be inquired into by the court and the validity of the terms thereof determined and the matters and conditions imposed on the parties to such contracts and all such undertakings thereof adjudicated to be valid and binding on the parties thereto.
  3. Notice of such proceedings shall be included in the notice of validation hearing required by Code Section 46-3-131 to be issued and published by the clerk of the Superior Court of Fulton County. In addition to such notice required to be published in Fulton County, such notice shall also be published in the newspaper in which sheriff's advertisements are published, once a week during each of the two weeks immediately preceding the week of the hearing, in each county in which any portion of any of the defendant political subdivisions lie.
  4. Any citizen resident of this state may, at or before the time set for the validation hearing, intervene in the validation proceedings conducted in the Superior Court of Fulton County pursuant to Code Section 46-3-131 and may assert any ground or objection to the validity and binding effect of such contract on his own behalf and on behalf of any political subdivision and of all citizens, residents, and property owners of the state.
  5. No appeal may be taken by any person who was not a party at the time the judgment appealed from was rendered.
  6. An adjudication as to the validity of any such contract which adjudication is unexcepted to within 30 days after the date of the judgment of validation or, if an appeal is filed, which adjudication is confirmed on appeal shall be forever conclusive and binding upon such political subdivisions and the resident citizens and property owners of this state.

(Ga. L. 1975, p. 107, § 9.)

Cross references.

- Class actions, § 9-11-23.

Intervention, § 9-11-24.

JUDICIAL DECISIONS

Purpose of notice is to give information to the citizens of the political subdivisions contracting with the authority of the proceeding to validate the bonds so that they might resist the validation of the proposed bond issue. Thompson v. Municipal Elec. Auth., 238 Ga. 19, 231 S.E.2d 720 (1976).

46-3-133. Failure of district attorney to pursue judicial validation of bonds.

In all cases where the authority has adopted a resolution for the issuance of revenue bonds, and where notice has been duly served upon the district attorney for the purpose of securing a judicial validation of such bonds and the security therefor, and where, in such case, there has been a failure on the part of such district attorney or other officer to proceed within the time prescribed by this article, it shall be competent for the authority to represent such facts in writing to the court and to represent further that such failure has been without fault on the part of the authority. In such case, the Superior Court of Fulton County shall have power and authority to inquire into the facts; and, upon being satisfied that such failure has not arisen from any fault or neglect on the part of the authority, it shall be the duty of the court to pass an order directing such district attorney to proceed within ten days to file a complaint as authorized by this article. Thereafter, the proceedings shall be held in the same manner as would have been followed had such petition been duly and promptly filed in the first instance.

(Ga. L. 1975, p. 107, § 10.)

46-3-134. Bonds as legal investments; depositing bonds with public officers and bodies of state.

The bonds authorized by this article shall be securities in which:

  1. All public officers and bodies of this state;
  2. All political subdivisions of this state;
  3. All insurance companies and associations, and other persons carrying on an insurance business;
  4. All banks, bankers, trust companies, saving banks, and savings associations, including savings and loan associations, building and loan associations, investment companies, and other persons carrying on a banking business;
  5. All administrators, guardians, executors, trustees, and other fiduciaries; and
  6. All other persons whatsoever who are authorized to invest in bonds or other obligations of the state

    may properly and legally invest funds, including capital in their control or belonging to them. Such bonds shall also be securities which may be deposited with and shall be received by all public officers and bodies of this state and its political subdivisions for any purpose for which deposit of the bonds or other obligations of this state is authorized.

(Ga. L. 1975, p. 107, § 16.)

46-3-135. Pledge of authority's revenues and earnings to payment of principal of and interest on bonds; setting aside of pledged revenues and earnings into sinking funds.

  1. All or any part of the gross or net revenues and earnings derived from any particular project and any and all revenues and earnings received by the authority, regardless of whether such revenues and earnings were produced by a particular project for which bonds have been issued, may be pledged by the authority to the payment of the principal of and interest on revenue bonds of the authority as may be provided in any resolution authorizing the issuance of such bonds or in any trust instrument pertaining to such bonds.
  2. Such funds so pledged, from whatever source received, may include funds received from one or more or all sources and may be set aside at regular intervals into sinking funds for which provision may be made in any such resolution or trust instrument, which sinking funds may be pledged to and charged with the payment of:
    1. The interest upon such revenue bonds as such interest shall become due;
    2. The principal of the bonds as the same shall mature;
    3. The necessary charges of any trustee, paying agent, or registrar for such bonds; and
    4. Any premium upon bonds retired upon call or purchase.
  3. The use and disposition of any sinking fund may be subject to regulations for which provision may be made in the resolution authorizing the issuance of the bonds or in the trust instrument or indenture securing the payment of the same.

(Ga. L. 1975, p. 107, § 19.)

JUDICIAL DECISIONS

Cited in Greensboro Lumber Co. v. Georgia Power Co., 643 F. Supp. 1345 (N.D. Ga. 1986), aff'd, 844 F.2d 1538 (11th Cir. 1988).

RESEARCH REFERENCES

ALR.

- Disposition of revenues from operation of revenue-producing enterprise owned by municipal corporation, 103 A.L.R. 579; 165 A.L.R. 854.

46-3-136. Securing of bonds by trust agreement or indenture.

  1. In the discretion of the authority, any issue of revenue bonds may be secured by a trust agreement or indenture made by the authority with a corporate trustee, which may be any trust company or bank having the powers of a trust company within or without this state. Such trust agreement or indenture may pledge or assign all revenue, receipts, and earnings to be received by the authority and any proceeds which may be derived from the disposition of any real or personal property of the authority or proceeds of insurance carried thereon.
  2. The resolution providing for the issuance of revenue bonds and such trust agreement or indenture may contain provisions for protecting and enforcing the rights and remedies of the bond owners, including the right of appointment of a receiver upon default in the payment of any principal or interest obligation and the right of any receiver or trustee to enforce collection of any rates, fees, tolls, charges, or revenues for the use of the services or facilities of the project necessary to pay all costs of operation and all reserves provided for, the principal of and interest on all bonds in the issue, all costs of collection, and all other costs reasonably necessary to accomplish the collection of such sums in the event of any default of the authority.
  3. Such resolution, trust agreement, or indenture may include covenants setting forth the duties of the authority regarding the acquisition of property for and the construction of the project and regarding the custody, safeguarding, and application of all funds of the authority, including any proceeds derived from the disposition of any real or personal property of the authority or proceeds of insurance carried thereon. In addition, such resolution, trust agreement, or indenture may include covenants providing for the operation, maintenance, repair, and insurance of the project and may contain provisions concerning the conditions, if any, upon which additional bonds may be issued.
  4. Such resolution, trust agreement, or indenture may set forth the rights and remedies of the bond owners and of the trustee; may restrict the individual right of action of any bond owner in such manner as is customary in securing bonds and debentures of corporations; and may contain such other provisions as the authority may deem reasonable and proper for the security of the bond owners.
  5. All expenses incurred in carrying out any trust agreement or indenture under this Code section may be treated as a part of the cost of maintenance, operation, and repair of the project affected by such trust agreement or indenture.

(Ga. L. 1975, p. 107, § 20; Ga. L. 1992, p. 6, § 46.)

46-3-137. Application of bond proceeds to cost of projects; issuance of additional bonds to remedy deficit in proceeds from bond issue; application of surplus proceeds.

  1. Proceeds of the bonds issued under authority of this article shall be used solely for the payment of the cost of projects and shall be disbursed upon requisition or order of such person and under such restrictions as the resolution authorizing the issuance of such bonds or the trust agreement or indenture may provide.
  2. If the proceeds of such bonds, including all series or installments of such issue, by error of calculation or otherwise, are less than the cost of projects, then, unless otherwise provided in the resolution authorizing the issuance of the bonds or in the trust agreement or indenture, additional bonds may in like manner be issued, subject to the requirements of subsection (a) of Code Section 46-3-131 to provide the amount of such deficit. Unless otherwise provided in the resolution authorizing the issuance of the bonds or in the trust agreement or indenture, such additional bonds shall be deemed to be of the same issue and shall be entitled to payment from the same fund, without preference or priority, as the bonds first issued for the same purpose.
  3. If the proceeds of the bonds of any issue exceed the amount required for the purpose for which such bonds are issued, the surplus shall be paid into the fund provided for the payment of principal and interest of such bonds.
  4. In the discretion of the authority, revenue bonds of a single issue or series or installment of such issue may be issued for the purpose of paying the cost of any one or more projects.

(Ga. L. 1975, p. 107, § 21.)

46-3-138. Mutilated, lost, stolen, or destroyed bonds and coupons.

  1. If any bond becomes mutilated or is lost, stolen, or destroyed, the authority may execute and deliver a new bond of like date of issue, maturity date, principal amount, and interest rate per annum as the bond so mutilated, lost, stolen, or destroyed, which new bond shall have attached thereto coupons corresponding in all respects to those, if any, on the bond mutilated, lost, stolen, or destroyed, provided that:
    1. In the case of any mutilated bond, such bond together with all unmatured coupons appertaining thereto is first surrendered to the authority;
    2. In the case of any lost, stolen, or destroyed bond, there is first furnished evidence of such loss, theft, or destruction satisfactory to the authority, together with indemnity satisfactory to the authority;
    3. All other reasonable requirements of the authority are complied with; and
    4. Expenses in connection with such transaction are paid.
  2. In the event any coupon is mutilated, lost, stolen, or destroyed, the authority may issue a duplicate coupon upon the same terms and conditions as those provided for the replacement of mutilated, lost, stolen, or destroyed bonds.
  3. Any bonds or coupon surrendered for exchange shall be canceled.
  4. The authority shall be authorized to print the new bond with the validation certificate bearing the facsimile signature of the clerk of the superior court then in office, and such certificate shall have the same force and effect as in the first instance. All responsibility with respect to the issuance of any such new bonds shall be with the authority and not with such clerk; and such clerk shall have no liability in the event an overissuance occurs.

(Ga. L. 1975, p. 107, § 11.)

46-3-139. Interest on bonds.

Interest shall cease to accrue on any bond on the date that such bond becomes due for payment if said payment is made or duly provided for, but liability for such bond and for the accrued interest thereon shall continue until such bond is 20 years overdue for payment. At that time, unless demand for payment has been made, such obligation shall be extinguished and shall be deemed no longer outstanding.

(Ga. L. 1975, p. 107, § 11.)

46-3-140. Cancellation of evidences of indebtedness and interest coupons.

Unless otherwise directed by the authority, every evidence of indebtedness and interest coupon paid or otherwise retired shall forthwith be marked "canceled" and shall be delivered by the paying agent making payment thereof to the authority, whereupon the evidence of indebtedness or interest coupon shall be destroyed and a certificate of destruction shall be filed in the records of the authority.

(Ga. L. 1975, p. 107, § 11.)

46-3-141. Records of evidences of indebtedness issued.

The fiscal officer of the authority or his agent shall maintain records containing a full and correct description of each evidence of indebtedness issued, identifying it and showing its date, issue, amount, interest rate, payment dates, payments made, registration, cancellation, destruction, and every other relevant transaction.

(Ga. L. 1975, p. 107, § 11.)

46-3-142. Paying agents for bonds.

The authority may appoint one or more paying agents for each issue or series or installment of bonds. Every such paying agent shall be an incorporated bank or trust company authorized by the laws of the United States or of the state in which it is located to do a banking or trust business. The authority may make such provisions respecting paying agents as it deems necessary or useful and may enter into a contract with any paying agents containing such terms, including its compensation, and such conditions in regard to the paying agents as the authority deems necessary or useful.

(Ga. L. 1975, p. 107, § 11.)

46-3-143. Bond anticipation notes.

  1. The authority shall have the power and is authorized, whenever revenue bonds of the authority have been validated as provided in Code Section 46-3-131, to issue from time to time its negotiable notes in anticipation of the issuance of such bonds as validated and to renew from time to time any such notes by the issuance of new notes, regardless of whether the notes to be renewed have matured. The authority may issue notes only to provide funds which would otherwise be provided by the issuance of the bonds as validated. The notes may be authorized, sold, executed, and delivered in the same manner as bonds.
  2. Any resolution authorizing notes of the authority or any issue thereof may contain any provisions which the authority is authorized to include in any resolution authorizing bonds of the authority or any issue thereof; and the authority may include in any notes any terms, covenants, or conditions which it is authorized to include in any bonds.
  3. All notes shall be general obligations of the authority, payable out of any of its funds or revenues, subject only to any contractual rights of the holders of any of its notes or other obligations then outstanding, provided that there may be specially pledged to the payment of such notes the proceeds to be derived from the issuance of the validated bonds in anticipation of the issuance of which the notes have been issued.
  4. Validation of such bonds shall be a condition precedent to the issuance of such notes but it shall not be required that such notes be judicially validated.
  5. Bond anticipation notes shall not be issued in an amount exceeding the par value of the bonds in anticipation of which they are to be issued.

(Ga. L. 1975, p. 107, § 22; Ga. L. 1982, p. 3, § 46.)

JUDICIAL DECISIONS

Provisions of the Municipal Electric Authority Act not unlawful as being contrary to provisions of the Revenue Bond Law (see O.C.G.A. Art. 3, Ch. 82, T. 36). Thompson v. Municipal Elec. Auth., 238 Ga. 19, 231 S.E.2d 720 (1976).

46-3-144. Negotiability of bonds, notes, and other evidences of debt.

Notwithstanding any other law to the contrary, every evidence of indebtedness issued under this article shall have all the rights and incidences of negotiable instruments, subject to provisions for registration.

(Ga. L. 1975, p. 107, § 15.)

46-3-145. Liability of members of authority on bonds and notes; obligations of state and political subdivisions in regard to issued bonds or notes; requirement as to recital on face of bonds and notes.

  1. Neither the members of the authority nor any person executing bonds or notes on behalf of the authority shall be personally liable thereon by reason of the issuance thereof.
  2. Neither the revenue bonds or notes issued under this chapter nor the instruments evidencing the obligations which constitute the security therefor shall constitute a debt of, a loan by, or a pledge of the faith and credit of the State of Georgia or of any political subdivision thereof. Rather, such bonds and notes shall be payable from the revenues of the authority as provided in the resolutions, trust agreements, or indentures authorizing or securing the issuance and payment of such bonds or notes. The issuance of such bonds or notes shall not obligate the state or any political subdivision thereof to levy or pledge any form of taxation whatever for the payment thereof. No owner of any such bond or note, and no receiver or trustee in connection therewith, shall have the right to enforce the payment of the bond or note against any property of the state or of any political subdivision thereof; nor shall any such bond or note constitute a charge, lien, or encumbrance, whether legal or equitable, upon any such property.
  3. All such bonds and notes shall contain on their face a recital setting forth the complete immunity of the state and any such political subdivisions from liability thereon, which recital shall contain substantially the foregoing provisions of this Code section.

(Ga. L. 1975, p. 107, § 13; Ga. L. 1982, p. 3, § 46.)

JUDICIAL DECISIONS

State authorities exempt from certain restrictions.

- State authorities, lawfully created, are not subject to the restrictions of Ga. Const. 1976, Art. IX, Sec. VII, Para. I and Art. IX, Sec. VIII, Para. I (Ga. Const. 1983, Art. IX, Sec. V, Para. I, IV, V; Art. IX, Sec. VI, Para. I, II; Art. XI, Sec. I, Para. IV). Thompson v. Municipal Elec. Auth., 238 Ga. 19, 231 S.E.2d 720 (1976).

RESEARCH REFERENCES

ALR.

- Suit against railroad owned by or in which interest is held by United States or state, 8 A.L.R. 995.

Remedy available against invalid judgment in favor of United States, state, or other governmental unit immune to suit, 163 A.L.R. 244.

Validity and construction of legislation conferring personal immunity on public officers or employees for acts in course of duty, 163 A.L.R. 1435.

46-3-146. Preservation of interests and rights of owners of bonds and notes.

While any of the bonds or notes issued by the authority remain outstanding, the powers, duties, or existence of the authority or of its officers, employees, or agents shall not be diminished, impaired, or affected in any manner which will affect adversely the interest and rights of the owners of such bonds or notes; and no other authority, instrumentality, or body will be created or empowered to compete with the authority so as to affect adversely the interests and rights of the owners of such bonds or notes; nor will the state itself so compete with the authority. This article shall be for the benefit of the state, the authority, and every owner of the authority's bonds and notes and, upon and after the issuance of bonds or notes under this article, shall constitute an irrevocable contract by the state with the owners of such bonds and notes.

(Ga. L. 1975, p. 107, § 30.)

JUDICIAL DECISIONS

No unconstitutional delegation of legislative powers in this section.

- Ga. L. 1975, p. 107, § 30 (see O.C.G.A. § 46-3-146), limiting the power of the state to adversely affect the interests of the owners of the authority's bonds and notes, does not constitute unconstitutional delegation of legislative powers in violation of Ga. Const. 1976, Art. III, Sec. I, Para. I (Ga. Const. 1983, Art. I, Sec. I, Para. I), because it does not limit the right of the General Assembly to legislate except to prevent legislation which will impair the contracts with the bond owners, and this is consistent with the Constitution. Thompson v. Municipal Elec. Auth., 238 Ga. 19, 231 S.E.2d 720 (1976).

Constitutional limits on power of state to adversely affect interests of owners of bonds and notes.

- Ga. L. 1975, p. 107, § 30 (see O.C.G.A. § 46-3-146), limiting the power of the state to adversely affect the interests of the owners of the authority's bonds and notes, is not in violation of Ga. Const. 1976, Art. III, Sec. VII, Para. IV (Ga. Const. 1983, Art. III, Sec. V, Para. III), which prohibits an act from containing matter different from what is expressed in the title. Thompson v. Municipal Elec. Auth., 238 Ga. 19, 231 S.E.2d 720 (1976).

46-3-147. Appointment of receiver for authority for default on bonds; duties of receiver; termination of receivership; jurisdiction of court over receiver.

  1. If the authority defaults on the payment of the principal or interest on any of the revenue bonds after the same become due, whether at maturity or upon call for redemption, and such default continues for a period of 30 days, or if the authority or its officers, agents, or employees fail or refuse to comply with the essential provisions of this article or default in any material respect on any agreement made with the holders of the revenue bonds, any holders of revenue bonds or a trustee therefor shall have the right to apply in an appropriate judicial proceeding to the Superior Court of Fulton County for the appointment of a receiver of the undertaking, regardless of whether all revenue bonds have been declared due and payable, and regardless of whether such holder or trustee therefor is seeking or has sought to enforce any other right or exercise any remedy in connection with such revenue bonds. Upon such application, the court, if it deems such action necessary for the protection of the bondholders, may appoint a receiver for the undertaking, provided that such appointment shall be mandatory if the application is made by the holders of 25 percent in principal amount of such revenue bonds then outstanding, or by any trustee for holders of such revenue bonds in such principal amount.
  2. A receiver appointed pursuant to subsection (a) of this Code section shall forthwith, directly or by his agents and attorneys, enter into and upon and take possession of the project or of such portion thereof or interest therein as is owned by the authority. If the court so directs, the receiver may wholly exclude from the project the authority, its officers, agents, and employees, and all persons claiming under them. Upon taking possession of the project, the receiver shall have, hold, use, operate, manage, and control the same and each and every part thereof and, in the name of the authority or otherwise, as the receiver may deem best, shall exercise all the rights and powers of the authority with respect to the undertaking as the authority itself might do. The receiver shall maintain, restore, insure, and keep insured the project or such portion or interest therein as is owned by the authority; from time to time shall make all such necessary or proper repairs as the receiver may deem expedient; shall establish and maintain rates and collect such fees, tolls, and other charges in connection with the project as the receiver may deem necessary or proper and reasonable; and shall collect and receive all revenues, shall deposit the same in a separate account, and shall apply such revenues so collected and received in such manner as the court shall direct, provided that the duties of the receiver as described in this subsection shall be performed in a manner consistent with any and all existing contractual arrangements to which the authority may be a party; and the powers of the receiver shall be no greater than the powers of the authority.
  3. Whenever all amounts due upon the revenue bonds and interest thereon have been cured and made good; and whenever a similar cure and making good has been effected in regard to any other notes, bonds, or other obligations, and interest thereon, which constitute a charge, lien, or encumbrance on the revenues of the project under any of the terms of any covenants or agreements with holders of revenue bonds; then, if it appears to the court that no default is imminent, the court shall direct the receiver to surrender possession of the project to the authority, provided that the same right of the holders of the revenue bonds to secure the appointment of a receiver as is provided in subsection (a) of this Code section shall exist upon any subsequent default.
  4. A receiver shall, in the performance of the powers conferred upon him by this Code section, act under the direction and supervision of the court making such appointment, shall at all times be subject to the orders and decrees of such court, and may be removed thereby. Nothing contained in this Code section shall limit or restrict the jurisdiction of such court to enter such other and further orders and decrees as the court may deem necessary or appropriate for the exercise by the receiver of any functions specifically set forth in this Code section.

(Ga. L. 1975, p. 107, § 14; Ga. L. 1982, p. 3, § 46.)

46-3-148. Fixing, revising, and collecting fees, tolls, and charges for use of projects; application of revenues; time of payment; indemnity by political subdivisions; enforcement; assignment of payments; issuing resolutions governing disposition of revenues.

  1. For the purpose of earning sufficient revenue to make possible the financing of the construction of the projects of the authority with revenue bonds, the authority is authorized and empowered to fix and revise rates and collect fees, tolls, and charges on each project which it causes to be acquired or constructed. Such rates, fees, tolls, and charges to be paid for the use of the facilities or services of such projects shall be so fixed and adjusted from time to time as to provide a fund which, together with other revenue, if any, of such projects or of the authority, will be sufficient:
    1. To pay:
      1. The costs of operating, maintaining, and repairing the projects, including reserves for insurance and extraordinary repairs, reserves for fuel, and other reserves required by the resolution, trust agreement, or indenture pertaining to such bonds and the issuance thereof, unless such costs shall be otherwise provided for;
      2. The costs of operating and conducting the business of the authority, including salaries; fees for professional services, including legal, engineering, and others; and all expenses properly relating to the conduct of the affairs of the authority;
      3. The costs of power, whether generated by the authority or acquired from others; and
      4. All other costs associated with the operation of the authority and its projects and facilities;
    2. To pay the principal of and interest on such revenue bonds as the same become due, including all premiums, if any, the proceeds of which shall have been or will be used to pay the cost of such projects, which cost shall include all elements of cost authorized by this article, including acquisition of property, whether real or personal, and any interest in property; clearing and preparing land for the purposes of this article; architectural, engineering, financial, and legal services; construction of projects authorized by this article; administrative expenses; funds for initiating the operation of the project; and interest prior to and during construction and during such period of time thereafter as may be reasonably determined by the authority to be necessary to put the project into operation;
    3. To comply with any sinking fund requirements contained in the resolution, trust agreement, or indenture pertaining to the issuance of and security for such bonds;
    4. To perform fully all provisions of such resolution, trust agreement, or indenture relating to the issuance of or security for such bonds to the payment of which such revenue is pledged;
    5. To accumulate any excess income which may be required by the purchasers of such bonds or may be dictated by the requirements of such resolution, trust agreement, or indenture or by the requirements of achieving ready marketability of and low interest rates on such bonds; and
    6. To pay expenses in connection with such bond issue or such projects, including, but not limited to, trustees' and fiscal fees.
  2. The rates, fees, tolls, and charges authorized by subsection (a) of this Code section shall be payable at such intervals as may be agreed upon and set forth in the contract providing therefor. Any such contract may provide for the commencement of payments, not necessarily based directly on rates, to the authority prior to the completion of the undertaking by the authority of any such project; may provide for the making of payments during such times as such projects may be partially or wholly not in use, whether or not any such project has been completed, is then operable, or is operating; and may provide that such payments shall not be subject to any reduction, by offset or otherwise, and shall not be conditioned upon the performance or nonperformance by any party of any agreement.
  3. Such contract may obligate the political subdivision to indemnify and save harmless the authority from any and all damage to persons and property occurring on or by reason of the project, and may also obligate the political subdivision to undertake, at the expense of the political subdivision, the defense of any action brought against the authority by reason of injury or damages to persons or property occurring on or by reason of the project.
  4. In the event of any failure or refusal on the part of the political subdivision to perform punctually any covenant or obligation contained in any such contract, the authority may enforce performance by any legal or equitable process, including specific performance.
  5. Any payments due or to become due to the authority pursuant to any such contract may be assigned by the authority to a trustee or paying agent as may be required by the terms of the resolution, trust agreement, or indenture relating to the issuance of and security for such bonds.
  6. The use and disposition of the authority's revenue shall be subject to the provisions of the resolution authorizing the issuance of such bonds or of the trust agreement or indenture, if any, securing the same.

(Ga. L. 1975, p. 107, § 18; Ga. L. 1982, p. 3, § 46.)

RESEARCH REFERENCES

ALR.

- Disposition of revenues from operation of revenue-producing enterprise owned by municipal corporation, 103 A.L.R. 579; 165 A.L.R. 854.

Public utility's right to recover cost of nuclear power plants abandoned before completion, 83 A.L.R.4th 183.

46-3-149. Status of authority's funds received from revenue bonds, fees, tolls, charges, gifts, grants, or other contributions as trust funds; lien of bond owners on funds.

All funds received pursuant to authority of this article, whether as proceeds from the sale of revenue bonds or as revenues, fees, tolls, charges, or other earnings or as gifts, grants, or other contributions, shall be deemed to be trust funds to be held and applied solely as provided in this article. The bond owners entitled to receive the benefits of such funds shall have a lien on all such funds until applied as provided in any such resolution, trust agreement, or indenture of the authority.

(Ga. L. 1975, p. 107, § 23.)

46-3-150. Audits of authority and of funds established in connection with its debt.

The authority, together with all funds established in connection with its debt, shall be audited no less frequently than annually by an independent certified public accountant to be selected by the authority. Copies of such audit shall be available upon request to interested parties, including, but without limitation, the holders of the authority's bonds and all parties contracting with the authority.

(Ga. L. 1975, p. 107, § 11.)

46-3-151. Venue of actions.

Any action to protect or enforce any rights under this article brought in the courts of this state shall be brought in the Superior Court of Fulton County. Any action pertaining to validation of the bonds issued under this article and pertaining to validation of the contracts constituting security for bonds shall also be brought in the Superior Court of Fulton County. That court shall have exclusive original jurisdiction of any action referred to in this Code section, provided that any action on any contractual obligation brought against the authority by any political subdivision contracting with the authority may be brought either in the county containing all or the largest part of the area of the political subdivision involved or in Fulton County, at the option of the party bringing the action.

(Ga. L. 1975, p. 107, § 24.)

46-3-152. Jurisdiction of commission over rates, services, and practices of authority.

The rates, services, and practices relating to the generation, transmission, and sale by the authority of power to be generated from the projects authorized by this article shall not be subject to the provisions of the Georgia Public Service Commission law nor to regulation by nor jurisdiction of the commission.

(Ga. L. 1975, p. 107, § 26.)

JUDICIAL DECISIONS

The Public Service Commission's interpretations of the Municipal Electric Authority of Georgia (MEAG) Act are not entitled to great deference and are reviewed de novo. Municipal Elec. Auth. v. Georgia Pub. Serv. Comm'n, 241 Ga. App. 237, 525 S.E.2d 399 (1999).

Cited in Greensboro Lumber Co. v. Georgia Power Co., 643 F. Supp. 1345 (N.D. Ga. 1986), aff'd, 844 F.2d 1538 (11th Cir. 1988).

RESEARCH REFERENCES

ALR.

- Applicability of public utility acts to municipal corporations owning or operating a public utility, 10 A.L.R. 1432; 18 A.L.R. 946.

Public utility's right to recover cost of nuclear power plants abandoned before completion, 83 A.L.R.4th 183.

46-3-153. Applicability of other laws to meetings and records of authority.

Meetings of the authority shall be subject to Chapter 14 of Title 50. All records of the authority shall be subject to Article 4 of Chapter 18 of Title 50.

(Ga. L. 1975, p. 107, § 25.)

46-3-154. Supplemental nature of powers conferred by article.

The provisions of this article shall be regarded as supplementary and additional to and cumulative of powers conferred by other laws and shall not be regarded as being in derogation of any powers conferred by any other law.

(Ga. L. 1975, p. 107, § 29.)

46-3-155. Construction of article.

This article, being for the welfare of the state and its inhabitants, shall be liberally construed to effect the purposes hereof.

(Ga. L. 1975, p. 107, § 28.)

JUDICIAL DECISIONS

Cited in Municipal Elec. Auth. v. Georgia Pub. Serv. Comm'n, 241 Ga. App. 237, 525 S.E.2d 399 (1999).

ARTICLE 4 ELECTRIC MEMBERSHIP CORPORATIONS AND FOREIGN ELECTRIC COOPERATIVES

JUDICIAL DECISIONS

Construction of article to promote competition.

- The supreme court will construe the economic aspects of the Georgia Electric Membership Corporation Act, O.C.G.A. § 46-3-170 et seq., in a manner that will broaden competition. Washington Elec. Membership Corp. v. Avant, 256 Ga. 340, 348 S.E.2d 647 (1986).

Members disqualified from serving as jurors in prosecution involving corporation.

- Members of an electric membership corporation were disqualified from serving as jurors in a prosecution for criminal damage to property owned by the corporation, even though the corporation was not listed as the actual prosecutor. Lowman v. State, 197 Ga. App. 556, 398 S.E.2d 832 (1990), overruled on other grounds by Willis v. State, 2018 Ga. LEXIS 685 (Ga. 2018).

Cited in Georgia Power Co. v. Altamaha Elec. Membership Corp., 221 Ga. 521, 145 S.E.2d 691 (1965).

PART 1 G ENERAL PROVISIONS

46-3-170. Short title.

This article may be cited as the "Georgia Electric Membership Corporation Act."

(Ga. L. 1937, p. 644, § 1; Code 1933, § 34C-101, enacted by Ga. L. 1981, p. 1587, § 1.)

Cross references.

- Nonprofit corporations generally, Ch. 3, T. 14.

Extension of jurisdiction of commission over electric membership corporations to same extent as commission has jurisdiction over electric light and power companies, § 46-3-12.

JUDICIAL DECISIONS

Nonprofit electric corporations not excluded from class of electric companies generally.

- The word "profit" as employed both in Ga. Const. 1976, Art. VII, Sec. I, Para. IV (Ga. Const. 1983, Art. VII, Sec. II, Para. I-IV) and the Rural Electrification Act (7 U.S.C. § 901 et seq.) did not, when construed in pari materia with former Code 1933, § 94-1101 (see O.C.G.A. § 46-1-2) and Ga. L. 1937, p. 644 (see O.C.G.A. Art. 4, Ch. 3, T. 46), exclude the electric corporations created under that Act from the class of electric companies engaged in the business of generating and transmitting electricity. Lamar Elec. Membership Corp. v. Carroll, 89 Ga. App. 440, 79 S.E.2d 832 (1953).

Liability for punitive damages.

- Power corporation failed to show that it was a public service corporation and, accordingly, shielded from liability for punitive damages as a matter of law; an electrical membership, under the Georgia Electric Membership Corporation Act, is vested with the power to sue and be sued and is provided with no express statutory immunity from liability for punitive damages. Oglethorpe Power Corp. v. Sheriff, 210 Ga. App. 299, 436 S.E.2d 14 (1993).

Mandamus unavailable for nominee seeking to serve on electric membership corporation.

- Trial court erred by granting a nominee's writ of mandamus because under O.C.G.A. § 9-6-23, mandamus did not lie to enforce purely private contract rights and the nominee's efforts to be qualified as a person to sit on the board of an electric membership corporation was a private right as board members were not public officers within the meaning of O.C.G.A. § 9-6-20. Rigby v. Boatright, 294 Ga. 253, 751 S.E.2d 851 (2013).

Cited in Troup County Elec. Membership Corp. v. Georgia Power Co., 229 Ga. 348, 191 S.E.2d 33 (1972); Greensboro Lumber Co. v. Georgia Power Co., 643 F. Supp. 1345 (N.D. Ga. 1986), aff'd, 844 F.2d 1538 (11th Cir. 1988).

46-3-171. Definitions.

As used in this article, the term:

  1. "Address" means a complete mailing address, including, whenever practicable, street and number or building and floor.
  2. "Articles of incorporation" means the original or restated articles of incorporation or articles of consolidation and all the amendments thereto, including articles of merger, and also includes what have been designated by the laws of this state prior to July 1, 1981, as charters.

    (2.1) "Broadband affiliate" means any person which directly or indirectly controls, is controlled by, or is under common control of one or more electric membership corporations and which is used to provide broadband services.

    (2.2) "Broadband facilities" means any facilities and equipment utilized to provide or support broadband services.

    (2.3) "Broadband services" means a wired or wireless service that consists of the capability to transmit data at a rate not less than 200 kilobits per second to and from end users and in combination with such service provides:

    1. Access to the internet;
    2. Computer processing, information storage, or protocol conversion; or
    3. Any application or information content to be provided over or through broadband.

      Such term shall include any broadband facilities and equipment associated with providing such a service.

    (2.4) "Communications service provider" means a provider of cable service as defined in 47 U.S.C. Section 522(6), telecommunications service as defined in 47 U.S.C. Section 153(53), or information service as defined in 47 U.S.C. Section 153(24), as each such term existed on January 1, 2019.

    (2.5) "Electric easement" means a right of way or an easement, whether acquired by eminent domain, prescription, or conveyance, that is used or may be used for transmitting, distributing, or providing electrical energy and services by utilizing aboveground or underground wires, cables, lines, or similar facilities.

  3. "Electric membership corporation" or "EMC" means an electric membership corporation organized under this article or any prior electric membership corporation law of this state, or a corporation which elected, in accordance with the provisions thereof, to be governed by Ga. L. 1937, p. 644, the "Electric Membership Corporation Act."
  4. "Federal agency" includes the United States of America and any department, administration, commission, board, bureau, office, establishment, agency, authority, or instrumentality thereof.
  5. "Foreign electric cooperative" means a cooperative, nonprofit membership corporation organized under laws other than the laws of this state for the same or similar purposes for which an electric membership corporation may be organized under this article.

    (5.1) "Gas activities" shall have the same meaning as provided for in Code Section 46-4-152.

    (5.2) "Gas affiliate" shall have the same meaning as the term "EMC gas affiliate" provided in Code Section 46-4-152.

  6. "Insolvent" means that an electric membership corporation is unable to pay its debts as they become due in the usual course of its business or that it has liabilities in excess of assets.
  7. "Member" means a person that has met the requirements and conditions of membership in an electric membership corporation which are set forth in this article and in the articles of incorporation and bylaws of an electric membership corporation.
  8. "Person" includes any natural person; firm; association; electric membership corporation; cooperative; corporation; business or other trust; partnership; limited liability company; federal agency; state or political subdivision thereof; body politic; or other entity recognized by law.

    (8.1) "Retail broadband services" means any broadband services other than those provided for:

    1. The internal use of an electric membership corporation;
    2. The internal use of another electric membership corporation;
    3. Resale by another electric membership corporation or other communications service providers; or
    4. Use as a component part of communications services that other communications service providers offer to their customers.
  9. "Service" means any service or commodity which an electric membership corporation may provide under this article for which value is paid.

(Ga. L. 1937, p. 644, § 2; Ga. L. 1939, p. 312, § 1; Ga. L. 1960, p. 5, § 1; Code 1933, § 34C-102, enacted by Ga. L. 1981, p. 1587, § 1; Ga. L. 2019, p. 226, § 1/SB 2.)

The 2019 amendment, effective April 26, 2019, added paragraphs (2.1) through (2.5), (5.1), (5.2), and (8.1); substituted "person that" for "person who" near the beginning of paragraph (7); and rewrote paragraph (8), which read: "'Person' includes any natural person; firm; association; electric membership corporation; foreign electric cooperative; corporation, either domestic or foreign; business or other trust; partnership; federal agency; state or political subdivision thereof; or body politic."

JUDICIAL DECISIONS

Word "member" designates both shareholder and customer.

- One word contained in Ga. L. 1937, p. 644 (see O.C.G.A. Art. 4, Ch. 3, T. 46) designates both the shareholder and the customer; that word is "member." By whatever word the customer may be designated, the customer is still a customer, and by whatever name a shareholder may be referred to a shareholder is still a shareholder. Lamar Elec. Membership Corp. v. Carroll, 89 Ga. App. 440, 79 S.E.2d 832 (1953).

Cited in Georgia Power Co. v. Okefenokee Rural Elec. Membership Corp., 217 Ga. 219, 121 S.E.2d 777 (1961); Georgia Power Co. v. Altamaha Rural Elec. Membership Corp., 217 Ga. 376, 122 S.E.2d 250 (1961); Georgia Power Co. v. Oconee Elec. Membership Corp., 219 Ga. 690, 135 S.E.2d 328 (1964); Troup County Elec. Membership Corp. v. Georgia Power Co., 229 Ga. 348, 191 S.E.2d 33 (1972).

RESEARCH REFERENCES

Am. Jur. 2d.

- 18 Am. Jur. 2d, Cooperative Associations, §§ 1-4. 18 Am. Jur. 2d, Corporations, §§ 199, 202, 203, 205, 206. 27A Am. Jur. 2d, Energy and Power Sources, §§ 42, 43, 45.

C.J.S.

- 18 C.J.S., Corporations, §§ 33-40. 29 C.J.S., Electricity, § 10.

46-3-172. Applicability of article.

  1. This article shall apply to electric membership corporations but shall not apply to other persons except when expressly so provided in this article.
  2. This article shall apply to commerce with foreign nations and among the several states only insofar as the same may be permitted under the Constitution and laws of the United States.
  3. This article shall not impair the existence of any electric membership corporation existing on July 1, 1981. Any such existing electric membership corporation and its members, directors, and officers shall have the same rights and be subject to the same limitations, restrictions, liabilities, and penalties as an electric membership corporation formed under this article and its members, directors, and officers.
  4. If the articles of incorporation or the bylaws of an electric membership corporation in existence on July 1, 1981, contain any provisions which were not authorized or permitted by the prior electric membership corporation law of this state but which are authorized or permitted by this article, such articles of incorporation or bylaw provisions shall be valid on and from July 1, 1981; and action may be taken on and from that date in reliance on such provisions.

(Code 1933, § 34C-103, enacted by Ga. L. 1981, p. 1587, § 1.)

46-3-173. Effect of affixing corporate seal; signing of documents; affixing of seal as optional; signing of deeds after dissolution of an electric membership corporation.

  1. With respect to any contract, conveyance, or other such document executed by and on behalf of an electric membership corporation or a foreign electric cooperative, the presence of the corporate seal or facsimile thereof, attested by the secretary or an assistant secretary of the corporation, shall attest:
    1. That the corporate seal or facsimile thereof affixed to the document is in fact the seal of the corporation or a true facsimile thereof, as the case may be;
    2. That any officer of the corporation executing the document does in fact occupy the official position indicated; that one in such position is duly authorized to execute such document on behalf of the corporation; and that the signature of such officer subscribed thereto is genuine; and
    3. That the execution of the document on behalf of the corporation has been duly authorized.
  2. When the seal of an electric membership corporation or facsimile thereof is affixed to any document and is attested by the secretary or an assistant secretary of an electric membership corporation, a third party without knowledge or reason to know to the contrary may rely on such document as being what it purports to be.
  3. When other provisions of this article require a document to be executed as provided in this Code section, the document shall be signed by the president or other chief executive officer, or a vice-president; and his signature shall be attested by the secretary or an assistant secretary. If the corporate seal is affixed, the signature of the secretary or assistant secretary shall also attest the seal.
  4. The seal of the electric membership corporation may, but need not, be affixed to any document executed in accordance with this article; and its absence therefrom shall not impair the validity of the document or of any action taken in pursuance thereof or in reliance thereon.
  5. Deeds or other transfer instruments requiring execution after the dissolution of an electric membership corporation may be signed by any two of the last officers or directors of the electric membership corporation and shall operate to convey the interest of the electric membership corporation in the real estate or other property described.

(Code 1933, § 34C-104, enacted by Ga. L. 1981, p. 1587, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 18 Am. Jur. 2d, Corporations, §§ 300-304.

C.J.S.

- 18 C.J.S., Corporations, § 106.

46-3-174. Filing of documents with Secretary of State; filing of articles of correction.

  1. Whenever this article requires any document to be delivered for filing as provided in this article, unless otherwise specifically stated in this article and subject to any additional provisions of this article, such requirement shall mean that:
    1. The original executed document, together with a conformed copy thereof, shall be delivered to the office of the Secretary of State;
    2. All fees required for filing the document shall be tendered to the Secretary of State;
    3. Upon delivery of the documents, and upon tender of the required fees, the Secretary of State shall certify that the original has been filed in his office by endorsing upon the original the word "filed" and the hour, day, month, and year thereof. Such endorsement shall be known as the filing date of the document and shall be conclusive of the date of filing in the absence of actual fraud. The Secretary of State shall thereafter file and index the original;
    4. The Secretary of State shall immediately compare the conformed copy with the original; and, if he finds that they are identical, he shall certify the conformed copy by making upon it the same endorsement which is required to appear upon the original, together with a further endorsement that the conformed copy is a true copy of the original document;
    5. The conformed copy, so certified, shall be returned to the person or persons delivering the documents to the Secretary of State or to the designee of such person or persons; and it shall be retained as part of the permanent records of the electric membership corporation or foreign electric cooperative.
  2. Whenever any document authorized to be filed with the Secretary of State under this article has been so filed and contains errors in, inaccuracies in, or omissions of information required by this article, is an inaccurate record of the action therein referred to, or was defectively or erroneously executed or sealed, such document may be corrected by filing articles of correction with the Secretary of State. The articles of correction shall specify the error, inaccuracy, omission, or defect to be corrected and shall set forth the portion of the document in corrected form. Except as set forth in subsection (c) of this Code section, the procedure for filing articles of correction shall be the same as would be required under this article for filing the document being corrected. The corrected document shall be effective as of the effective date of the original document, except as to those persons who are substantially and adversely affected by the correction; and, as to those persons, the corrected document shall be effective from the filing date of the articles of correction.
  3. No fee shall be payable to the Secretary of State for filing the articles of correction. The filing of the articles of correction as authorized in subsection (b) of this Code section shall not require the republication of any notice previously published in connection with the filing of the original document unless the error, inaccuracy, omission, or defect in the original document relates to information which was disclosed in the notice. In the event the error, inaccuracy, omission, or defect in the original document relates to information disclosed in the notice, a new notice shall be published in the same manner as the original publication. The publisher's fee for republication shall be the same as the fee for the original publication.

(Code 1933, § 34C-105, enacted by Ga. L. 1981, p. 1587, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 18 Am. Jur. 2d, Corporations, §§ 88, 95, 208, 209, 211, 213, 244-246. 19 Am. Jur. 2d, Corporations, §§ 1002, 1142, 1376, 1859-1862, 2614, 2615.

C.J.S.

- 18 C.J.S., Corporations, § 39.

46-3-175. Certification of documents by Secretary of State.

The Secretary of State, at any time, upon the request of any person, shall make and certify additional copies of any document filed with his or her office and of the certificate, if any, issued by the Secretary of State in connection with the filing of the document, under this article, upon payment to the Secretary of State of the fee provided for in Code Section 46-3-502.

(Code 1933, § 34C-106, enacted by Ga. L. 1981, p. 1587, § 1; Ga. L. 2011, p. 99, § 90/HB 24.)

The 2011 amendment, effective January 1, 2013, deleted former subsection (a); deleted the former subsection (b) designation; inserted "or her" near the middle of this Code section; and substituted "the Secretary of State" for "him" near the end of this Code section. See Editor's notes for applicability.

Editor's notes.

- Ga. L. 2011, p. 99, § 101/HB 24, not codified by the General Assembly, provides that the amendment of this Code section by that Act shall apply to any motion made or hearing or trial commenced on or after January 1, 2013.

Law reviews.

- For article, "Evidence," see 27 Ga. St. U. L. Rev. 1 (2011). For article on the 2011 amendment of this Code section, see 28 Ga. St. U. L. Rev. 1 (2011).

46-3-176. Obligations issued to secure payment of federal loans as constituting securities; exemption of obligations and membership certificates from Georgia securities laws.

Whenever any electric membership corporation shall have borrowed money from any federal agency, the obligations issued to secure the payment of such money shall be and are classified as securities, the inherent qualities of which assure their sale and disposition without the perpetuation of fraud and which, together with membership certificates issued by any such electric membership corporation, shall not be subject to the Georgia securities laws.

(Ga. L. 1937, p. 644, § 20; Code 1933, § 34C-1801, enacted by Ga. L. 1981, p. 1587, § 1.)

46-3-177. Jurisdiction of commission.

Except as otherwise provided in Part 1 of Article 1 of this chapter, the "Georgia Territorial Electric Service Act," electric membership corporations shall not be subject to the jurisdiction of the commission.

(Code 1933, § 34C-1802, enacted by Ga. L. 1981, p. 1587, § 1.)

46-3-178. Intent of article as regards authority of electric membership corporations to own or operate cable television systems.

It is the intention of the General Assembly that nothing in this article shall be construed so as to authorize any electric membership corporation to own or operate a cable television system.

(Ga. L. 1981, p. 1587, § 2.)

46-3-179. Validity of transactions entered into before July 1, 1981; preservation of rights, duties, and interests arising from such transactions.

Transactions validly entered into before July 1, 1981, and the rights, duties, and interests flowing from them shall remain valid thereafter and may be terminated, completed, consummated, or enforced as required or permitted by any statute repealed by this article as though such repeal had not occurred.

(Ga. L. 1981, p. 1587, § 3.)

46-3-180. Effect of article on cause of action, liability, penalty, or special proceeding accrued, existing, incurred, or pending as of July 1, 1981.

The repeal of a prior Act by this article shall not affect any cause of action, liability, penalty, or action or special proceeding which is accrued, existing, incurred, or pending on July 1, 1981; but the same may be asserted, enforced, prosecuted, or defended as if the prior Act had not been repealed.

(Ga. L. 1981, p. 1587, § 4.)

46-3-181. Reservation of power by General Assembly.

The General Assembly shall at all times have power to prescribe such regulations, provisions, and limitations as it may deem advisable, which regulations, provisions, and limitations shall be binding upon any and all persons which are subject to this article; and the General Assembly shall have power to amend, repeal, or modify this article at pleasure.

(Code 1933, § 34C-107, enacted by Ga. L. 1981, p. 1587, § 1.)

46-3-182. Construction of article as against Part 1 of Article 1 of this chapter, the "Georgia Territorial Electric Service Act."

Nothing in this article repeals, or is intended to repeal, either expressly or by implication, any provision of Part 1 of Article 1 of this chapter, the "Georgia Territorial Electric Service Act."

(Code 1933, § 34C-108, enacted by Ga. L. 1981, p. 1587, § 1.)

PART 2 C ORPORATE PURPOSES AND POWERS

46-3-200. Purposes of electric membership corporations.

An electric membership corporation may serve any one or more of the following purposes:

  1. Furnish electrical energy and service;
  2. Assist its members in the efficient and economical use of energy;
  3. Engage in research and promote and develop energy conservation and sources and methods of conserving, producing, converting, and delivering energy;
  4. Provide and operate broadband facilities and provide and use the broadband services described in subparagraphs (A) and (B) of paragraph (8.1) of Code Section 46-3-171;
  5. Furnish on a nondiscriminatory basis the broadband services described in subparagraphs (C) and (D) of paragraph (8.1) of Code Section 46-3-171;
  6. Form, fund, support, and operate a broadband affiliate, directly or indirectly, contingent upon compliance with Code Sections 46-5-163 and 46-3-200.2; and
  7. Engage in any lawful act or activity necessary or convenient to effect the foregoing purposes.

(Ga. L. 1937, p. 644, § 3; Code 1933, § 34C-201, enacted by Ga. L. 1981, p. 1587, § 1; Ga. L. 2019, p. 226, § 2/SB 2.)

The 2019 amendment, effective April 26, 2019, rewrote this Code section, which read: "An electric membership corporation may serve any one or more of the following purposes:

"(1) To furnish electrical energy and service;

"(2) To assist its members in the efficient and economical use of energy;

"(3) To engage in research and to promote and develop energy conservation and sources and methods of conserving, producing, converting, and delivering energy; and

"(4) To engage in any lawful act or activity necessary or convenient to effect the foregoing purposes."

JUDICIAL DECISIONS

Qualifications of nonprofit electric membership corporation.

- If the entire benefit of the sole enterprise upon which the electric membership corporation was empowered by its charter to enter inures to the general public and no profit or improvement of the economic condition or desires of its stockholders or members was contemplated, the corporation could not be said to be in business within the contemplation of former Code 1933, § 94-1101 (see O.C.G.A. § 46-1-2), but a corporation whose stockholders, by whatever name they may be designated, derive from the transaction of the business a profit in money or improvement in their economic conditions and desires was engaged in business within the contemplation of the above mentioned section, and was subject to the jurisdiction of the courts, under the same rules of practice that other electric corporations were. Lamar Elec. Membership Corp. v. Carroll, 89 Ga. App. 440, 79 S.E.2d 832 (1953).

It is not required that a transmission line serve more than one member. Hagans v. Excelsior Elec. Membership Corp., 207 Ga. 53, 60 S.E.2d 162 (1950).

Fact that property used as resort does not prevent owner from becoming member.

- The fact that an applicant's property is used for a fishing camp or pleasure resort, and not as a farm home, permanent dwelling, or place of business, does not prevent the applicant becoming a member of the corporation and receiving electric service, or the corporation from furnishing electric energy to the applicant. Hagans v. Excelsior Elec. Membership Corp., 207 Ga. 53, 60 S.E.2d 162 (1950).

Sale of satellite dishes.

- An electric membership corporation must require a consumer to be a member of that EMC before the EMC can sell a satellite dish to the consumer. Washington Elec. Membership Corp. v. Avant, 256 Ga. 340, 348 S.E.2d 647 (1986).

Sale of propane gas.

- An electric membership corporation was not authorized to sell propane gas to its customers. Flint Elec. Membership Corp. v. Barrow, 271 Ga. 636, 523 S.E.2d 10 (1999).

Liability for punitive damages.

- An electric membership corporation has power under O.C.G.A. § 46-3-200 to sue and be sued, and there is no statutory exemption from liability for punitive damages. Walton Elec. Membership Corp. v. Snyder, 270 Ga. 62, 508 S.E.2d 167 (1998).

Standing to claim tax refund.

- Electrical membership corporation lacked direct standing to pursue a claim for a refund of sales tax on behalf of its members/patrons, pursuant to O.C.G.A. § 48-2-35(b)(1), as it was not a "taxpayer" within O.C.G.A. § 48-2-35(b)(4) for purposes of bringing an action for a tax refund as it did not bear the burden of the tax because the tax was passed on to its members/patrons; one purpose of the EMC was to furnish electrical energy and service to its members, pursuant to O.C.G.A. § 46-3-200(1), and the sale of electricity required a retail sales tax paid to the EMC, which was passed onto the Georgia Commission of Revenue, pursuant to O.C.G.A. § 48-8-30(a). Sawnee Elec. Mbrshp. Corp. v. Ga. Dep't of Revenue, 279 Ga. 22, 608 S.E.2d 611 (2005).

Mandamus unavailable for nominee seeking to serve on electric membership corporation.

- Trial court erred by granting a nominee's writ of mandamus because, under O.C.G.A. § 9-6-23, mandamus did not lie to enforce purely private contract rights and the nominee's efforts to be qualified as a person to sit on the board of an electric membership corporation was a private right as board members were not public officers within the meaning of O.C.G.A. § 9-6-20. Rigby v. Boatright, 294 Ga. 253, 751 S.E.2d 851 (2013).

Cited in Flint Elec. Membership Corp. v. Posey, 78 Ga. App. 597, 51 S.E.2d 869 (1949); Georgia Power Co. v. Okefenokee Rural Elec. Membership Corp., 217 Ga. 219, 121 S.E.2d 777 (1961); Georgia Power Co. v. Altamaha Rural Elec. Membership Corp., 217 Ga. 376, 122 S.E.2d 250 (1961); Georgia Power Co. v. Oconee Elec. Membership Corp., 219 Ga. 690, 135 S.E.2d 328 (1964).

RESEARCH REFERENCES

Am. Jur. 2d.

- 27A Am. Jur. 2d, Energy and Power Sources, §§ 14, 15, 34, 43.

C.J.S.

- 29 C.J.S., Electricity, §§ 10-15.

46-3-200.1. Authorized acts of electric membership corporation or broadband affiliate.

In order to assist a broadband affiliate in the planning, engineering, construction, extension, provision, operation, repair, and maintenance of broadband services, an electric membership corporation or its broadband affiliate shall be authorized to:

  1. Apply for, accept, repay, and utilize loans, grants, and other financing from any person; and
  2. Enter into contracts, agreements, partnerships, or other types of business relationships with any person.

(Code 1981, §46-3-200.1, enacted by Ga. L. 2019, p. 226, § 3/SB 2.)

Effective date.

- This Code section became effective April 26, 2019.

46-3-200.2. Cross-subsidization; jurisdiction over compliance with the cross-subsidization prohibitions; expedited adjudication.

  1. No electric membership corporation, broadband affiliate, or gas affiliate shall permit cross-subsidization between its electricity services activities, its broadband services activities, or its gas activities. To prevent cross-subsidization between broadband services activities and gas activities and between broadband services activities and electricity services activities, any electric membership corporation with a broadband affiliate that provides retail broadband services shall:
    1. Fully allocate all costs of electricity services activities and broadband services activities, including costs of any shared services, between electricity services activities and such broadband affiliate's broadband services activities, in accordance with:
      1. The provisions of this Code section; and
      2. The applicable uniform system of accounts and generally accepted accounting principles that are applicable to electric membership corporations under federal and state laws, rules, and regulations;
    2. Not charge any costs of electricity services activities or gas activities to the broadband services customers of the broadband affiliate;
    3. Not charge any costs of broadband services activities to the electricity services customers of such electric membership corporation or to the gas activities customers of its gas affiliate; and
    4. Not use below-market loans or below-market funding from programs that are not intended to support the deployment of broadband facilities or broadband services in order to support broadband facilities or to provide broadband services unless the electric membership corporation or its broadband affiliate imputes the difference between market rates and the below-market loans or below-market funding into the costs of its broadband facilities and broadband services. The provisions of this paragraph shall not apply to loans or funding from programs that are intended to support the deployment of broadband facilities or broadband services.
  2. An electric membership corporation that has a broadband affiliate that provides retail broadband services shall:
    1. Not condition the receipt of electricity services upon, nor provide more favorable terms for electricity services in exchange for, persons that receive broadband services from the electric membership corporation or its broadband affiliate;
    2. Have a duty to provide access to the poles, ducts, conduits, and easements of such electric membership corporation to all communications service providers on rates, terms, and conditions that are just, reasonable, and nondiscriminatory;
    3. Not provide its broadband affiliate or any communications service provider any information obtained from other communications service providers in the pole attachment request and approval process, including without limitation the requested locations for pole attachments, the locations of the customers to be served, or any identifying information regarding such customers;
    4. When such electric membership corporation is assisting a customer or potential customer seeking to initiate electricity services and there is any inquiry or discussion regarding the availability of retail broadband services, in the course of the same discussion or transaction in which such assistance is being provided, inform such customer or potential customer of other providers offering broadband services in such customer's area based on any service map of a provider of broadband services or similar resource maintained by any department of the state or federal government and inform such customer or potential customer that broadband services may be obtained from such electric membership corporation's broadband affiliate or such other providers of broadband services. Such information shall be provided only with regard to other providers of broadband services that have notified the electric membership corporation's broadband affiliate, in writing and in a commercially reasonable manner, that such provider of broadband services is able and willing to provide broadband services to customers located within all or a portion of the electric membership corporation's designated electricity service territory; and
    5. Develop and maintain a cost allocation manual, to be approved by the commission, describing the electric membership corporation's methods of cost allocation and such other information and policies reasonably required to ensure compliance with this article. Such manual shall:
      1. Establish rules for the pricing of transactions between an electric membership corporation and its gas affiliates and broadband affiliates, as applicable, including the transfer of assets between such electric membership corporation and its gas affiliates and broadband affiliates;
      2. Require the electric membership corporation and its gas affiliates and broadband affiliates, as applicable, to maintain separate books of accounts and records which shall be subject to inspection to confirm compliance with this article and the cost allocation manual; and
      3. Require that all services that an electric membership corporation provides to its gas affiliates and broadband affiliates, as applicable, be provided at the same rates and on the same terms and conditions as any other similarly situated retail customer or communications service provider. Any such services provided to any communications service provider shall be on a strictly confidential basis, such that the electric membership corporation does not share information regarding any communications service provider with any other communications service provider, including a broadband affiliate.
  3. The commission shall have jurisdiction over each broadband affiliate and each electric membership corporation that has a broadband affiliate that provides retail broadband services to enforce compliance within the provisions of this Code section. The commission shall provide for an expedited adjudication of any complaint as to a failure to comply with this Code section and may engage an administrative law judge for purposes of such adjudication.
  4. Except as provided in subsection (e) of this Code section, this Code section shall only apply to electric membership corporations with a broadband affiliate offering retail broadband services.
  5. As to an electric membership corporation that was offering retail broadband services on or before January 1, 2019, whether directly through the electric membership corporation or indirectly through a broadband affiliate, this Code section shall only apply to retail broadband services offered on or after January 1, 2021, and such electric membership corporation shall have until January 1, 2021, to develop and maintain the cost allocation manual required in paragraph (5) of subsection (b) of this Code section.

(Code 1981, §46-3-200.2, enacted by Ga. L. 2019, p. 226, § 3/SB 2.)

Effective date.

- This Code section became effective April 26, 2019.

46-3-200.3. Rights, powers, and benefits to broadband affiliates of electric membership corporations.

Broadband affiliates shall have all of the rights, powers, and benefits granted to other entities under the provisions of Title 14 and shall not be subject to any restrictions contained in this article, except that a broadband affiliate shall:

  1. Only serve the purposes of developing, providing, furnishing, or promoting broadband facilities and broadband services, or a combination of such purposes; and
  2. Be subject to the provisions of Code Section 46-3-200.2.

(Code 1981, §46-3-200.3, enacted by Ga. L. 2019, p. 226, § 3/SB 2.)

Effective date.

- This Code section became effective April 26, 2019.

46-3-200.4. Rates, terms, and conditions for pole attachments between communications service providers and electric membership corporations and their broadband affiliates.

  1. As used in this Code section, the term:
    1. "Existing agreement" means a pole attachment agreement or joint use agreement in effect as of January 1, 2019.
    2. "New agreement" means a pole attachment agreement or joint use agreement that was not in effect as of January 1, 2019.
  2. Except as required by the Tennessee Valley Authority for its distributors in this state, a communications service provider that has an existing agreement with an electric membership corporation shall have the right, through December 31, 2034, to attach to poles of the electric membership corporation and its broadband affiliate after the expiration of the original period of such existing contract:
    1. Upon terms and conditions that are no less favorable than those in such existing agreement; and
    2. At rates that shall not exceed the rates in such existing agreement, subject to annual rate adjustments based on the Handy-Whitman Index of Public Utility Construction Costs, and based upon the Consumer Price Index in the event the Handy-Whitman Index of Public Utility Construction Costs is no longer available.
  3. Except as required by the Tennessee Valley Authority for its distributors in this state, any new agreement between an electric membership corporation and a communications service provider shall provide for attachments to poles of the electric membership corporation and its broadband affiliate:
    1. Upon terms and conditions that are no less favorable than those in existing agreements; and
    2. At rates that shall not exceed the highest of those rates in any existing agreement, subject to annual rate adjustments based on the Handy-Whitman Index of Public Utility Construction Costs, and based upon the Consumer Price Index in the event the Handy-Whitman Index of Public Utility Construction Costs is no longer available.
  4. An electric membership corporation that terminates, without cause, an existing agreement or new agreement with a communications service provider shall not be permitted to form or utilize a broadband affiliate for a period of one year from the date of the termination of any such agreement, if the number of poles with attachments under such terminated agreement constitutes one-half or more of all electric membership corporations' poles containing an attachment by a communications service provider.

(Code 1981, §46-3-200.4, enacted by Ga. L. 2019, p. 226, § 3/SB 2.)

Effective date.

- This Code section became effective April 26, 2019.

46-3-201. Existence of electric membership corporations under articles of incorporation; duration of corporations; powers of corporations generally.

  1. Subject to any limitations provided in this article, or in any other law, and consistent with the purposes set forth in this article, each electric membership corporation:
    1. Shall exist under articles of incorporation;
    2. Shall have perpetual duration unless a limited period of duration is stated in its articles of incorporation; provided, however, that each electric membership corporation existing or continuing to operate as an electric membership corporation after the expiration of the period of duration stated in its articles of incorporation or any renewal thereof, on July 1, 1981, shall have perpetual duration unless its articles of incorporation are amended under this article to provide for a limited period of duration. The existence of any such electric membership corporation whose articles of incorporation were expired on July 1, 1981, shall be deemed to have continued without interruption from the date of such expiration;
    3. Shall have power:
      1. To cease its corporate activities and surrender its corporate franchise;
      2. To renew or revive its corporate existence in case a limited period of duration is fixed in its articles of incorporation; and
      3. To sue and be sued and to complain and defend in all courts and to participate in any judicial, administrative, arbitrative, or other action or proceeding.
  2. Subject to any limitations provided in this article or in any other law, and consistent with the purposes set forth in this article, each electric membership corporation shall have power:
    1. To conduct its business, carry on its operations, have offices, and exercise its powers granted by this article at any location within or outside of this state;
    2. To make and alter bylaws, not inconsistent with its articles of incorporation or with the laws of this state, for the administration and regulation of the affairs of the electric membership corporation;
    3. To elect, appoint, or hire officers, employees, and other agents of the electric membership corporation; to define their duties; and to fix their compensation and the compensation of directors;
    4. To have a corporate seal which may be altered at pleasure and to use the seal by causing it or a facsimile thereof to be impressed or affixed or in any other manner reproduced;
    5. To purchase; take; receive by gift, will, or otherwise; lease; or otherwise acquire, own, hold, improve, use, and otherwise deal in and with real or personal property or any interest therein, wherever situated;
    6. To sell, convey, lease, exchange, transfer, and otherwise dispose of all or any part of its property and assets or any interest therein, wherever situated;
    7. To generate, manufacture, purchase, acquire, and accumulate electricity, and to transmit, distribute, sell, furnish, and dispose of such electricity;
    8. To assist its members in any manner in the efficient and economical use of energy, including, but not limited to, the installation of wiring, insulation, electrical machinery, supplies, apparatus, and equipment of any and all kinds or character;
    9. To acquire, own, hold, use, exercise, and, to the extent permitted by law, sell, mortgage, pledge, hypothecate, and in any manner dispose of franchises, rights, privileges, licenses, rights of way, and easements necessary, useful, or appropriate. Any such electric membership corporation shall have the right to acquire rights of way, easements, and all interests in realty necessary and appropriate to effectuate the purposes of such electric membership corporation by condemnation under the same procedure and terms as provided by Title 22 and any other law of this state which provides a method or procedure for the condemnation of property for public purposes by all persons or corporations having the privilege of exercising the right of eminent domain;
    10. In connection with the acquisition, construction, improvement, operation, or maintenance of its lines, to use any highway or any right of way, easement, or other similar property right owned or held by the state or any political subdivision thereof, subject to reasonable rules and regulations as to safety as may be promulgated by the State Transportation Board or subject to such reasonable terms and conditions as the governing body of such political subdivision shall determine;
    11. To make any and all contracts necessary or convenient for the exercise of the powers granted in this article, including, but not limited to, contracts with any person, federal agency, or municipality for the purchase or sale of energy; and, in connection with any such contract, to stipulate and agree to such covenants, terms, and conditions as the board of directors may deem appropriate, including, but not limited to, covenants, terms, and conditions with respect to resale rates, financial and accounting methods, services, operation and maintenance practices, and the manner of disposing of the revenues of the system operated and maintained by the electric membership corporation;
    12. To make and enter into contracts of guaranty, whether or not the electric membership corporation has a direct interest in the subject matter of the contract with respect to which it acts as guarantor or surety;
    13. To incur obligations and liabilities, borrow money, issue its notes, bonds, and other obligations, and to execute and deliver any one or more mortgages, deeds of trust, or deeds to secure debt covering, or to create by other means a security interest in, any or all of the real or personal property, assets, rights, privileges, licenses, franchises, and permits of the electric membership corporation or any interest therein, as well as the revenues therefrom, whether acquired or to be acquired, and wherever situated, for the purpose of securing the payment or performance of any one or more contracts, notes, bonds, or other obligations of the electric membership corporation;
    14. To purchase, take, receive, subscribe for, or otherwise acquire; to own, hold, vote, use, or employ; to sell, lend, or otherwise dispose of; to mortgage, pledge, create a security interest in, or otherwise encumber; and otherwise to use and deal in and with shares or other interests in or obligations of electric membership corporations or other domestic or foreign corporations, whether for profit or not, associations, partnerships, or individuals, or direct or indirect obligations of the United States or of any other government, state, territory, governmental district, or municipality or any instrumentality thereof;
    15. To form or acquire the control of other electric membership corporations, foreign electric cooperatives, and other corporations, whether domestic or foreign;
    16. To participate with any other person or persons in any corporation, partnership, transaction, arrangement, operation, organization, or venture, even if such participation involves sharing of control with or delegation of control to others;
    17. To lend money, invest and reinvest its funds, and take and hold real and personal property as security for the payment of funds so loaned or invested;
    18. To make donations, irrespective of corporate benefit, for the public welfare or for community fund, hospital, charitable, scientific, educational, civic, or similar purposes, and in time of war or other national emergency in aid of the national effort with respect thereto;
    19. At the request or direction of the United States government or any agency thereof, to transact any lawful business in time of war or national emergency or in aid of national defense;
    20. To procure for its benefit insurance on the life of any of its directors, officers, or employees or any other person whose death might cause financial loss to the electric membership corporation;
    21. To reimburse and indemnify litigation expenses of directors, officers, and employees and to purchase and maintain liability insurance for their benefit;
    22. To purchase and otherwise acquire and dispose of its own securities;
    23. To pay pensions and establish and carry out pension, savings, thrift, and other retirement, incentive, and benefit plans, trusts, and provisions for any or all of its directors, officers, and employees;
    24. To fix, regulate, and collect rates, fees, rents, or other charges for electric energy and any other facilities, supplies, equipment, or services furnished by the electric membership corporation;
    25. To assist any other electric membership corporation in the execution of its purposes and powers under this article; and
    26. To have and exercise all powers necessary or convenient to effect any or all of the purposes for which the electric membership corporation is organized.
  3. It shall not be necessary to set forth in the articles of incorporation any of the powers enumerated in this Code section.
  4. The articles of incorporation may limit or expand the powers conferred by subsection (b) of this Code section in any manner not inconsistent with any other provisions of this article or any other law or with the purposes of electric membership corporations.

(Ga. L. 1937, p. 644, § 4; Ga. L. 1939, p. 312, § 2; Ga. L. 1957, p. 604, §§ 1, 2; Ga. L. 1980, p. 72, § 1; Code 1933, § 34C-202, enacted by Ga. L. 1981, p. 1587, § 1; Ga. L. 1984, p. 22, § 46.)

Law reviews.

- For survey article on local government law, see 59 Mercer L. Rev. 285 (2007). For survey article on zoning and land use law, see 59 Mercer L. Rev. 493 (2007).

JUDICIAL DECISIONS

Section applies to corporation chartered before section enacted.

- The provisions of Ga. L. 1939, p. 312, § 2 (see O.C.G.A. § 46-3-201) authorizing electrical membership corporations to exercise the power of eminent domain apply to a corporation chartered before the date of the approval of the Act enacting that section. Hagans v. Excelsior Elec. Membership Corp., 207 Ga. 53, 60 S.E.2d 162 (1950).

Necessity or appropriateness of proposed project.

- Pursuant to O.C.G.A. § 46-3-201(b)(9), the electric corporation, which had to condemn property in order to effectuate its project, did not have to demonstrate to the county the necessity or the appropriateness of its proposed project; thus, the county ordinance prohibiting the electric lines for three years was unconstitutional. Rabun County v. Ga. Transmission Corp., 276 Ga. 81, 575 S.E.2d 474 (2003).

Discretion in selection of location of route of transmission line.

- Where an electric membership corporation has the right to condemn private property for rights of way for the construction and operation of electric transmission lines, it has a large discretion in the selection of a location for its route over such property; and unless such discretion has been abused, it will not be controlled or interfered with by the courts. Hagans v. Excelsior Elec. Membership Corp., 207 Ga. 53, 60 S.E.2d 162 (1950).

No right of action for destruction of telephone service.

- Under Ga. L. 1939, p. 312, § 2 (see O.C.G.A. § 46-3-201) a telephone company has no cause of action for damages allegedly resulting from acts of an electric company in so placing its lines as to destroy the plaintiff's telephone service. Planters Elec. Membership Corp. v. Savannah Valley Tel. Co., 66 Ga. App. 627, 18 S.E.2d 788 (1942).

Sale of satellite dishes.

- An electric membership corporation must require a consumer to be a member of that EMC before the EMC can sell a satellite dish to the consumer. Washington Elec. Membership Corp. v. Avant, 256 Ga. 340, 348 S.E.2d 647 (1986).

Utility's power of eminent domain.

- Forsyth County, Ga., Unified Development Code §§ 21-6.1, 21-6.5, were defective because they required a utility to successfully comply with the ordinance's procedures, and authorized the county to deny "any or all" portions of an application; as such, they were unconstitutional infringements on the utility's legislatively-delegated power of eminent domain. Forsyth County v. Ga. Transmission Corp., 280 Ga. 664, 632 S.E.2d 101 (2006).

Requirement that action be "brought" in a particular county is not equivalent to a requirement that action be tried there. Thompson v. Sawnee Elec. Membership Corp., 157 Ga. App. 561, 278 S.E.2d 143 (1981).

RESEARCH REFERENCES

Am. Jur. 2d.

- 18 Am. Jur. 2d, Cooperative Associations, § 30. 19 Am. Jur. 2d, Corporations, §§ 1990-1999, 2001-2008, 2037-2123. 27A Am. Jur. 2d, Energy and Power Sources, § 39.

C.J.S.

- 29 C.J.S., Electricity, §§ 15-23.

ALR.

- Furnishing electricity to public as public use or purpose for which power of eminent domain may be exercised, 44 A.L.R. 735; 58 A.L.R. 787.

Elements and measure of compensation for power lines or other wire lines over private property, 49 A.L.R. 697; 124 A.L.R. 407.

Liability of gas or electric light or power company for injury to fireman, policeman, or other public employee seeking to prevent damage to person or property of others, 61 A.L.R. 1028.

Right to cut off supply of electricity or gas because of nonpayment of service bill or charges, 112 A.L.R. 237.

Right of electrical company to discriminate against a concern which desires service for resale, 112 A.L.R. 773.

Use of streets and highways by cooperative utility, 172 A.L.R. 1020.

Correlative rights of dominant and servient owners in right of way for electric line, 6 A.L.R.2d 205.

Deposit required by public utility, 43 A.L.R.2d 1262.

Electric light or power line in street or highway as additional servitude, 58 A.L.R.2d 525.

Validity of contract between public utilities other than carriers, dividing territory and customers, 70 A.L.R.2d 1326.

Co-operative associations: rights in equity credits or patronage dividends, 50 A.L.R.3d 435.

Right of public utility to deny service at one address because of failure to pay for past service rendered at another, 73 A.L.R.3d 1292.

Applicability of zoning regulations to projects of nongovernmental public utility as affected by utility's having power of eminent domain, 87 A.L.R.3d 1265.

46-3-202. Defense of ultra vires.

No act of an electric membership corporation and no conveyance or transfer of real or personal property to or by an electric membership corporation shall be invalid by reason of the fact that the electric membership corporation was without capacity or power to do such act or to make or receive such conveyance or transfer; but such lack of capacity or power may be asserted:

  1. In an action by a member or director against the electric membership corporation to enjoin the doing of any act or the transfer of real or personal property by or to the electric membership corporation, unless the plaintiff has assented to the act or transfer in question or in bringing the action is acting in collusion with officials of the electric membership corporation. If the unauthorized act or transfer sought to be enjoined is being or is to be performed or made pursuant to any contract to which the electric membership corporation is a party, the court may, if all the parties to the contract are parties to the action and if it deems the same to be equitable, set aside and enjoin the performance of such contract and in so doing may allow to the electric membership corporation or to the other parties to the contract, as the case may be, compensation for the loss or damage sustained by either of them which may result from the action of the court in setting aside and enjoining the performance of such contracts; but anticipated profits to be derived from the performance of the contract shall not be awarded by the court as a loss or damage sustained;
  2. In an action by the electric membership corporation, whether acting directly or through a receiver, trustee, or other legal representative or through members in a representative action, against an incumbent or former officer or director of the electric membership corporation for loss or damage due to his unauthorized act; or
  3. In an action by the Attorney General to dissolve the electric membership corporation or in an action by the Attorney General to enjoin the electric membership corporation from the transaction of unauthorized business.

(Code 1933, § 34C-203, enacted by Ga. L. 1981, p. 1587, § 1.)

JUDICIAL DECISIONS

Corporation may not borrow money for purpose of lending it to member.

- Under the Rural Electrification Act (7 U.S.C. § 901 et seq.) and the Georgia enabling act of 1937 (Ga. L. 1937, p. 644), and the charter of the defendant electric membership corporation, the act of the electric membership corporation in borrowing money from the Federal Rural Electrification Administration for the purpose of lending it to one of its corporate members or stockholders, in order that the latter might erect and maintain a cold storage plant is ultra vires and illegal. Galloway v. Mitchell County Elec. Membership Corp., 190 Ga. 428, 9 S.E.2d 903 (1940).

RESEARCH REFERENCES

Am. Jur. 2d.

- 19 Am. Jur. 2d, Corporations, §§ 2009-2012, 2014-2016, 2034.

C.J.S.

- 19 C.J.S., Corporations, §§ 573-579.

46-3-203. Unauthorized assumption of corporate powers.

All persons who assume to act as an electric membership corporation before the Secretary of State has issued the certificate of incorporation to the incorporator or incorporators or his or their attorney shall be jointly and severally liable for all debts and liabilities incurred or arising as a result thereof.

(Code 1933, § 34C-204, enacted by Ga. L. 1981, p. 1587, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 19 Am. Jur. 2d, Corporations, §§ 1521-1634.

46-3-204. Limitations as to actions growing out of acquisition of rights of way, easements, or occupation of lands of others; damages recoverable.

All rights of action accruing against any electric membership corporation growing out of the acquisition of rights of way or easements or the occupying of lands of others by such electric membership corporations shall be barred at the end of 12 months from the date of the accrual of such cause of action; and in cases where any such electric membership corporation is in possession of the lands of others without having condemned the property as provided, and such electric membership corporation is using any such land of another for any of the purposes for which an electric membership corporation may be created under this article, and the owners of the land took no legal steps to prevent the occupation of the land by the electric membership corporation, the rights of the owner of the land shall be limited to whatever damages may have been caused to his realty by such occupation; and this limitation shall apply to all persons whether sui juris or not.

(Ga. L. 1939, p. 312, § 3; Code 1933, § 34C-205, enacted by Ga. L. 1981, p. 1587, § 1.)

JUDICIAL DECISIONS

Statute of limitations is constitutional.

- One-year statute of limitations under O.C.G.A. § 46-3-204 is constitutional because the statute does not violate the Equal Protection Clause of the Georgia Constitution and is not unconstitutionally vague. Daniel v. Amicalola Elec. Mbrshp. Corp., 289 Ga. 437, 711 S.E.2d 709 (2011).

Statute not governing claims against utility for noise pollution.

- Trial court properly denied summary judgment to an electrical plant operator on nearby landowners' nuisance claims. O.C.G.A. § 46-3-204 governed the acquisition of rights of way and did not apply to noise pollution claims, and the evidence as to whether the noise and vibrations from the plant were abatable nuisances or permanent nuisances was in sharp conflict. Oglethorpe Power Corp. v. Forrister, 303 Ga. App. 271, 693 S.E.2d 553 (2010).

Application to "all rights of action".

- Trial court correctly concluded that O.C.G.A. § 46-3-204 applied to the class member claims. The class was defined to include owners of land onto which the electric company unlawfully entered to erect structures; thus, the developer and other potential class members could not avoid the limiting language of the Code section by seeking equitable relief in the form of deed reformation because the Code section applied to "all rights of action." Boston Creek Holdings, LLLP v. Amicalola Elec. Mbrshp. Corp., 320 Ga. App. 375, 739 S.E.2d 811 (2013).

Claims were not time-barred.

- Property owners' claims against a utility were not time-barred because the owners filed suit within two months of the utility's alleged trespass and conversion as the destruction of more vegetation by the utility, which had previously clear cut trees on the owners' property, was new. Given the evidence that a utility representative disclaimed any easement or other right to enter the property again after the first incident, the second entry could not be deemed as a matter of law to be part of a continuing trespass. Daniel v. Amicalola Elec. Mbrshp. Corp., 289 Ga. 437, 711 S.E.2d 709 (2011).

Claims were time-barred.

- Property owners' argument that a utility defrauded the owners by claiming that the utility had no easement and no plan to enter the owners' property again did not toll the owners' claims relating to the entry of the owners' property because the trespass was completed and would not recur, and no matter what, the utility could not put back the trees and vegetation the utility had clear-cut, so the conversion was complete. There was no allegation, much less evidence, that the utility misled the owners as to a damages action. Daniel v. Amicalola Elec. Mbrshp. Corp., 289 Ga. 437, 711 S.E.2d 709 (2011).

Cited in Starr v. Central Ga. Elec. Membership Corp., 143 Ga. App. 528, 239 S.E.2d 241 (1977); Webster v. Snapping Shoals Elec. Membership Corp., 176 Ga. App. 265, 335 S.E.2d 637 (1985).

RESEARCH REFERENCES

Am. Jur. 2d.

- 26 Am. Jur. 2d, Eminent Domain, §§ 136. 171 et seq.

27 Am. Jur. 2d, Eminent Domain, §§ 910, 911, 912, 917.

C.J.S.

- 29 C.J.S., Electricity, § 59.

ALR.

- Effect of fraud to toll the period for bringing action prescribed in statute creating the right of action, 15 A.L.R.2d 500.

Settlement negotiations as estopping reliance on statute of limitations, 39 A.L.R.3d 127.

Fraud as extending statutory limitations period for contesting will or its probate, 48 A.L.R.4th 1094.

46-3-205. Use of easements.

  1. The General Assembly finds that electric membership corporations providing broadband services should be permitted to use existing electric easements to provide or expand access to broadband services. The General Assembly also finds that utilizing existing electric easements to provide broadband services, without the placement of additional poles or other ground based structures, does not change the physical use of the easement, interfere with or impair any vested rights of the owner or occupier of the real property subject to the electric easement, or place any additional burden on the property interests of such owner or occupier. Consequently, the installation and operation of broadband services within any electric easement are merely changes in the manner or degree of the granted use as appropriate to accommodate a new technology and, absent any applicable express prohibition contained in the instrument conveying or granting the electric easement, shall be deemed as a matter of law to be a permitted use within the scope of every electric easement.
  2. Subject to compliance with any express prohibitions in an electric easement, the owner of an electric easement may use an electric easement to install, maintain, lease, and operate broadband services without incurring liability to the owner or occupant of the real property subject to the electric easement or paying additional compensation to the owner or occupant of the real property subject to the electric easement, so long as no additional poles or other ground based structures are installed; provided, however, that any electric utility owning an electric easement may assess fees and charges and impose reasonable conditions on the use of its facilities within an electric easement for the purpose of providing or supporting broadband services.

(Code 1981, §46-3-205, enacted by Ga. L. 2019, p. 226, § 4/SB 2.)

Effective date.

- This Code section became effective April 26, 2019.

PART 3 C ORPORATE NAME

46-3-220. Requirements as to corporate name generally.

  1. The corporate name shall be written in Roman or cursive letters or Arabic or Roman numbers and:
    1. Shall contain the words "electric membership corporation" or an abbreviation of such words;
    2. Shall not contain any word or phrase:
      1. Which indicates or implies that the electric membership corporation is organized for any purpose other than one or more of the purposes permitted by this article and its articles of incorporation; or
      2. Which, in the reasonable judgment of the Secretary of State, is obscene;
    3. Shall not be the same as or confusingly similar to:
      1. The name of any electric membership corporation or other corporation, whether for profit or not, existing under the laws of this state;
      2. The name of any foreign corporation, whether for profit or not, or any foreign electric cooperative authorized to transact business in this state;
      3. A name the exclusive right to which is at the time reserved in the manner provided in Chapter 3 of Title 14, the "Georgia Nonprofit Corporation Code," Chapter 2 of Title 14, the "Georgia Business Corporation Code," or in this article;
      4. The name of a corporation which has in effect a registration of its corporate name as provided in Chapter 2 of Title 14, the "Georgia Business Corporation Code"; or
      5. Any name prohibited by any other law of this state.
  2. Nothing in this Code section shall:
    1. Prevent the use of the name of any electric membership corporation or other corporation, whether domestic or foreign, by an electric membership corporation where the first such electric membership corporation or other corporation has consented to such use, and the name of the electric membership corporation proposing such use contains other words or characters which distinguish it from the name of the first such electric membership corporation or other corporation;
    2. Require any electric membership corporation existing on July 1, 1981, to add to, modify, or otherwise change its corporate name; or
    3. Abrogate or limit the law as to unfair competition or unfair trade practice nor derogate from the common law, principles of equity, or the statutes of this state or of the United States with respect to the right to acquire and protect trade names and trademarks.
  3. Any electric membership corporation which is precluded from using its corporate name in another state because such name is the same as or confusingly similar to that of an electric membership corporation or other corporation already authorized to transact business therein or to a name already reserved or registered in such state may amend its articles of incorporation to add to its corporate name, solely for use in such other state, a word, abbreviation, or other distinctive and distinguishing element (such as, for example, the state of its incorporation in parentheses) as may be necessary to resolve any reasonable confusion between the two names. Such amendment shall set forth the state or states as to which it shall apply; and the corporate name with such additions shall be the name of the electric membership corporation in such other state or states and shall be used in all of its dealings with the officials of such state or states and in the conduct of its business and affairs in such state or states.
  4. The words "electric membership corporation" shall not be used in the corporate name of corporations organized under the laws of this state, or authorized to do business in this state, other than electric membership corporations.

(Ga. L. 1937, p. 644, § 7; Code 1933, § 34C-301, enacted by Ga. L. 1981, p. 1587, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 18 Am. Jur. 2d, Corporations, §§ 273, 277, 283, 284, 286-294, 296-299.

C.J.S.

- 18 C.J.S., Corporations, §§ 98-105.

46-3-221. Reservation of names.

  1. The exclusive right to the use of a corporate name may be reserved by:
    1. Any person intending to organize an electric membership corporation under this article;
    2. Any electric membership corporation intending to change its name;
    3. Any foreign electric cooperative intending to make application for a certificate of authority to transact business in this state;
    4. Any foreign electric cooperative authorized to transact business in this state and intending to change its name; or
    5. Any person intending to organize a foreign electric cooperative and intending to have such foreign electric cooperative make application for a certificate of authority to transact business in this state.
  2. The reservation shall be made by making application to the Secretary of State to reserve a specified corporate name. If the Secretary of State finds that the name is available for corporate use, he shall reserve the name for the exclusive use of the applicant for a period of four calendar months from the date of filing. An extension of this period may be granted by the Secretary of State for good cause shown.
  3. Any person or electric membership corporation acquiring the right to use the corporate name of an electric membership corporation or other domestic corporation or of a foreign corporation or foreign electric cooperative authorized to transact business in this state may, on furnishing the Secretary of State satisfactory evidence of such acquisition, reserve the exclusive right to such corporate name for a period of five years.
  4. The right to the exclusive use of a specified corporate name reserved as provided in this Code section may be transferred to any person by filing in the office of the Secretary of State a notice of such transfer, executed by the applicant for whom the name was reserved and specifying the name and address of the transferee.
  5. The Secretary of State may revoke any reservation if, after hearing in his office, he finds that the application therefor or any transfer was not made in good faith.

(Code 1933, § 34C-302, enacted by Ga. L. 1981, p. 1587, § 1.)

PART 4 R EGISTERED OFFICE, REGISTERED AGENTS, SERVICE OF PROCESS, AND VENUE

46-3-240. Registered office and registered agent.

  1. Each electric membership corporation shall have and continuously maintain in this state:
    1. A registered office which may be, but need not be, the same as its place of business; and
    2. A registered agent, which agent may be:
      1. A natural person residing in this state whose business office is identical with such registered office; or
      2. A domestic corporation or a foreign corporation authorized to transact business in this state, such domestic or foreign corporation having a business office identical with such registered office.
  2. The Secretary of State shall maintain current records, alphabetically arranged by corporate name, of the address of each electric membership corporation's registered office and of the name and address of each electric membership corporation's registered agent.
  3. No registered agent shall be appointed without his or its prior written consent. Such written consent shall be filed with or as part of the document first appointing any registered agent and shall be in such form as the Secretary of State may prescribe.

(Code 1933, § 34C-401, enacted by Ga. L. 1981, p. 1587, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 18 Am. Jur. 2d, Corporations, § 306. 19 Am. Jur. 2d, Corporations, §§ 2195, 2196, 2202, 2206, 2212, 2844, 2903.

C.J.S.

- 19 C.J.S., Corporations, § 2053.

46-3-241. Change of registered office or registered agent.

  1. An electric membership corporation may change its registered office or change its registered agent, or both, by executing and filing in the office of the Secretary of State a statement setting forth:
    1. The name of the electric membership corporation;
    2. The address of its then registered office;
    3. If the address of its registered office is to be changed, the new address of the registered office;
    4. The name of its then registered agent;
    5. If its registered agent is to be changed, the name of its successor registered agent and the written consent of such successor agent to his appointment; and
    6. That the address of its registered office and the address of the business office of its registered agent, as changed, will be identical.
  2. If the Secretary of State finds that such statement conforms to subsection (a) of this Code section, he shall file such statement in his office; and upon such filing, the change of address of the registered office or the change of the registered agent, or both, as the case may be, shall become effective.
  3. Any registered agent of an electric membership corporation may resign as such agent upon filing a written notice thereof with the Secretary of State. The appointment of such agent shall terminate upon the expiration of 30 days after receipt of such notice by the Secretary of State. There shall be attached to such notice an affidavit of such agent, if an individual, or of an officer thereof, if a corporation, that at least ten days prior to the date of filing such notice a written notice of the agent's intention to resign was mailed or delivered to the president, secretary, or treasurer of the electric membership corporation for which such agent is acting. Upon such resignation's becoming effective, the address of the business office of the resigned registered agent shall no longer be the registered office of the electric membership corporation.
  4. A registered agent may change his or its business address and the address of the registered office of any electric membership corporation of which he or it is registered agent to another place within the same county by filing a statement as required in subsection (a) of this Code section, except that such statement need be signed only by the registered agent and need not be responsive to paragraph (5) of subsection (a) of this Code section and must state that a copy of the statement has been mailed or delivered to a representative of such electric membership corporation other than the notifying registered agent.

(Code 1933, § 34C-402, enacted by Ga. L. 1981, p. 1587, § 1.)

46-3-242. Service of process on electric membership corporations.

  1. The registered agent appointed by an electric membership corporation pursuant to Code Section 46-3-240 shall be an agent of the electric membership corporation upon whom any process, notice, or demand required or permitted by law to be served upon the electric membership corporation may be served in the manner provided by law for the service of a summons and complaint.
  2. Whenever an electric membership corporation fails to appoint or maintain a registered agent in this state, or whenever its registered agent cannot with reasonable diligence be found at the registered office, then the Secretary of State shall be an agent of such electric membership corporation upon whom any process, notice, or demand may be served. Service on the Secretary of State of any such process, notice, or demand shall be made by delivering to and leaving with him, or with any person having charge of the corporation department of his office, or with any other person or persons designated by the Secretary of State to receive such service, duplicate copies of such process, notice, or demand. In the event any such process, notice, or demand is served on the Secretary of State, he shall immediately cause one of the copies thereof to be forwarded by registered or certified mail or statutory overnight delivery, addressed to the electric membership corporation at its registered office or, if there is no registered office, to the last known address of the electric membership corporation or to an officer listed on the most recent annual report filed with the Secretary of State or, if none, to any officer, director, or incorporator of the electric membership corporation as shown by the records of the Secretary of State. Any service so had on the Secretary of State shall be answerable not more than 30 days from the date so mailed by the Secretary of State. The provisions of this subsection may be used notwithstanding any inconsistent provisions of Chapter 11 of Title 9, the "Georgia Civil Practice Act."
  3. The Secretary of State shall keep a record of all processes, notices, and demands served upon him under this Code section and shall record therein the time of such service and his action with reference thereto.
  4. Nothing in this Code section shall limit or affect the right to serve any process, notice, or demand required or permitted by law to be served on an electric membership corporation in any other manner permitted by law.

(Code 1933, § 34C-403, enacted by Ga. L. 1981, p. 1587, § 1; Ga. L. 2000, p. 1589, § 3.)

Editor's notes.

- Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the amendment to subsection (b) is applicable with respect to notices delivered on or after July 1, 2000.

RESEARCH REFERENCES

Am. Jur. 2d.

- 19 Am. Jur. 2d, Corporations, §§ 2192, 2194-2208, 2210-2214. 62B Am. Jur. 2d, Process, §§ 266, 267.

C.J.S.

- 19 C.J.S., Corporations, § 580. 29 C.J.S., Electricity, § 59.

46-3-243. Venue in proceedings against electric membership corporations and foreign electric cooperatives generally.

  1. Notwithstanding Code Section 46-1-2, venue in proceedings against an electric membership corporation or foreign electric cooperative shall be determined in accordance with the Constitution of Georgia and this Code section.
  2. Unless otherwise required by the Constitution of Georgia, an electric membership corporation or foreign electric cooperative may be sued only in the county of its residence, as described below:
    1. Each electric membership corporation and each foreign electric cooperative authorized to transact business in this state shall be deemed to reside in the county where its registered office is maintained. If any such electric membership corporation or foreign electric cooperative fails to maintain a registered office, it shall be deemed to reside in the county in this state where its last-named registered office or principal office, as shown by the records of the Secretary of State, was maintained;
    2. Each electric membership corporation and each foreign electric cooperative authorized to transact business in this state shall be deemed to reside and may be sued on contracts in the county in which the contract sought to be enforced was made or is to be performed, if it has an office and transacts business in that county;
    3. Each electric membership corporation and each foreign electric cooperative authorized to transact business in this state shall be deemed to reside, and may be sued for damages because of torts, wrong, or injury done, in the county where the cause of action originated, if it has an office and transacts business in that county.

(Code 1933, § 34C-404, enacted by Ga. L. 1981, p. 1587, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 19 Am. Jur. 2d, Corporations, §§ 2180-2184, 2186, 2188, 2189, 2191.

C.J.S.

- 29 C.J.S., Electricity, § 59.

PART 5 M EMBERS

46-3-260. Qualifications of members; provision by articles of incorporation or bylaws for transfer, classification, and termination of memberships.

All persons who may lawfully receive service from an electric membership corporation and who are receiving or have agreed to receive such service shall be members therein, subject to complying with such additional conditions and requirements for membership as are set forth in the articles of incorporation or bylaws of the electric membership corporation. The articles of incorporation or bylaws may also provide criteria for, procedures for, and limitations upon the transfer, classification, and termination of memberships in an electric membership corporation.

(Ga. L. 1937, p. 644, § 10; Code 1933, § 34C-501, enacted by Ga. L. 1981, p. 1587, § 1.)

JUDICIAL DECISIONS

It is not required that a transmission line serve more than one member. Hagans v. Excelsior Elec. Membership Corp., 207 Ga. 53, 60 S.E.2d 162 (1950).

Fact that property used as resort does not prevent owner from becoming member.

- The fact that an applicant's property is used for a fishing camp or pleasure resort, and not as a farm home, permanent dwelling, or place of business, does not prevent the applicant becoming a member of the corporation and receiving electric service, or the corporation from furnishing electric energy to the applicant. Hagans v. Excelsior Elec. Membership Corp., 207 Ga. 53, 60 S.E.2d 162 (1950).

Cited in Georgia Power Co. v. Okefenokee Rural Elec. Membership Corp., 217 Ga. 219, 121 S.E.2d 777 (1961); Savannah Elec. & Power Co. v. Planters Elec. Membership Corp., 217 Ga. 842, 125 S.E.2d 651 (1962); Rosser v. Clyatt, 348 Ga. App. 40, 821 S.E.2d 140 (2018).

RESEARCH REFERENCES

Am. Jur. 2d.

- 18 Am. Jur. 2d, Cooperative Associations, §§ 14, 21. 27A Am. Jur. 2d, Energy and Power Sources, §§ 43, 45.

C.J.S.

- 29 C.J.S., Electricity, § 10.

ALR.

- Duty of mutual association, nonprofit organization or co-operative to furnish utilities services, 56 A.L.R.2d 413.

46-3-261. Liability of members.

A member shall not, solely by virtue of his status as a member, be liable for the debts of an electric membership corporation; and the property of the member shall not, solely by virtue of his status as a member, be subject to attachment, garnishment, execution, or other collection procedure for such debts.

(Code 1933, § 34C-502, enacted by Ga. L. 1981, p. 1587, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 18 Am. Jur. 2d, Corporations, §§ 13, 30, 33, 56-60, 468. 27A Am. Jur. 2d, Energy and Power Sources, § 45.

C.J.S.

- 18 C.J.S., Corporations, § 414.

46-3-262. Meetings of members generally.

  1. Meetings of members may be held at such place within the service area of the electric membership corporation as may be provided in the bylaws. In the absence of any such provision, all meetings shall be held at a place within the service area of the electric membership corporation designated by the board of directors or, if no place is so designated, then at the registered office of the electric membership corporation in this state.
  2. An annual meeting of the members shall be held at such time as may be provided in the bylaws. In the absence of such designation, the annual meeting shall be held on the second Tuesday of the fourth month following the end of the fiscal year of the electric membership corporation or, if such day is a legal holiday, the next following business day. Failure to hold the annual meeting shall not work a forfeiture; nor shall such failure affect otherwise valid corporate acts. If the electric membership corporation shall fail or refuse to hold the annual meeting on the date provided therefor pursuant to the bylaws or, in the absence of such designation, on the date provided in this Code section and shall thereafter also fail or refuse to hold the annual meeting within 60 days after being requested by any member to do so, the superior court of the county where the registered office of the electric membership corporation is located may, after notice to the electric membership corporation, order a substitute annual meeting to be held upon the application of such member. The superior court may issue such orders as may be appropriate, including, without limitation, orders designating the time and place of such meeting, the record date for determination of members entitled to vote, and the form of notice of such meeting.
  3. Special meetings of members or a special meeting in lieu of the annual meeting of members may be called by the president, the chairman of the board of directors, the board of directors, or such other officers or persons as may be provided in the articles of incorporation or bylaws, or, in the event there are no officers or directors, then by any member. Special meetings of members or a special meeting in lieu of the annual meeting of members shall be called by the electric membership corporation upon the written request of not less than 10 percent of the members of the electric membership corporation.
  4. Any action required by this article to be taken at a meeting of members of an electric membership corporation, or any action which may be taken at a meeting of members, may be taken without a meeting if written consent setting forth the action so taken shall be signed by all the members. Such consent shall have the same force and effect as a unanimous vote of members and may be stated as such in any articles or document filed with the Secretary of State under this article, except that no consent shall be effective as approval of a plan of merger or plan of consolidation pursuant to Part 10 of this article unless:
    1. Prior to the execution of the consent, the members shall have been given:
      1. A copy of the plan of merger or consolidation or an outline of the material features of the plan; and
      2. A copy of the most recent annual balance sheet and an annual profit and loss statement, or comparable financial statements, of each of the merging or consolidating electric membership corporations or of the merging or consolidating electric membership corporation and foreign electric cooperative, as the case may be; or
    2. The written consent itself conspicuously and specifically states that waiver of the right to receive such information is expressly made.
  5. Unless otherwise provided in the articles of incorporation or bylaws of the electric membership corporation, meetings of the members shall be conducted in accordance with the latest edition of Robert's Rules of Order; provided, however, that failure to so conduct any meeting shall not render invalid any action taken at such meeting unless objection citing such failure is made at the time such action is taken.

(Ga. L. 1937, p. 644, § 12; Ga. L. 1953, Nov.-Dec. Sess., p. 359, § 1; Code 1933, § 34C-505, enacted by Ga. L. 1981, p. 1587, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 18 Am. Jur. 2d, Corporations, § 746. 19 Am. Jur. 2d, Corporations, §§ 948, 986, 1159, 1371.

C.J.S.

- 18 C.J.S., Corporations, §§ 362-372, 375-383, 385-393, 395, 396.

46-3-263. Notice of members' meetings.

  1. Written notice stating the place, day, and hour of the annual meeting of members and, in case of a special meeting, the purpose or purposes for which the meeting is called shall be provided not less than five nor more than 90 days before the date of the meeting by any reasonable means, by or at the direction of the president, the secretary, or the officer or persons calling the meeting, to each member of record entitled to vote at such meeting. Reasonable means of providing such notice shall include, but not be limited to, United States mail, personal delivery, electric membership corporation newsletter, or member monthly service bill. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail with adequate prepaid postage thereon, addressed to the member at his address as it appears on the record books at the electric membership corporation; provided, however, that if notice is mailed by other than first-class mail, it shall be deemed to be delivered five days from the date of mailing. Personal delivery may be either by personal delivery to the member or by leaving such notice in a conspicuous place at the member's address as it appears on the record books of the electric membership corporation or at the premises served.
  2. At an annual meeting of members, including any substitute annual meeting ordered in accordance with Code Section 46-3-262, any matter relating to the affairs of the electric membership corporation, whether or not stated in the notice of the meeting, may be brought up for action, except matters which this article, the bylaws, or articles of incorporation require to be stated in the notice of the meeting.
  3. When a meeting is adjourned to another time or place, it shall not be necessary, unless the bylaws require otherwise, to give any notice of the adjourned meeting if the time and place to which the meeting is adjourned are announced at the meeting at which the adjournment is taken; and at the adjourned meeting, any business may be transacted that might have been transacted on the original date of the meeting. If, however, after the adjournment the board fixes a new record date for the adjourned meeting, a notice of the adjourned meeting shall be given, in compliance with subsection (a) of this Code section, to each member of record on the new record date who is entitled to vote at such meeting.
  4. Notice of a meeting of members need not be given to any member who signs a waiver of notice, in person or by proxy, either before or after the meeting. Unless required by the bylaws, neither the business transacted nor the purpose of the meeting need be specified in the waiver, except that any waiver of the notice of a meeting of members required with respect to a plan of merger or a plan of consolidation shall not be effective unless:
    1. Prior to execution of the waiver, the member signing the waiver shall have been given:
      1. A copy of the plan of merger or consolidation or an outline of the material features of the plan; and
      2. A copy of the most recent annual balance sheet and annual profit and loss statement, or comparable financial statements, of each of the merging or consolidating electric membership corporations or of the merging or consolidating electric membership corporation and foreign electric cooperative, as the case may be; or
    2. The waiver itself conspicuously and specifically states that waiver of the right to receive such information is expressly made.
  5. Attendance of a member at a meeting, either in person or by proxy, shall of itself constitute waiver of notice and waiver of any and all objections to the place of the meeting, the time of the meeting, or the manner in which it has been called or convened, except when a member attends a meeting solely for the purpose of stating, at the beginning of the meeting, any such objection or objections to the transaction of business.

(Code 1933, § 34C-507, enacted by Ga. L. 1981, p. 1587, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 19 Am. Jur. 2d, Corporations, §§ 963-967, 969-983, 985, 1368-1370, 1436.

C.J.S.

- 18 C.J.S., Corporations, §§ 365-367.

46-3-264. Closing of record books and fixing of record date.

  1. For the purpose of determining members entitled to notice of or to vote at any meeting of members or any adjournment thereof, or in order to make a determination of members for any other proper purpose, the board of directors of an electric membership corporation may provide that the membership books shall be closed for a stated period not to exceed 90 days.
  2. In lieu of closing the membership books, the bylaws or (in the absence of any applicable bylaws) the board of directors may fix in advance a date as the record date for any such determination of members, such date in any case to be not more than 90 days prior to the date on which the particular action requiring such determination of members is to be taken.
  3. If the membership books are not closed and no record date is fixed for the determination of members entitled to notice of or to vote at a meeting of members, the date on which notice of the meeting is mailed to all of the members shall be the record date for such determination of membership or, if such notice is not mailed to all of the members on the same date, the date ten days prior to the meeting shall be the record date for such determination of membership.
  4. When the determination of members entitled to vote at any meeting of the members has been made as provided in this Code section, such determination shall apply to any adjournment thereof unless the board of directors fixes a new record date under this Code section for the adjourned meeting.

(Code 1933, § 34C-511, enacted by Ga. L. 1981, p. 1587, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 19 Am. Jur. 2d, Corporations, §§ 1024-1026, 1030-1033.

C.J.S.

- 18 C.J.S., Corporations, §§ 375-377.

46-3-265. Quorum of members; adjournment of meeting by majority of members represented at meeting.

  1. Unless otherwise provided in the articles of incorporation or in bylaws adopted by the members, 10 percent of the members entitled to vote shall constitute a quorum at a meeting of members.
  2. If a quorum is present, the affirmative vote of a majority of the members represented at the meeting shall be the act of the membership unless the vote of a greater number is required by this article, the articles of incorporation, or the bylaws.
  3. When a quorum is once present to organize a meeting, the members present may continue to do business at the meeting, or at any adjournment thereof, notwithstanding the withdrawal of enough members to leave less than a quorum.
  4. A majority of the members represented at a meeting, whether or not a quorum is present, may adjourn such meeting from time to time.

(Code 1933, § 34C-509, enacted by Ga. L. 1981, p. 1587, § 1.)

JUDICIAL DECISIONS

Proxy voting amendment violated settlement agreement.

- Electric membership corporation (EMC) board's proxy voting bylaw amendment violated the terms of a settlement agreement reached between the EMC and the corporation's members because the amendment significantly changed the conditions under which the parties' agreed-upon plan for proposing proxy voting to the members was implemented. It therefore violated the spirit if not the letter of the agreement in contravention of O.C.G.A. § 13-4-20. Brown v. Pounds, 289 Ga. 338, 711 S.E.2d 646 (2011).

RESEARCH REFERENCES

Am. Jur. 2d.

- 19 Am. Jur. 2d, Corporations, §§ 993-998, 1012-1014, 1372, 1373.

C.J.S.

- 18 C.J.S., Corporations, § 370.

46-3-266. Voting by members generally.

  1. A member shall be entitled to only one vote in the exercise of his rights as a member of an electric membership corporation.
  2. No member shall have the right to cumulate his votes by giving one candidate a vote or votes equal to his vote multiplied by the number of directors to be elected or by distributing such votes on the same principle among any number of such candidates.
  3. The chairman of the board, the president, any vice-president, the secretary, or the treasurer or other officer of a corporation, club, school, church, or unincorporated association which is a member of an electric membership corporation shall be deemed by the electric membership corporation to have authority to vote such membership and to execute proxies and written waivers and consents in relation thereto, unless before a vote is taken or a waiver or consent is acted upon it is made to appear by a certified copy of the bylaws or resolution of the board of directors, executive committee, or other governing body of the corporation, club, school, church, or unincorporated association holding such membership that such authority is vested in some other officer or person. In the absence of such certification, a person executing any such proxy, waiver, or consent or presenting himself at a meeting as one of such officers of such a member shall, for the purpose of this Code section, be deemed prima-facie to be duly elected, qualified, and acting as such officer and to be fully authorized to so act. In case of conflicting representation, such a member shall be deemed to be represented by its senior officer in the order first stated in this subsection.
  4. Unless it is made to appear otherwise by an affidavit, court order, or other document, or by the instrument creating the position, the following persons shall be deemed to be authorized to vote a membership or execute a proxy, waiver, or consent in relation thereto:
    1. The administrator or executor of an estate which is a member;
    2. A guardian of a member; or
    3. A trustee in whose name a membership is held.
  5. If more than one person holds a position described in paragraphs (1) through (3) of subsection (d) of this Code section with respect to the same membership or if a membership is held by two or more persons, whether as fiduciaries, joint tenants, tenants in common, tenants in partnership, or otherwise, then unless the instrument or order appointing them or creating the tenancy otherwise directs and a copy thereof is filed with the secretary of the electric membership corporation or unless the articles of incorporation or bylaws of the electric membership corporation otherwise provide, their acts with respect to voting shall have the following effect:
    1. If only one votes, his act binds all;
    2. If more than one vote, the act of the majority so voting binds all;
    3. If more than one vote and the vote is evenly split, each faction shall be entitled to vote the membership in question proportionally;
  6. The principles of subsection (e) of this Code section shall apply, insofar as possible, to the execution of proxies, waivers, consents, or objections and for the purpose of ascertaining the presence of a quorum.
  7. If there is reasonable doubt as to the person qualified to cast the vote of a member or to execute a proxy, waiver, or consent on behalf of a member, the electric membership corporation may deny the right of such member to vote or to execute a proxy, waiver, or consent until sufficient action has been taken by such member to eliminate the uncertainty.

(Ga. L. 1937, p. 644, § 9; Code 1933, § 34C-503, enacted by Ga. L. 1981, p. 1587, § 1.)

JUDICIAL DECISIONS

Cited in Rosser v. Clyatt, 348 Ga. App. 40, 821 S.E.2d 140 (2018).

RESEARCH REFERENCES

Am. Jur. 2d.

- 18 Am. Jur. 2d, Cooperative Associations, §§ 2, 14, 15, 21, 26. 19 Am. Jur. 2d, Corporations, §§ 987, 988, 999-1004, 1006, 1007, 1009-1011, 1015-1026, 1030-1033, 1375, 1376, 1379-1381.

46-3-267. Effect of voting requirements provided for in articles of incorporation or bylaws.

  1. Whenever, with respect to any action to be taken by the members of an electric membership corporation, the articles of incorporation or bylaws require the vote or concurrence of a greater number of the members than required by this article with respect to such action, the provisions of the articles of incorporation or bylaws shall control.
  2. Any such provision in the articles of incorporation or bylaws may not itself be amended by a vote less than the vote prescribed in such provision.
  3. The authorization or taking of any action by vote or concurrence of the members may be rescinded or revoked by the same vote or concurrence as at the time of rescission or revocation would be required to authorize or take such action in the first instance, subject to the contract rights of other persons.

(Code 1933, § 34C-508, enacted by Ga. L. 1981, p. 1587, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d.

- 19 Am. Jur. 2d, Corporations, §§ 1004, 1006, 1379.

C.J.S.

- 18 C.J.S., Corporations, § 383.

46-3-268. Voting by proxy generally.

  1. To the extent, and only to the extent, authorized by the articles of incorporation or bylaws, a member may be represented at a meeting of the membership, vote thereat, and execute consents or waivers by one or more persons authorized by a written proxy executed by such member or by his attorney in fact. The exercise of such rights by a person pursuant to a written proxy shall be subject to such limitations and in accordance with such procedures as may be provided in the articles of incorporation or bylaws. The exercise of such rights shall, in any event, be subject to the following limitations and procedures:
    1. No proxy shall be valid after the expiration of 11 months from the date thereof unless otherwise provided in the proxy. Every proxy shall be revocable at the pleasure of the person executing it;
    2. No proxy shall be valid if the person granting it is no longer a member or his rights as a member have been lawfully suspended;
    3. Subject to the limitations of paragraphs (1) and (2) of this subsection, any proxy duly executed is not revoked and continues in full force and effect until an instrument revoking it or a duly executed proxy bearing a later date is received by the secretary of the electric membership corporation. A proxy is not revoked by the death or incapacity of the maker unless, before the vote is counted or the authority is exercised, written notice of such death or incapacity is received by the secretary of the electric membership corporation. Notwithstanding that a valid proxy is outstanding, the powers of the proxy holder are suspended if the maker is present at a meeting of the members and elects to vote in person;
    4. If the proxy for the same member confers authority upon two or more persons and does not otherwise provide, a majority of such persons present at the meeting, or if only one is present, then that one, may exercise all the powers conferred by the proxy; but if the proxy holders present at the meeting are divided as to the right and manner of voting in any particular case and there is no majority, the vote of the member granting the proxy shall be prorated;
    5. If the proxy expressly provides, any proxy holder may appoint in writing a substitute to act in his place;
    6. A member shall not sell his vote or issue a proxy to vote to any person for any sum of money or anything of value. Any proxy issued in exchange for money or anything of value shall be void.
  2. If proxy voting is authorized in the articles of incorporation or bylaws of the electric membership corporation, attendance at a members' meeting by a proxy holder authorized to vote for a member shall be deemed to be attendance by such member for purposes of determining whether a quorum is present and shall otherwise be considered personal attendance by such member.

(Ga. L. 1937, p. 644, § 9; Code 1933, § 34C-504, enacted by Ga. L. 1981, p. 1587, § 1.)

JUDICIAL DECISIONS

Proxy voting amendment violated settlement agreement.

- Electric membership corporation (EMC) board's proxy voting bylaw amendment violated the terms of a settlement agreement reached between the EMC and the EMC's members because the amendment significantly changed the conditions under which the parties' agreed-upon plan for proposing proxy voting to the members was implemented. It therefore violated the spirit if not the letter of the agreement in contravention of O.C.G.A. § 13-4-20. Brown v. Pounds, 289 Ga. 338, 711 S.E.2d 646 (2011).

RESEARCH REFERENCES

Am. Jur. 2d.

- 18 Am. Jur. 2d, Cooperative Associations, § 15. 19 Am. Jur. 2d, Corporations, §§ 1069-1080, 1082-1084, 1086-1097, 1099-1102, 1112, 1114, 1386.

C.J.S.

- 18 C.J.S., Corporations, §§ 385-393.

46-3-269. Dissenters' rights.

No member of an electric membership corporation shall, by dissenting from any merger or consolidation to which the electric membership corporation of which he is a member is a party or otherwise, any sale of all or substantially all the assets of such electric membership corporation, or any amendment of such electric membership corporation's articles of incorporation, have the right to receive any consideration for his membership interest except as provided in the plan of merger or consolidation, the terms of sale, or the amendment of the articles of incorporation.

(Code 1933, § 34C-1803, enacted by Ga. L. 1981, p. 1587, § 1.)

46-3-270. Credentials and elections committee.

  1. The bylaws of an electric membership corporation may provide for the appointment of a credentials and elections committee composed of members who are not officers or directors of the electric membership corporation or candidates for such positions. This committee shall be responsible for the counting of all ballots or votes cast and for ruling on the effect of any ballots or votes irregularly marked or cast and on all other questions that may arise relating to member voting and the election of directors, including, but not limited to, the validity of petitions of nomination or qualification of candidates and the regularity of the nomination and election of directors. The procedures for the appointment and qualification of the members of such committee shall be as provided in the bylaws authorizing and establishing such committee. Any committee member related within the third degree by affinity or consanguinity, computed according to the civil law, to any candidate for director shall refrain from participating in any deliberation or vote of the committee concerning such candidate.
  2. On request of the person presiding at the meeting of the members or on the request of any member entitled to vote thereat, such committee shall make a report in writing of any challenge, question, count, or matter determined by the committee and shall execute a certificate of any fact found by them. Any such report or certificate made by them shall be prima-facie evidence of the facts stated and of the vote as certified by them.

(Code 1933, § 34C-506, enacted by Ga. L. 1981, p. 1587, § 1.)

46-3-271. Maintenance of books and records of account; inspection of books and records by members; preparation of annual financial statements.

  1. Each electric membership corporation shall keep correct and complete books and records of account, shall keep minutes of the proceedings of its members and board of directors, and shall keep at its registered office or principal place of business a record of its members, giving the names and addresses of all members and the number of members.
  2. Subject to the limitations set forth in this Code section and in other applicable laws, any person who is a member of the electric membership corporation in good standing shall, upon written demand stating the purpose thereof and the books and records sought to be examined, have the right to examine, in person or by agent or attorney, at any reasonable time or times, for any proper purpose, its books and records and, at his own expense, may make extracts therefrom. Any such inspection, however, may be denied or limited upon one or more of the following grounds:
    1. The member refuses to warrant and furnish to the electric membership corporation an affidavit that such inspection is desired for a purpose reasonably related to the business of the electric membership corporation;
    2. The inspection seeks inform