Provisions Applicable to Municipal Corporations Only.

Provisions Applicable to Counties and Municipal Corporations.

Provisions Applicable to Counties, Municipal Corporations, and Other Governmental Entities.

Cross references. - Definition of term "county governing authority" as used in laws of state, § 1-3-3(7) .

Establishment, powers, duties, and responsibilities of county board of health in each county of state, T. 31, C. 3.

Jurisdiction and authority of counties as to public roads generally, § 32-4-40 et seq.

Authority of counties to license roadhouses, public dance halls, and similar establishments, § 43-21-50 et seq.

Prohibition against requiring municipal or county officers or employees to reside within boundaries of municipality or county, § 45-2-5 .

Purchase of liability insurance for members of municipal, county, or other governing bodies, § 45-9-20 et seq.

Contracts between counties and State Personnel Board relating to inclusion of county employees in health insurance plans established under T. 45, C. 18, A. 1.

County taxation generally, § 48-5-220 et seq.

Creation, powers, and duties of area planning and development commissions, § 50-8-30 et seq.

Law reviews. - For article, "The Use of the Police Power by Local Governments and Some Problems of Intergovernmental Relations," see 8 J. Pub. L. 109 (1959). For article, "Discretion in Georgia Local Government Law," see 8 Ga. L. Rev. 614 (1974). For article analyzing the changing relationship between state and local governments in Georgia in light of "Amendment 19," see 9 Ga. L. Rev. 757 (1975). For article, "Selected Oddities in Georgia Municipal Law," see 9 Ga. L. Rev. 783 (1975). For article discussing developments in Georgia's local government law in 1976 and 1977, see 29 Mercer L. Rev. 189 (1977). For article surveying Georgia cases in the area of local government law from June 1977 through May 1978, see 30 Mercer L. Rev. 133 (1978). For annual survey on local government law, see 36 Mercer L. Rev. 255 (1984). For article surveying local government law in 1984-1985, see 37 Mercer L. Rev. 313 (1985). For annual survey of local government law, see 39 Mercer L. Rev. 275 (1987). For annual survey of local government law, see 40 Mercer L. Rev. 303 (1988). For annual survey of local government law, see 42 Mercer L. Rev. 359 (1990). For annual survey of local government law, see 43 Mercer L. Rev. 317 (1991). For annual survey article on local government law, see 45 Mercer L. Rev. 325 (1993). For annual survey article on local government law, see 46 Mercer L. Rev. 363 (1994). For student article, "Georgia Local Government Law: Court Resolution of County Government Disagreements," see 46 Mercer L. Rev. 599 (1994). For annual survey article on local government law, see 49 Mercer L. Rev. 215 (1997). For annual survey article on local government law, see 50 Mercer L. Rev. 263 (1998). For annual survey article discussing local government law, see 51 Mercer L. Rev. 397 (1999). For annual survey article on local government law, see 52 Mercer L. Rev. 341 (2000). For article on cases in which the supreme court reversed the court of appeals on the subject of local government law, see 56 Mercer L. Rev. 1 (2004).

PROVISIONS APPLICABLE TO COUNTIES ONLY

CHAPTER 1 GENERAL PROVISIONS

Sec.

Law reviews. - For annual survey of local government law, see 35 Mercer L. Rev. 233 (1983).

RESEARCH REFERENCES

ALR. - Liability to refund local taxes as within coverage of liability insurance, 21 A.L.R.4th 895.

36-1-1. Names of counties.

The state is divided into 159 counties, whose boundaries and limits shall be ascertained by the several Acts laying off the same and those Acts amendatory thereof. The names of the counties are as follows: Appling, Atkinson, Bacon, Baker, Baldwin, Banks, Barrow, Bartow, Ben Hill, Berrien, Bibb, Bleckley, Brantley, Brooks, Bryan, Bulloch, Burke, Butts, Calhoun, Camden, Candler, Carroll, Catoosa, Charlton, Chatham, Chattahoochee, Chattooga, Cherokee, Clarke, Clay, Clayton, Clinch, Cobb, Coffee, Colquitt, Columbia, Cook, Coweta, Crawford, Crisp, Dade, Dawson, Decatur, DeKalb, Dodge, Dooly, Dougherty, Douglas, Early, Echols, Effingham, Elbert, Emanuel, Evans, Fannin, Fayette, Floyd, Forsyth, Franklin, Fulton, Gilmer, Glascock, Glynn, Gordon, Grady, Greene, Gwinnett, Habersham, Hall, Hancock, Haralson, Harris, Hart, Heard, Henry, Houston, Irwin, Jackson, Jasper, Jeff Davis, Jefferson, Jenkins, Johnson, Jones, Lamar, Lanier, Laurens, Lee, Liberty, Lincoln, Long, Lowndes, Lumpkin, Macon, Madison, Marion, McDuffie, McIntosh, Meriwether, Miller, Mitchell, Monroe, Montgomery, Morgan, Murray, Muscogee, Newton, Oconee, Oglethorpe, Paulding, Peach, Pickens, Pierce, Pike, Polk, Pulaski, Putnam, Quitman, Rabun, Randolph, Richmond, Rockdale, Schley, Screven, Seminole, Spalding, Stephens, Stewart, Sumter, Talbot, Taliaferro, Tattnall, Taylor, Telfair, Terrell, Thomas, Tift, Toombs, Towns, Treutlen, Troup, Turner, Twiggs, Union, Upson, Walker, Walton, Ware, Warren, Washington, Wayne, Webster, Wheeler, White, Whitfield, Wilcox, Wilkes, Wilkinson, and Worth.

(Orig. Code 1863, § 30; Code 1868, § 28; Code 1873, § 28; Code 1882, § 28; Civil Code 1895, § 29; Civil Code 1910, § 31; Code 1933, § 23-101.)

Cross references. - Limitation of number of counties to 159, Ga. Const. 1983, Art. IX, Sec. I, Para. II.

Prohibition of creation of new counties other than by consolidation or merger of existing counties, Ga. Const. 1983, Art. IX, Sec. I, Para. II.

Editor's notes. - For laws creating counties, changing county boundaries or names, or otherwise affecting counties, see the Local Laws Index of this Code.

JUDICIAL DECISIONS

Cited in Bearden v. Baldwin, 174 Ga. 191 , 162 S.E. 802 (1931).

OPINIONS OF THE ATTORNEY GENERAL

County name may be changed by statute. 1945-47 Op. Att'y Gen. p. 65.

36-1-2. Extent of jurisdiction of counties divided by water.

Whenever a stream of water is the boundary of a county, the jurisdiction of the county shall extend to the center of the main channel of the stream, provided that whenever a stream of water is the boundary of a county and such stream or a bank thereof is the boundary of the State of Georgia, the jurisdiction of the county shall extend to that point which is the boundary of the state.

(Orig. Code 1863, § 39; Code 1868, § 37; Code 1873, § 35; Code 1882, § 35; Civil Code 1895, § 30; Civil Code 1910, § 32; Code 1933, § 23-102; Ga. L. 1984, p. 131, § 1.)

Cross references. - Boundaries of counties generally, T. 36, C. 3.

Respective rights of owners of property divided by nonnavigable stream, § 44-8-2 .

Boundaries of state generally, T. 50, C. 2.

RESEARCH REFERENCES

Am. Jur. 2d. - 56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, § 26.

C.J.S. - 20 C.J.S., Counties, §§ 22, 23.

36-1-3. County a body corporate; power to sue and be sued generally.

Every county is a body corporate, with power to sue or be sued in any court.

(Orig. Code 1863, § 463; Code 1868, § 525; Code 1873, § 491; Code 1882, § 491; Civil Code 1895, § 340; Civil Code 1910, § 383; Code 1933, § 23-1501.)

Law reviews. - For article, "Quasi-Municipal Tort Liability in Georgia," see 6 Mercer L. Rev. 287 (1955). For article, "Actions for Wrongful Death in Georgia: Part Three and Four," see 21 Ga. B. J. 339 (1959). For note discussing governmental immunity from tort liability in Georgia, see 5 Ga. St. B. J. 494 (1969).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Extent of power conferred. - County, it is true, is a corporation. But this is only for certain specific purposes. Counties are, in fact, but quasi corporations, and this section of the Code is not to be understood as conferring any powers, except the right to sue and be sued, since the other powers are all conferred and regulated by other statutes and provisions of the Code. Millwood v. DeKalb County, 106 Ga. 743 , 32 S.E. 577 (1899).

County is a body corporate and may sue and be sued, but the county's functions are government, and it has no power except as conferred by statute. Town of Decatur v. DeKalb County, 130 Ga. 483 , 61 S.E. 23 (1908).

This section subjects the counties of this state to suit, but not to suits upon all causes of action. It does not make them generally liable to suits like individuals or as municipal corporations. Being political subdivisions of the state, they cannot be sued unless made subject to suit expressly or by necessary implication. Decatur County v. Praytor, Howton & Wood Contracting Co., 163 Ga. 929 , 137 S.E. 247 (1927).

Who may sue. - Right to sue a county is not restricted to citizens of this state. Board of Comm'rs v. Hurd, 49 Ga. 462 (1873).

Construction with Code Section 36-1-4 . - Former Code 1910, §§ 383 and 384 (see now O.C.G.A. §§ 36-1-3 and 36-1-4 ) must be construed together, and those statutes must receive a reasonable construction. Decatur County v. Praytor, Howton & Wood Contracting Co., 163 Ga. 929 , 137 S.E. 247 (1927).

County's violation of constitutional right raises cause of action. - Violation by a county of a constitutional right of the citizen must, by necessary implication, raise a cause of action in favor of the citizen against the county, unless some means of redress other than suit has been afforded by the legislature. Tounsel v. State Hwy. Dep't, 180 Ga. 112 , 178 S.E. 285 (1935).

Applicability of sovereign immunity in action between city and county. - In a suit by a city against a county, seeking a portion of tax revenue raised by the county from alcoholic beverage sales, there was a threshold question of whether sovereign immunity applied in suits between political subdivisions of the same sovereign (such as the city and the county), which the trial court had not addressed; therefore, remand was required. Clayton County v. City of College Park, 301 Ga. 653 , 803 S.E.2d 63 (2017).

Judicial notice. - Courts will take judicial cognizance of the fact that each county is a body corporate. Taylor v. State, 123 Ga. 133 , 51 S.E. 326 (1905).

Power to employ counsel. - County commissioners are authorized by clear implication to employ counsel for the county. Templeman v. Jeffries, 172 Ga. 895 , 159 S.E. 248 (1931).

Action by county for enforcement not authorized. - County did not have authority to pursue tort damages based on the county's complaint alleging that unlawful acts by the defendants, including "occupation of buildings without obtaining inspections or certificates of occupancy, zoning violations, building code, safety, and fire violations, operation of businesses in a residential zone, and the like," caused the county to spend money enforcing the county's laws and protecting the county's citizens. Torres v. Putnam County, 246 Ga. App. 544 , 541 S.E.2d 133 (2000).

Tort claims by county not authorized. - When a county had recovered, identified, and properly disposed of bodies found at a crematorium, O.C.G.A. § 36-1-3 did not authorize the county to recover the county's costs of doing so as compensatory damages in a tort action against the crematorium, funeral homes, and funeral directors alleging negligence and public nuisance claims. Walker County v. Tri-State Crematory, 284 Ga. App. 34 , 643 S.E.2d 324 (2007).

Relation between the county and the county attorney does not rest upon contract, but arises from appointment authorized by a legislative enactment. Templeman v. Jeffries, 172 Ga. 895 , 159 S.E. 248 (1931).

Cited in City of Dawson v. Terrell County, 38 Ga. App. 676 , 145 S.E. 465 (1928); State Hwy. Bd. v. Hall, 193 Ga. 717 , 20 S.E.2d 21 (1942); Ayers v. Franklin County, 73 Ga. App. 207 , 36 S.E.2d 110 (1945); State Hwy. Dep't v. Parker, 75 Ga. App. 237 , 43 S.E.2d 172 (1947); Norris v. Nixon, 78 Ga. App. 769 , 52 S.E.2d 529 (1949); Arnold v. Walton, 205 Ga. 606 , 54 S.E.2d 424 (1949); Stelling v. Richmond County, 81 Ga. App. 571 , 59 S.E.2d 414 (1950); Banks County v. Stark, 88 Ga. App. 368 , 77 S.E.2d 33 (1953); Seaboard Air Line R.R. v. County of Crisp, 280 F.2d 873 (5th Cir. 1960); Lowndes County v. Dasher, 229 Ga. 289 , 191 S.E.2d 82 (1972); Bibb County v. McDaniel, 127 Ga. App. 129 , 192 S.E.2d 544 (1972); Miree v. United States, 526 F.2d 679 (5th Cir. 1976); Georgia Insurers Insolvency Pool v. Elbert County, 258 Ga. 317 , 368 S.E.2d 500 (1988); Manders v. Lee, 338 F.3d 1304 (11th Cir. 2003).

Liability of Counties

No right given to sue for any breach of duty. - This section does not ex vi termini give a citizen a right to sue the county for the nonperformance of any duty. A county rests upon a different footing from cities and towns. Scales v. Ordinary of Chattahoochee County, 41 Ga. 225 (1870).

Liability based on statute or breach of valid contract. - County can always be sued upon any liability against the county created by statute, or for breach of any valid contract which the county is authorized by law to make. Decatur County v. Praytor, Howton & Wood Contracting Co., 163 Ga. 929 , 137 S.E. 247 (1927).

Supreme Court has long construed former Code 1933, §§ 23-1501 and 23-1502 (see now O.C.G.A. §§ 36-1-3 and 36-1-4 ) as permitting suits against counties based on contracts made pursuant to legislative authorization. PMS Constr. Co. v. DeKalb County, 243 Ga. 870 , 257 S.E.2d 285 (1979).

County not liable without constitutional or statutory cause of action. - Constitutional provision that a county is a body corporate and this section do not authorize a suit against a county for damages when the county is not made liable for such damages by the Constitution or by statute. Revels v. Tift County, 235 Ga. 333 , 219 S.E.2d 445 (1975).

Counties, as corporations, are mere subdivisions of the state, and the state is never subject to suit except by express enactment, and this is also true of subdivisions of the state. Tounsel v. State Hwy. Dep't, 180 Ga. 112 , 178 S.E. 285 (1935).

County, being a political division of the state, is not liable to be sued, unless special authority can be shown; it is incumbent upon the person filing the suit to bring a case within the legislative authority upon which the person relies to bring the suit. Tounsel v. State Hwy. Dep't, 180 Ga. 112 , 178 S.E. 285 (1935).

Whenever a county is by statute made liable for a given demand, an action against the county will lie therefor, though the statute does not in express terms authorize or provide for the bringing of such an action. Taylor v. Jenkins County, 116 Ga. App. 718 , 158 S.E.2d 322 (1967).

County not liable for tort of guard. - County is not responsible in damages for the tort of a guard in unlawfully beating a convict in the chain gang, or for the negligence of other guards in not protecting the convict from the unlawful beating. Tounsel v. State Hwy. Dep't, 180 Ga. 112 , 178 S.E. 285 (1935).

Procedure

Injunction available against governing officials. - Though suits by and against a county are properly brought in the name of the county, an injunction may be sought in a court of equity in an action which is brought against the governing officials of the county. Olley Valley Estates, Inc. v. Fussell, 232 Ga. 779 , 208 S.E.2d 801 (1974).

All suits by, or against, a county shall be in the name thereof. Commissioners of Rds. & Revenue v. Howard, 59 Ga. App. 451 , 1 S.E.2d 222 (1939).

RESEARCH REFERENCES

Am. Jur. 2d. - 56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, §§ 2, 8, 735, 740.

C.J.S. - 20 C.J.S., Counties, §§ 1 et seq., 410 et seq.

ALR. - County as subject to garnishment process, 60 A.L.R. 823 .

Power of city, town, or county or its officials to compromise claim, 105 A.L.R. 170 ; 15 A.L.R.2d 1359.

Right of governmental entity to maintain action for defamation, 45 A.L.R.3d 1315.

36-1-4. When county liable to be sued.

A county is not liable to suit for any cause of action unless made so by statute.

(Civil Code 1895, § 341; Civil Code 1910, § 384; Code 1933, § 23-1502.)

History of section. - This Code section is derived in part from the decisions in Hammond v. County of Richmond, 72 Ga. 188 (1883), and Smith v. Wilkes & McDuffie Counties, 79 Ga. 125 , 4 S.E. 20 (1887).

Law reviews. - For article, "Quasi-Municipal Tort Liability in Georgia," see 6 Mercer L. Rev. 287 (1955). For article, "Actions for Wrongful Death in Georgia: Parts Three and Four," see 21 Ga. B. J. 339 (1959). For article discussing necessity of liability insurance for Georgia counties and municipalities, and constitutional authority of the units to provide such insurance, see 25 Ga. B. J. 35 (1962). For article surveying tort liability insurance in Georgia local government law, see 24 Mercer L. Rev. 651 (1973). For article on insurance and indemnity for Georgia local government officers under Georgia law, see 13 Ga. L. Rev. 747 (1979). For survey article on local government law, see 34 Mercer L. Rev. 225 (1982). For article, "Defending the Lawsuit: A First-Round Checklist," see 22 Ga. St. B. J. 24 (1985). For annual survey of local government law, see 38 Mercer L. Rev. 289 (1986). For article, "Georgia Local Government Tort Liability: The 'Crisis' Conundrum," see 2 Ga. St. U. L. Rev. 19 (1986). For article, "Georgia County Liability: Nuisance or Not?," see 43 Mercer L. Rev. 1 (1991). For article, "Local Government Tort Liability: The Summer of '92," see 9 Ga. St. U. L. Rev. 405 (1993). For note discussing governmental immunity from tort liability in Georgia, see 5 Ga. St. B. J. 494 (1969). For note analyzing sovereign immunity in this state and proposing implementation of a waiver scheme and creation of a court of claims pursuant to Ga. Const. 1976, Art. VI, Sec. V, Para. I, see 27 Emory L.J. 717 (1978).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Code 1910, § 543 and former Code 1933, § 95-1001, are included in the annotations for this Code section.

Constitutionality. - This section does not violate the state and federal Constitutions. Revels v. Tift County, 235 Ga. 333 , 219 S.E.2d 445 (1975).

This section does not violate U.S. Const., amend. 14 or Ga. Const. 1945, Art. I, Sec. I, Para. III (see now Ga. Const. 1983, Art. I, Sec. I, Para. I). Williams v. Georgia Power Co., 233 Ga. 517 , 212 S.E.2d 348 (1975).

Codification of case law rule. - This section is a codification of the principal rule in Hammond v. County of Richmond, 72 Ga. 188 (1883), and Smith v. Wilkes & McDuffie Counties, 79 Ga. 125 , 4 S.E. 20 (1887). Lynch v. Harris County, 188 Ga. 651 , 4 S.E.2d 573 (1939).

Sovereign immunity still rule. - Supreme Court of this state has so often affirmed and acknowledged that the doctrine of sovereign immunity prevents a suit by a citizen against the state, or a political subdivision thereof, until it is hardly necessary to again formally assert this rule. Haber v. Fulton County, 124 Ga. App. 789 , 186 S.E.2d 152 (1971), overruled on other grounds, Cox v. Cox ex rel. State Dep't of Human Resources, 255 Ga. 6 , 334 S.E.2d 683 (1985).

Sovereign immunity recognized since common law. - Doctrine of sovereign immunity has been recognized in this state since the adoption of the common law. Hendon v. DeKalb County, 203 Ga. App. 750 , 417 S.E.2d 705 , cert. denied, 203 Ga. App. 906 , 417 S.E.2d 705 (1992).

Applicability of sovereign immunity in suit between county and city. - In a suit by a city against a county, seeking a portion of tax revenue raised by the county from alcoholic beverage sales, there was a threshold question of whether sovereign immunity applied in suits between political subdivisions of the same sovereign (such as the city and the county), which the trial court had not addressed; therefore, remand was required. Clayton County v. City of College Park, 301 Ga. 653 , 803 S.E.2d 63 (2017).

In a case involving taxation of alcoholic beverages, the city's claims against the county were not barred by sovereign immunity since the city and county were merely exercising their own respective home rule powers by collecting tax revenues for their own purposes, and neither was acting on behalf of the State of Georgia; thus, there was no sovereignty to be maintained. City of College Park v. Clayton County, 306 Ga. 301 , 830 S.E.2d 179 (2019).

Immunity statutory, not common law. - Unlike the immunity of the state which had been judicially created, the immunity of a county from suit is found in statutory law. Nelson v. Spalding County, 249 Ga. 334 , 290 S.E.2d 915 (1982).

Even if Ga. Const. 1976, Art. VI, Sec. V, Para. I (see now Ga. Const. 1983, Art. I, Sec. II, Para. IX) were not meant to reserve immunity for counties in all cases, such immunity has the additional support of O.C.G.A. § 36-1-4 . Nelson v. Spalding County, 249 Ga. 334 , 290 S.E.2d 915 (1982).

Extent of immunity. - Sovereign immunity enjoyed by a county extends to discretionary as well as ministerial functions and, indeed, even to personal injury claims based on nuisance. Early County v. Fincher, 184 Ga. App. 47 , 360 S.E.2d 602 , cert. denied, 184 Ga. App. 909 , 360 S.E.2d 602 (1987).

Sovereign immunity barred the plaintiff's claims against the defendant county because, under O.C.G.A. § 36-1-4 , a county was not liable to suit for any cause of action unless made so by statute, and the county's sovereign immunity had not been waived with respect to the claims asserted by the plaintiff. McRae v. Perry, F. Supp. 2d (S.D. Ga. Nov. 28, 2012).

O.C.G.A. § 36-1-4 includes actions brought under a theory of negligence. Schulze v. DeKalb County, 230 Ga. App. 305 , 496 S.E.2d 273 (1998).

Language of section broad and comprehensive. - Language could not be broader or more comprehensive, or more free from doubt, than the words of this section. When it says the county shall not be liable for any cause of action, the statute expressly negatives the idea of exceptions other than provided therein, to wit, "unless made so by statute." Wood v. Floyd County, 161 Ga. 743 , 131 S.E. 882 (1926).

General rule for liability. - Whenever a county is by statute made liable for a given demand, an action against the county will lie therefor, though the statute does not in express terms authorize or provide for the bringing of such an action. Decatur County v. Praytor, Howton & Wood Contracting Co., 163 Ga. 929 , 137 S.E. 247 (1927).

Negligence not sufficient for action against county. - Neither negligent performance of duties which the county authorities are compelled to perform, nor the negligent discharge of duties voluntarily assumed, except in cases provided by statute, gives a cause of action against the county. Millwood v. DeKalb County, 106 Ga. 743 , 32 S.E. 577 (1899); Mitchell County v. Dixon, 20 Ga. App. 21 , 92 S.E. 405 (1917).

County exempt from suit generally. - This section has the effect of exempting a county from liability to suit in the absence of a statute authorizing a suit for the breach of duty alleged, though that duty is one imposed on the county by statute. Wolf v. Upson County, 44 F.2d 925 (5th Cir. 1930).

County is exempt from suit except when the suit is specifically authorized by the Constitution and statutes. Bibb County v. Green, 42 Ga. App. 552 , 156 S.E. 745 (1931).

County is not liable to suit for any cause of action unless made so by statute. Hendon v. DeKalb County, 203 Ga. App. 750 , 417 S.E.2d 705 , cert. denied, 203 Ga. App. 906 , 417 S.E.2d 705 (1992).

Medical care for inmates. - Trial court correctly determined that the state law claims made against a county and against a sheriff and medical contract compliance administrator in their official capacities were barred because, although O.C.G.A. § 42-5-2(a) imposed upon the county the duty and cost of medical care for inmates in the county's custody, the statute did not waive sovereign immunity of the county or the county's agents or employees. Graham v. Cobb County, 316 Ga. App. 738 , 730 S.E.2d 439 (2012).

Counties, as corporations, are mere subdivisions of state, and the state is never suable except by express enactment, and this is also true of subdivisions of the state. Tounsel v. State Hwy. Dep't, 180 Ga. 112 , 178 S.E. 285 (1935).

County, being a political division of the state, is not liable to be sued unless special authority can be shown; it is incumbent upon the person filing the suit to bring a case within the legislative authority upon which the person relies to bring the suit. Tounsel v. State Hwy. Dep't, 180 Ga. 112 , 178 S.E. 285 (1935).

County in virtue of being a subdivision of the sovereign state "is not liable to suit for any cause of action unless made so by statute." For similar reason the State Highway Board (now State Transportation Board) is not so liable unless made so by law. Taylor v. Richmond County, 185 Ga. 610 , 196 S.E. 37 , answer conformed to, 57 Ga. App. 586 , 196 S.E. 303 (1938).

Doctrine of sovereign immunity also applies to political subdivisions of the state, including counties. Hendon v. DeKalb County, 203 Ga. App. 750 , 417 S.E.2d 705 , cert. denied, 203 Ga. App. 906 , 417 S.E.2d 705 (1992).

Rule for county liability different from that of city. - While it was true that the liability of cities on the cities' contracts was determined just as it was at common law and under former Code 1933, § 69-301 (see now O.C.G.A. § 36-33-1 ) and their liability as to torts conforms to the rule at common law, the rule of liability as to counties was different, in that former Code 1933, § 23-1502 (see now O.C.G.A. § 36-1-4 ) relaxed the rule which forbid altogether any suit against a county for any cause of action so as to authorize suits against the city when so authorized by express constitutional or statutory authority. Purser v. Dodge County, 188 Ga. 250 , 3 S.E.2d 574 , answer conformed to, 60 Ga. App. 316 , 3 S.E.2d 744 (1939).

Express authorization of liability not necessary. - Whenever a county is by statute made liable for a given demand, an action against the county will lie therefor, though the statute does not in express terms authorize or provide for the bringing of such an action. Taylor v. Jenkins County, 116 Ga. App. 718 , 158 S.E.2d 322 (1967).

Waiver of immunity. - Immunity provided to a county by O.C.G.A. § 36-1-4 is waived, pursuant to Ga. Const., 1983, Art. I, Sec. VI, Para. IX, when the county purchases a liability insurance policy. Early County v. Fincher, 184 Ga. App. 47 , 360 S.E.2d 602 , cert. denied, 184 Ga. App. 909 , 360 S.E.2d 602 (1987).

No constitutional or statutory authority for recovery of punitive damages. - Since damages recoverable in an action by a property owner whose property is harmed by a county for public purposes is a substitute for damages recoverable in a condemnation action, there is no constitutional or statutory authority for the recovery of punitive damages against a county. Fulton County v. Baranan, 240 Ga. 837 , 242 S.E.2d 617 (1978).

Without express authority by statute, county is not subject to garnishment. Dotterer v. Bowe, 84 Ga. 769 , 11 S.E. 896 (1890).

When county officials exceed powers. - When public officers, in discharging duties imposed upon the officers by law, undertake other duties not imposed by law, although intending it to be a benefit to the public, the latter, as represented by county governments, cannot be made responsible for torts or ultra vires contracts. Wood v. Floyd County, 161 Ga. 743 , 131 S.E. 882 (1926).

Acts done within scope of authority and without wilfulness, fraud, or malice. - Under sovereign immunity principles, a public officer or employee, acting within the scope of their authority and engaged in discretionary as opposed to ministerial functions, is entitled to immunity from suit provided the acts complained of are done within the scope of the officer's authority and without wilfulness, fraud, malice, or corruption. Hendon v. DeKalb County, 203 Ga. App. 750 , 417 S.E.2d 705 , cert. denied, 203 Ga. App. 906 , 417 S.E.2d 705 (1992).

Board of education liable for acts outside board's authority. - County is a public corporation and acts through the county's officers and agents. In matters pertaining to education, the county acts through the county's board of education. When the board of education acts upon matters lawfully within the board's jurisdiction, the board is the county acting through the board's corporate authority, and a county is not liable to suit for any cause of action unless made so by statute. But when the board of education, through the board's members, acts beyond the scope of the board's lawful jurisdiction and commits an actionable wrong, the act so committed is not "county action," and in such a case a suit may be maintained in the courts of this state against the wrongdoers. Duffee v. Jones, 208 Ga. 639 , 68 S.E.2d 699 (1952).

Charter provision constitutional. - A 1983 amendment to the charter of the consolidated local government of Columbus which provided that the tort liability of the consolidated government would be the tort liability applicable to counties was valid and constitutional. Bowen v. City of Columbus, 256 Ga. 462 , 349 S.E.2d 740 (1986).

County is liable to suit in action to recover land owned by the plaintiffs and which has been taken possession of by the county, when the plaintiff refuses on demand to deliver possession. Lynch v. Harris County, 188 Ga. 651 , 4 S.E.2d 573 (1939).

"Equitable liens." - O.C.G.A. § 36-1-4 was not an impediment to an unpaid subcontractor's "equitable lien" claim against a county as to any funds which were being held by the county but which belonged to the general contractor. DeKalb County v. J & A Pipeline Co., 263 Ga. 645 , 437 S.E.2d 327 (1993).

County liable for money illegally received. - If a county illegally obtains the money of another and refuses, on demand, to make restitution, an action for money had and received lies against the county for money so appropriated and used. Owens v. Floyd County, 94 Ga. App. 532 , 95 S.E.2d 389 (1956).

Suit for money had and received, when the suit is against equity and good conscience for the one receiving it to keep it (and this includes a county), is not based on a contract nor a statute. Owens v. Floyd County, 94 Ga. App. 532 , 95 S.E.2d 389 (1956).

Requirement for writ of mandamus. - Before a writ of mandamus will issue to compel the county commissioners to issue a warrant upon the treasurer to pay a debt, it must appear that the debt comes within the classes provided in the Constitution for which a tax may be levied. Daniel v. Hutchinson, 169 Ga. 492 , 150 S.E. 681 (1929).

When landowners were compensated by a county in condemnation proceedings, the landowners could not seek additional recovery based upon nuisance or trespass, nor could the landowners bring suit against the county for negligent misrepresentation or fraudulent inducement in the original condemnation actions. Butler v. Gwinnett County, 223 Ga. App. 703 , 479 S.E.2d 11 (1996).

County's immunity regarding tax sale. - Pursuant to O.C.G.A. § 36-1-4 and Ga. Const. 1983, Art. I, Sec. II, Para. IX (e), a county was immune from a lender's suit because the lender pointed to no statute creating a waiver of immunity or any factual scenario warranting a waiver with respect to the lender's claim that the county failed to give the lender notice of the availability of excess funds following a tax sale as required by O.C.G.A. § 48-4-5 . Bartow County v. S. Dev., III, L.P., 325 Ga. App. 879 , 756 S.E.2d 11 (2014).

Cited in City of Dawson v. Terrell County, 33 Ga. App. 676 , 145 S.E. 465 (1928); Decatur County v. Townsend, 46 Ga. App. 103 , 166 S.E. 774 (1932); Morris v. Floyd County, 46 Ga. App. 150 , 167 S.E. 127 (1932); Warren County v. Battle, 48 Ga. App. 240 , 172 S.E. 673 (1934); Wasden v. Jefferson County, 56 Ga. App. 505 , 193 S.E. 116 (1937); Ayers v. Hartford Accident & Indem. Co., 106 F.2d 958 (5th Cir. 1939); State Hwy. Bd. v. Hall, 193 Ga. 717 , 20 S.E.2d 21 (1942); Ayers v. Franklin County, 73 Ga. App. 207 , 36 S.E.2d 110 (1945); Johnson County v. Hicks, 73 Ga. App. 238 , 36 S.E.2d 116 (1945); State Hwy. Dep't v. Parker, 75 Ga. App. 237 , 43 S.E.2d 172 (1947); Arnold v. Walton, 205 Ga. 606 , 54 S.E.2d 424 (1949); Brantley v. Baldwin County, 81 Ga. App. 485 , 59 S.E.2d 288 (1950); Almon v. Terrell County, 89 Ga. App. 403 , 79 S.E.2d 430 (1953); State Hwy. Dep't v. McClain, 216 Ga. 1 , 114 S.E.2d 125 (1960); Richmond County v. Williams, 109 Ga. App. 670 , 137 S.E.2d 343 (1964); Lowndes County v. Dasher, 229 Ga. 289 , 191 S.E.2d 82 (1972); Hancock County v. Williams, 230 Ga. 723 , 198 S.E.2d 659 (1973); Lee v. Petty, 133 Ga. App. 201 , 210 S.E.2d 383 (1974); Richmond County v. Jackson, 234 Ga. 717 , 218 S.E.2d 11 (1975); Wayne County Bd. of Comm'rs v. Warren, 236 Ga. 150 , 223 S.E.2d 133 (1976); Central of Ga. R.R. v. Schnadig Corp., 139 Ga. App. 193 , 228 S.E.2d 165 (1976); Lasky v. Fulton County, 145 Ga. App. 120 , 243 S.E.2d 330 (1978); DeKalb County v. Gibson, 146 Ga. App. 573 , 246 S.E.2d 692 (1978); Duffield v. DeKalb County, 242 Ga. 432 , 249 S.E.2d 235 (1978); Reid v. Gwinnett County, 242 Ga. 88 , 249 S.E.2d 559 (1978); DeKalb County v. Scruggs, 147 Ga. App. 711 , 250 S.E.2d 159 (1978); Overlin v. Boyd, 598 F.2d 423 (5th Cir. 1979); Miree v. United States, 490 F. Supp. 768 (N.D. Ga. 1980); Grant v. Barge, 160 Ga. App. 488 , 287 S.E.2d 393 (1981); Baranan v. Fulton County, 250 Ga. 531 , 299 S.E.2d 722 (1983); James v. Richmond County Health Dep't, 168 Ga. App. 416 , 309 S.E.2d 411 (1983); Bliss v. Cobb County, 599 F. Supp. 233 (N.D. Ga. 1984); Shuman v. Dyess, 175 Ga. App. 213 , 333 S.E.2d 379 (1985); Dinsmore v. Cherokee County, 177 Ga. App. 93 , 338 S.E.2d 523 (1985); Ostuni Bros. v. Fulton County Dep't of Pub. Works, 184 Ga. App. 406 , 361 S.E.2d 668 (1987); Marion v. DeKalb County, 821 F. Supp. 685 (N.D. Ga. 1993); Atlanta Mechanical, Inc. v. DeKalb County, 209 Ga. App. 307 , 434 S.E.2d 494 (1993); DeKalb County v. J & A Pipeline Co., 263 Ga. 645 , 437 S.E.2d 327 (1993); ABE Eng'g, Inc. v. Fulton County Bd. of Educ., 214 Ga. App. 514 , 448 S.E.2d 221 (1994); Thompson v. Chapel, 229 Ga. App. 537 , 494 S.E.2d 216 (1997).

Violations of Constitutional Rights

Violation by county of constitutional right of citizen raises cause of action in favor of the citizen against the county, unless some means of redress other than suit has been afforded by the legislature. Tounsel v. State Hwy. Dep't, 180 Ga. 112 , 178 S.E. 285 (1935); Waters v. DeKalb County, 208 Ga. 741 , 69 S.E.2d 274 (1952); Baranan v. Fulton County, 232 Ga. 852 , 209 S.E.2d 188 (1974).

Arrestee's 42 U.S.C. § 1983 suit against a county, alleging that the arrestee was raped by a deputy at the county jail, failed as a matter of law because, under O.C.G.A. § 36-1-4 , a county was not liable for any cause of action unless provided by statute, and the county had not waived the county's sovereign immunity. Boyd v. Nichols, 616 F. Supp. 2d 1331 (M.D. Ga. 2009).

Taking of or Damage to Private Property

Right arises from Constitution. - Right to sue a county for damages for the taking or damaging of private property under the circumstances alleged is not dependent on any statute, but arises out of the constitutional provision which applies to counties as well as to individuals. Brooks County v. Elwell, 63 Ga. App. 308 , 11 S.E.2d 82 (1940).

Declaration of the Constitution that private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid gives rise to an action for damages against a county for injuries to private property caused by public improvements. Baranan v. Fulton County, 232 Ga. 852 , 209 S.E.2d 188 (1974).

Taking or damaging property. - Lawsuits involving taking or damaging of property under Ga. Const. 1976, Art. I, Sec. III, Para. I (see now Ga. Const. 1983, Art. I. Sec. III, Para. II, and Art. III, Sec. VI, Para. II) may be maintained against counties. Ingram v. Baldwin County, 149 Ga. App. 422 , 254 S.E.2d 429 (1979).

Taking private property. - As a general rule, a county is not liable to suit unless there is a law which so declares. Yet the appropriate law can be found in the Constitution. When private property is taken by county authorities for the benefit of the public, a right of action arises in favor of the owner of the property. Elbert County v. Brown, 16 Ga. App. 834 , 86 S.E. 651 (1915); Bates v. Madison County, 32 Ga. App. 370 , 123 S.E. 158 (1924).

County can be held liable to the extent of an injury to property, not on the theory that the county is liable, as are other tort-feasors, for the negligent acts and conduct of its agents while acting within the scope of their authority, but for the reason that it cannot, either with or without the guise of contractual authority, damage the property of another for the public use without just and adequate compensation being paid. Felton Farm Co. v. Macon County, 49 Ga. App. 239 , 175 S.E. 29 (1934).

Construing together Ga. Const. 1877, Art. I, Sec. III, Para. I (see now Ga. Const. 1983, Art. I, Sec. III, Para. II, and Art. III, Sec. VI, Para. II) and this section, a right of action is afforded against a county for damage to private property for public uses or taking private property for public uses. Consequently, a county is liable to suit at the instance of an individual for damages to the individual's property done by the county for a public purpose. Taylor v. Richmond County, 185 Ga. 610 , 196 S.E. 37 , answer conformed to, 57 Ga. App. 586 , 196 S.E. 303 (1938) (decided under former Code 1933, § 95-1001).

Owner entitled to compensation. - If private property is taken or damaged by a county for public use, even by the prudent and proper exercise of a power conferred by statute, the owner is entitled to just compensation. Felton Farm Co. v. Macon County, 49 Ga. App. 239 , 175 S.E. 29 (1934).

When a county causes a nuisance to exist which amounts to a taking of property of one of its citizens for public purposes, the county is liable. Miree v. United States, 242 Ga. 126 , 249 S.E.2d 573 (1978).

Recovery of prejudgment interest. - Sovereign immunity does not prohibit the recovery of prejudgment interest in an action for a refund of wrongfully collected taxes. Eastern Air Lines v. Fulton County, 183 Ga. App. 891 , 360 S.E.2d 425 , cert. denied, 183 Ga. App. 906 , 360 S.E.2d 425 (1988).

Diversion of surface water. - Counties are subject to suit for damages, as well as injunctive relief, in the maintenance of an activity so as to constitute a continuing nuisance by diverting surface water onto a property owner's property, and which is violative of a citizen's constitutional right that private property shall not be taken or damaged for public purposes without just and adequate compensation being paid. Anderson v. Columbus, 152 Ga. App. 772 , 264 S.E.2d 251 (1979).

Operation and maintenance of public works project. - While the power to construct sewer and drainage systems is a governmental function, the county cannot create and maintain such system as a nuisance which damages private property without subjecting itself to civil liability. Ingram v. Baldwin County, 149 Ga. App. 422 , 254 S.E.2d 429 (1979).

Single instance of backup of county sewage system into private home would not be sufficient to create nuisance for which county liability would attach. Ingram v. Baldwin County, 149 Ga. App. 422 , 254 S.E.2d 429 (1979).

As long as a county operates and maintains a public works project so as not to result in the creation of a nuisance, O.C.G.A. § 36-1-4 renders the county immune from suit for damage resulting from the operation and maintenance of the project. Desprint Servs., Inc. v. DeKalb County, 188 Ga. App. 218 , 372 S.E.2d 488 (1988).

As a matter of law, the post-construction non-nuisance damage done to private property by a single malfunction in the operation of a public works project is not damage which has been done for a "public purpose" within the meaning of Ga. Const. 1976, Art. I, Sec. III, Para. I (see now Ga. Const. 1983, Art. I, Sec. III, Para. II, and Art. III, Sec. VI, Para. II). Desprint Servs., Inc. v. DeKalb County, 188 Ga. App. 218 , 372 S.E.2d 488 (1988).

Private property which was flooded as the result of a burst water main, which had been equipped with a new "butterfly" valve in connection with a road construction project undertaken a few weeks earlier by a county was not damaged for the "public purpose" of actually constructing any public works project within the meaning of Ga. Const. 1983, Art. I, Sec. III, Para. I. Desprint Servs., Inc. v. DeKalb County, 188 Ga. App. 218 , 372 S.E.2d 488 (1988).

Damage through construction of bridge. - Right of action exists against county for damaging private property for public uses in constructing the approaches to county bridge. Smith v. Floyd County, 85 Ga. 420 , 11 S.E. 850 (1890).

No liability unless "taking". - When nuisance created by county does not amount to taking for public purposes county is not liable. Miree v. United States, 242 Ga. 126 , 249 S.E.2d 573 (1978).

Theory not applicable to negligence. - County is not liable to a father of a minor child injured by the negligence of one of the servants of the county in operating a truck, for loss of the services of the child, on the theory that the deprivation of the father of the services is the taking or damaging of property for public use without just compensation, nor would it make any difference that the driver of the truck was employed in repairing a public road. Born v. Fulton County, 51 Ga. App. 537 , 181 S.E. 106 (1935).

Action to recover for nuisance after 12 months against legal policy. - Policy of the law is explicit that all claims against a county for taking or damaging private property for public uses must be filed within 12 months, and suit thereon for the depreciation in the market value must be instituted within the period of limitations stipulated by the law, and it is not the policy of the law to permit the bringing of suits against counties from time to time for damages which might result by reason of negligently constructed public improvements constituting a nuisance. Bibb County v. Green, 42 Ga. App. 552 , 156 S.E. 745 (1931).

Damages are actual depreciation in market value of premises. - Right of action exists against a county for damaging private property for public uses; the liability of counties for damages to property in all cases being the actual depreciation in the market value of the premises injured. Felton Farm Co. v. Macon County, 49 Ga. App. 239 , 175 S.E. 29 (1934).

Sovereign immunity. - In an action in which the plaintiff landowners filed suit against the defendant county alleging trespass, negligence, negligence per se, and violation of the landowners' riparian rights, in connection with the county's recreational development of the county's adjoining property, the county was entitled to sovereign immunity because there was no showing by the landowners that the county waived sovereign immunity under Ga. Const. 1983, Art. I, Sec. II, Para. IX and O.C.G.A. § 36-1-4 . Carney v. Gordon County, F. Supp. 2d (N.D. Ga. Sept. 12, 2006).

Contracts

Liability for breach of contract. - Whenever counties are authorized to contract, and counties make valid contracts in pursuance of such power, the counties are liable to suits for breaches thereof, although there is no statute expressly authorizing the bringing of such an action for such purpose. Washington County v. Sheppard, 46 Ga. App. 240 , 167 S.E. 339 (1933).

Exception to general rules exists when a county breaches a contract the county was authorized by law to undertake. Deason v. DeKalb County, 222 Ga. 63 , 148 S.E.2d 414 (1966).

County can always be sued upon any liability against the county created by statute, or for breach of any valid contract which the county is authorized by law to make. Deason v. DeKalb County, 222 Ga. 63 , 148 S.E.2d 414 (1966).

Whenever a county is made liable by statute for a demand, or is authorized by statute to contract, and in pursuance of such power does contract, then an action will lie against the county to enforce such liability, or to enforce any rights growing out of such contract, although there is no statute expressly authorizing the bringing of an action for such purpose. Deason v. DeKalb County, 222 Ga. 63 , 148 S.E.2d 414 (1966).

If a statute authorizes a county to contract, the statute also implicitly creates a cause of action for breach. Miree v. United States, 526 F.2d 679 (5th Cir.), different result reached on rehearing, 538 F.2d 643 (5th Cir. 1976), judgment en banc vacated, 433 U.S. 25, 97 S. Ct. 2490 , 53 L. Ed. 2 d 557 (1977).

Supreme Court has long construed former Code 1933, §§ 23-1501 and 23-1502 (see now O.C.G.A. §§ 36-1-3 and 36-1-4 ) as permitting suits against counties based on contracts made pursuant to legislative authorization. PMS Constr. Co. v. DeKalb County, 243 Ga. 870 , 257 S.E.2d 285 (1979).

Liability on employment contract. - Employee who has obtained permanent employment status under county merit system and who is wrongfully discharged may maintain suit against the county for the employee's salary even though such suit is not expressly authorized by statute. Deason v. DeKalb County, 222 Ga. 63 , 148 S.E.2d 414 (1966).

County liable for rental value of farm. - When a county obtains possession of land, with crops growing thereon belonging to another, under a void contract, the county is nevertheless liable to the owner of the land for the land's rental value for the time during which the land was actually occupied and used by the county, and for the value of the crops thereon. Bailey v. Miller County, 24 Ga. App. 746 , 102 S.E. 178 (1920) (decided under former Code 1910, § 543).

Torts
1. Liability Generally

No liability for torts generally. - Rule of general nonliability for torts is true whether the alleged cause of action arises from the negligent performance of duties which the county authorities are compelled to perform, or a negligent discharge of duties voluntarily assumed in the exercise of a discretion vested in the authorities by law. McLeod v. Pulaski County, 50 Ga. App. 356 , 178 S.E. 198 (1935).

County, when exercising governmental functions and acting as an agency of the state is not liable, in the absence of statutes imposing liability, for the county's failure to perform a duty or for the county's negligent performance of the duty, not even when the duty is imposed by statute; and there is no distinction in the application of this rule between the neglect to perform an act which ought to have been performed, and the performance of the duty in a negligent manner. Miree v. United States, 242 Ga. 126 , 249 S.E.2d 573 (1978).

Sovereign immunity not waived. - In an action arising out of an arrest, despite the way the arrestee was treated, the trial court properly dismissed a complaint as asserted against a county, and granted summary judgment on the same complaint as asserted against a city, on sovereign immunity grounds since the arrestee failed to show that the immunity had been waived. Scott v. City of Valdosta, 280 Ga. App. 481 , 634 S.E.2d 472 (2006).

No law authorizes suit against county for torts of conversion and defamation and since a county is immune from suit for torts of conversion and defamation and the defendants in their official capacities can be sued only as representatives of the county, thereby exposing the county to liability, plaintiff's complaint alleging conversion and defamation must be dismissed as to the county and the defendants in their official capacities. Military Circle Pet Ctr. No. 94, Inc. v. Cobb County, 665 F. Supp. 909 (N.D. Ga. 1987), aff'd in part and rev'd in part, 877 F.2d 973 (11th Cir. 1989).

County is immune from suit under a theory of negligence, even when the negligence arises from the violation by the county of specific contractual and statutorily imposed duties. Miree v. U.S., 242 Ga. 126 , 249 S.E.2d 573 (1978).

Legislature has not provided for suits in negligence against a county, nor is there any other authority for such. Johnson v. Chatham County, 167 Ga. App. 283 , 306 S.E.2d 310 (1983).

County is immune from suit under theory of nuisance, even if the nuisance is created in violation of specific contractual and statutorily imposed duties. Miree v. United States, 242 Ga. 126 , 249 S.E.2d 573 (1978).

Waiver of sovereign immunity for claims alleging the negligent performance of ministerial duties only applies to cities and does not apply to counties. O.C.G.A. § 36-33-1(b) provides that for neglect to perform or improper or unskillful performance of their ministerial duties, municipal corporations shall be liable. O.C.G.A. § 36-1-4 sets out the sovereign immunity of counties and contains no such waiver for ministerial duties. Klingensmith v. Long County, 352 Ga. App. 21 , 833 S.E.2d 608 (2019).

Immunity is complete unless suit is permitted or impliedly authorized by statute. - Unless a complainant is a party to such contract, or a named beneficiary of such contract, the fact that a county may have been guilty of a nuisance in not carrying out or performing the contract between the county government and a third party affords no right of action to the complainant. Miree v. United States, 242 Ga. 126 , 249 S.E.2d 573 (1978).

Plaintiff's state law tort claims against a police chief, two police officers, and a county were barred by the doctrine of sovereign immunity, Ga. Const. 1983, Art. I, Sec. II, Para. IX(e), since the individual defendants were sued in the defendants' official capacities, and there was no statutory waiver of immunity as required by O.C.G.A. § 36-1-4 . Payne v. Dekalb County, 414 F. Supp. 2d 1158 (N.D. Ga. 2004).

Because a county enjoyed sovereign immunity from a pedestrian's negligence and nuisance claims asserted in a personal injury action against the county for the county's alleged failure to maintain a water meter cover, the trial court properly dismissed the claims; furthermore, O.C.G.A. § 36-1-4 provided that a county was not liable for any cause of action unless made so by statute. Rutherford v. DeKalb County, 287 Ga. App. 366 , 651 S.E.2d 771 (2007).

Unified city/ county government was not a municipality for purposes of the waiver of sovereign immunity by operation of O.C.G.A. § 36-33-1 because the charter creating the unified government expressly provided that its tort and nuisance liability would follow the law and rules of tort liability applicable to counties in Georgia. Athens-Clarke County v. Torres, 246 Ga. App. 215 , 540 S.E.2d 225 (2000).

County not liable for consequential damages from water meter leakage. - Plaintiff in a federal civil rights action had an adequate state law tort remedy, consequently plaintiff was not deprived of plaintiff's rights without due process of law when a water meter leaked, the county did not repair the meter, water flowed onto a nearby road and froze, and plaintiff's car skidded on the ice and collided with another car, causing extensive injuries, notwithstanding the fact that the county and the county's officers were immune from suit for negligence. Rittenhouse v. DeKalb County, 764 F.2d 1451 (11th Cir. 1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193 , 89 L. Ed. 2 d 308 (1986).

Liability for injury at airport. - County's exposure of liability to every member of the flying public, their associates, the adjoining property owners, and any other person who may happen to be in the area, is too broad to permit a contention that every injured party is an intended beneficiary under a public contract calling for the county to operate and maintain an airport, especially since there is no intention manifested in the contract that the county compensate any member of the public for injurious consequences. Miree v. United States, 242 Ga. 126 , 249 S.E.2d 573 (1978).

County is immune from action brought by pilot's widow for wrongful death of such pilot when the pilot's plane crashed because of ingestion of birds into the plane's engines. Sellfors v. DeKalb County, 157 Ga. App. 731 , 278 S.E.2d 489 (1981).

Liability for intentional torts. - County is not responsible in damages for the tort of a guard in unlawfully beating a convict in the chain gang, or for the negligence of the other guards in not protecting the convict from the unlawful beating. Tounsel v. State Hwy. Dep't, 180 Ga. 112 , 178 S.E. 285 (1935).

Liability for wrongful death. - County is not liable to suit for any cause of action unless made so by statute, and thus escapes liability in a wrongful death action involving refuse containers the county owned. Greenway v. DeKalb County, 151 Ga. App. 556 , 260 S.E.2d 552 (1979).

Injuries on courthouse property. - General Assembly has not made counties liable to suit on account of injuries sustained by persons falling on courthouse property. Revels v. Tift County, 235 Ga. 333 , 219 S.E.2d 445 (1975).

Liability at county hospitals. - This section includes ex delicto causes of action such as "causes of action arising out of the negligent performance of authorized but not compulsory, ministerial, or proprietary functions, as distinguished from governmental functions" whether the hospital be operated "primarily for charitable purposes," or operated "primarily for profit." Ware County v. Cason, 189 Ga. 78 , 5 S.E.2d 339 (1939).

Liability of county for injuries from tar machine. - In a worker's suit alleging negligence on the part of a county with regard to the county allegedly failing to properly instruct and supervise the worker in the use of a portable tar kettle machine, the trial court erred by granting the county's motion for a judgment on the pleadings based on sovereign immunity as the worker sufficiently alleged that the machine was a vehicle as contemplated by O.C.G.A. § 33-24-51 , which established a waiver of sovereign immunity if the county had purchased liability insurance to cover damages and injuries arising from the use of motor vehicles under the county's management. Hewell v. Walton County, 292 Ga. App. 510 , 664 S.E.2d 875 (2008).

Purchase of insurance is no waiver of liability. - Procurement of insurance under Ga. L. 1960, p. 289, § 1 (see now O.C.G.A. § 33-24-51 ) does not constitute a waiver of sovereign immunity in regard to damages caused by the county's negligence not connected with motor vehicles. Revels v. Tift County, 235 Ga. 333 , 219 S.E.2d 445 (1975).

Compensation of some other person or persons for comparable injuries on the same county property, or the purchase of insurance for such purposes, does not create a cause of action in a plaintiff suing a city in a tort action. The defendant city would not be estopped by such unauthorized waiver of the sovereign immunity of the county. Revels v. Tift County, 235 Ga. 333 , 219 S.E.2d 445 (1975).

County does not waive the county's immunity in the purchase of a contract of liability insurance, even though the policy of insurance may include a clause allegedly waiving immunity. Miree v. United States, 242 Ga. 126 , 249 S.E.2d 573 (1978).

Sovereign immunity barred the claimants' personal injury and nuisance claims against the members of a county board of commissioners in the commissioners' official capacities because the claimants did not show that the county waived the county's sovereign immunity with regard to the county's operation of a mosquito control helicopter which sprayed one of the claimants with chemicals. Further, the county did not waive the county's sovereign immunity under O.C.G.A. § 33-24-51 by purchasing a liability insurance policy covering the helicopter because the helicopter was not a "motor vehicle" as that term was understood in the statute. Bd. of Comm'rs v. Johnson, 311 Ga. App. 867 , 717 S.E.2d 272 (2011).

Waiver of sovereign immunity for motor vehicle insurance. - In determining if a county waived the county's sovereign immunity through the voluntary purchase of liability insurance under the second sentence of O.C.G.A. § 33-24-51(b) , a trial court erred in considering the definition of "motor vehicle" provided in O.C.G.A. § 36-92-1 ; rather, "any motor vehicle" was defined as a vehicle that was capable of being driven on the public roads that was covered by a liability insurance policy purchased by the county. Glass v. Gates, 311 Ga. App. 563 , 716 S.E.2d 611 (2011), aff'd, 291 Ga. 350 , 729 S.E.2d 361 (2012).

2. Roads and Bridges

No liability for defect in highway. - There is no constitutional or statutory provision which can be taken to render a county liable for a tort on account of personal injuries arising from a defect in a highway constructed or repaired by the county. This is true irrespective of whether the construction or repair of the highway is done in the performance of the county's own governmental functions in maintaining the county's system of highways, or whether the construction or repair is done under a contract made by the county with the State Highway Department (now Department of Transportation) solely for pecuniary gain. Purser v. Dodge County, 188 Ga. 250 , 3 S.E.2d 574 , answer conformed to, 60 Ga. App. 316 , 3 S.E.2d 744 (1939).

There being no liability provided by any statute against a county for negligence arising out of the county's maintenance or construction of a public road, a county, notwithstanding the county may in the construction of a public road be operating under a contract from which the county derives a pecuniary gain made with the highway department pursuant to law, is not liable for the county's negligence in obstructing the roadway by leaving a pile of rock or gravel in the road in preparation for the construction by the county of a bridge, and as a result of which a person traveling along the road in an automobile runs into the pile of rock and is injured. Purser v. Dodge County, 60 Ga. App. 316 , 3 S.E.2d 744 (1939).

There is no constitutional or statutory provision which can be taken to render a county liable for a tort on account of personal injuries arising from a defect in a highway constructed or repaired by the county. Williams v. Georgia Power Co., 233 Ga. 517 , 212 S.E.2d 348 (1975).

No recovery for poisoning cows. - This provision does not give a cause of action when a county by road work pollutes a stream and thereby plaintiff's cows are poisoned. Howard v. County of Bibb, 127 Ga. 291 , 56 S.E. 418 (1907).

County not liable for drowning of car occupants in river ford. - County was under no duty to build bridge across creek which under normal circumstances was safe to ford and therefore not liable for death of car occupants who drowned when creek flooded over ford as car passed over the ford. Dollar v. Haralson County, 704 F.2d 1540 (11th Cir.), cert. denied, 464 U.S. 963, 104 S. Ct. 399 , 78 L. Ed. 2 d 341 (1983).

Express statutory authority exists for defective bridges. - While a county is not liable to suit unless made so by statute, it has been provided by statute that a county is primarily liable for all injuries caused by reason of any defective bridges, whether erected by contractors or county authorities. Berrien County v. Vickers, 73 Ga. App. 863 , 38 S.E.2d 619 (1946) (decided under former Code 1933, § 95-1001).

Liability in case of bridges. - When the statute provides for the liability of counties, a recovery may be had against the counties as when no sufficient bond is taken to keep bridges in repair. Hammond v. County of Richmond, 72 Ga. 188 (1883).

County is liable to suit by contractors for breach of a valid and binding contract for the building of a bridge over a river in such county, upon the assumption that the difference between the representations in the plans and specifications as to the facts and conditions under the bed of the river, and the actual facts and conditions thereof, amounted to a breach of the contract by the county. Decatur County v. Praytor, Howton & Wood Contracting Co., 163 Ga. 929 , 137 S.E. 247 (1927).

Suit may be maintained against a county and a verdict and judgment obtained against the county for damages resulting from a defect in a bridge, although it may appear that jurisdiction over the highway on which the bridge was located had been assumed by the State Highway Department (now Department of Transportation) under the terms of the law, and that the State Highway Department and not the county was guilty of negligence in the maintenance and construction of the bridge or its approaches which caused the injury. Berrien County v. Vickers, 73 Ga. App. 863 , 38 S.E.2d 619 (1946) (decided under former Code 1933, § 95-1001).

For a county to be liable for injuries resulting from defective bridge repairs there must have been a failure to take a bond from a contractor when such a bond was required, and the injury complained of must have occurred within the time which would have been covered by the contractor's bond, if such a bond had been given. Wolf v. Upson County, 44 F.2d 925 (5th Cir. 1930).

Pleading

Petition must show liability by statute. Seymore v. Elbert County, 116 Ga. 371 , 42 S.E. 727 (1902); Fulton County v. Gordon Water Co., 37 Ga. App. 290 , 140 S.E. 45 (1927), cert. denied, 37 Ga. App. 833 (1928); Newberry v. Hall County, 52 Ga. App. 472 , 183 S.E. 664 (1936); Anderson v. DeKalb County, 107 Ga. App. 328 , 130 S.E.2d 140 (1963).

Petition sufficient when petition shows right to recover under statute. - Petition sufficiently shows the suit is brought under a particular statute when the facts alleged clearly show the plaintiff's right to recovery under the provisions of the statute. Deason v. DeKalb County, 222 Ga. 63 , 148 S.E.2d 414 (1966).

Petition sufficient which alleges employment under county law. - When a petition alleges the plaintiff was employed and obtained a permanent status under the law and the regulations promulgated by the county commissioners, then the county is subject to suit. Deason v. DeKalb County, 222 Ga. 63 , 148 S.E.2d 414 (1966).

Liability may arise from performance of statutorily authorized act. - Liability to suit may be shown by indicating that the claim arises as an incident in the performance of an undertaking by the county authorized by statute. Deason v. DeKalb County, 222 Ga. 63 , 148 S.E.2d 414 (1966).

OPINIONS OF THE ATTORNEY GENERAL

ANALYSIS

General Consideration

Generally, counties have broader immunity from suits than municipalities. 1975 Op. Att'y Gen. No. 75-32.

No liability for acts of probationer. - County's potential liability for acts of a probationer working on a community service project depends upon the existence of a statute authorizing a tort action against the county. 1975 Op. Att'y Gen. No. 75-32.

No liability for collision with roadside object. - Generally, a county will not be subject to liability for damages resulting from a motorist's collision with a garbage container placed by the county beside the county's road. 1974 Op. Att'y Gen. No. U74-66.

Liability for misfeasance. - Slash Pine Area Planning and Development Commission is not liable for damage to private individuals resulting from improper performance or nonperformance of duties of the Commission's officers, agents, or servants. 1967 Op. Att'y Gen. No. 67-255.

Liability of Boards of Education

.

No tort liability generally. - Local school district is not liable in tort under the law of Georgia for injuries sustained by a pupil engaged in school athletic activities. 1957 Op. Att'y Gen. p. 100.

Neither a county board of education nor the board's members, by virtue of their membership, are liable for injuries incurred by a pupil riding on one of the board's school buses. 1965-66 Op. Att'y Gen. No. 65-84.

Board of education liable if acting beyond scope of authority. - When the board of education acts upon matters lawfully within the board's jurisdiction, it is the county acting through the county's corporate authority, and the county is not liable to suit for any cause of action unless made so by statute; but when the board of education, through the board's members, acts beyond the scope of the board's lawful jurisdiction and commits an actionable wrong, the act so committed is not "county action," and in such a case a suit may be maintained in the courts of this state against the wrongdoers. 1958-59 Op. Att'y Gen. p. 98.

County board of education, acting beyond the scope of the board's lawful jurisdiction in leasing school buildings to private citizens to be used as a recreational center, might thereby subject the board's members to individual liability to suit in case someone was hurt or an accident happened on this property. 1958-59 Op. Att'y Gen. p. 98.

No shield from liability for individual negligence. - This shield from liability, which is generally referred to as the doctrine of "sovereign immunity" is applicable only if the act or conduct causing the loss is one which was taken by the board within the scope of the board's authority or official discretion; it does not protect a board member when it is such member's own personal and individual negligence which causes the injury rather than an action of the school board; another exception is the fact that while the doctrine protects the school board and the members of the board from liability when the injury results from ordinary negligence of the board, it would not apply when the action of the board amounts to malicious, willful, or wanton misconduct. 1965-66 Op. Att'y Gen. No. 65-84.

RESEARCH REFERENCES

Am. Jur. 2d. - 56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, §§ 735, 740.

C.J.S. - 20 C.J.S., Counties, §§ 410, 411.

ALR. - Liability of county or municipality for tortious injury in or about building which is used for both governmental and proprietary functions, 64 A.L.R. 1545 .

Applicability to federal courts of state constitutional or statutory provisions regarding liability of county or other political subdivision to suit, 86 A.L.R. 1019 .

Liability of county for torts in connection with activities which pertain, or are claimed to pertain, to private or proprietary functions, 16 A.L.R.2d 1079.

Liability, in motor vehicle-related cases, of governmental entity for injury or death resulting from design, construction, or failure to warn of narrow bridge, 2 A.L.R.4th 635.

Liability of governmental entity to builder or developer for negligent issuance of building permit subsequently suspended or revoked, 41 A.L.R.4th 99.

Right of insured, precluded from recovering against owner or operator of uninsured motor vehicle because of governmental immunity, to recover uninsured motorist benefits, 55 A.L.R.4th 806.

State and local government liability for injury or death of bicyclist due to defect or obstruction in public bicycle path, 68 A.L.R.4th 204.

Measure and elements of damages for injury to bridge, 31 A.L.R.5th 171.

36-1-5. Service upon county.

In all cases in which a county is a party defendant, service shall be sufficient if perfected upon a majority of the commissioners, in those counties in which the affairs of the county are committed to a county commissioner or a board of county commissioners.

(Ga. L. 1872, p. 39, § 1; Code 1873, § 492; Code 1882, § 492; Civil Code 1895, § 342; Civil Code 1910, § 385; Code 1933, § 23-1503; Ga. L. 1987, p. 1482, § 4.)

Cross references. - Further provisions regarding service of process on counties, § 9-11-4(e)(5).

Editor's notes. - The directory language of Ga. L. 1987, p. 1482, § 4 provided "Chapter 5 of Title 36 of the Official Code of Georgia Annotated, relating to the organization of county government, is amended . . . ." The Code section amended by Ga. L. 1987, p. 1482, § 4, however, is Code Section 36-1-5 which appears in this chapter. Ga. L. 1987, p. 1482, § 4 has been incorporated above as an amendment to this Code section.

Law reviews. - For article comparing sections of Ch. 11, T. 9, the Georgia Civil Practice Act, with preexisting provisions of the Georgia Code, see 3 Ga. St. B. J. 295 (1967).

JUDICIAL DECISIONS

Service on one commissioner insufficient. - Since the statute prescribing the method of service on counties requires service on a majority of the commissioners, service on the county cannot be perfected by serving one member of a board of commissioners. Clayton County v. Sarno, 112 Ga. App. 379 , 145 S.E.2d 283 (1965).

Service on chair sufficient. - Service upon the chair of the board of county commissioners under Ga. L. 1972, p. 689, §§ 1-3 (see now O.C.G.A. § 9-11-4 ) provides an alternative to serving a suit against a county by serving a majority of the members of the board of commissioners as required by former Code 1933, § 23-1503 (see now O.C.G.A. § 36-1-5 ). Board of Comm'rs v. Allgood, 234 Ga. 9 , 214 S.E.2d 522 (1975).

Irregularity in service cured by appearance. - General appearance by answering a petition waives all irregularities in the service of process. Franklin County v. Payne, 115 Ga. App. 52 , 153 S.E.2d 732 (1967).

County may employ counsel. - County generally has, in the absence of express authority, implied statutory authority through the county's proper officers or agents, to employ counsel to represent the county in civil suits in which the county is interested, or to which the county is a party. The power to control the fiscal affairs of a county carries with it the power to employ counsel. Templeman v. Jeffries, 172 Ga. 895 , 159 S.E. 248 (1931).

All suits by or against a county shall be in the name thereof. - Suit cannot be against the board of commissioners, and a suit so brought cannot be corrected by amendment. Arnett v. Board of Comm'rs, 75 Ga. 782 (1885).

Since the Constitution of 1877 all suits by or against a county must be in the name of a county. Commissioners of Rds. & Revenue v. Howard, 59 Ga. App. 541 , 1 S.E.2d 222 (1939).

Cited in Douglas County v. Brown & Riley Enters., Ltd., 114 Ga. App. 410 , 151 S.E.2d 510 (1966); Guhl v. Tuggle, 242 Ga. 412 , 249 S.E.2d 219 (1978); Housworth v. Glisson, 485 F. Supp. 29 (N.D. Ga. 1978).

RESEARCH REFERENCES

Am. Jur. 2d. - 56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, § 741.

C.J.S. - 20 C.J.S., Counties, § 418.

ALR. - Power of city, town, or county or its officials to compromise claim, 105 A.L.R. 170 ; 15 A.L.R.2d 1359.

Waiver of, or estoppel to assert, defects in notice of claim against county or municipality, 148 A.L.R. 637 .

Limitation period as affected by requirement of notice or presentation of claim against governmental body, 3 A.L.R.2d 711.

Waiver of, or estoppel to assert, failure to give required notice of claim of injury to municipality, county, or other governmental agency or body, 65 A.L.R.2d 1278.

Waiver of, or estoppel to assert, failure to give or defects in notice of claim against state or local political subdivision - modern status, 64 A.L.R.5th 519.

36-1-6. Publication of annual financial statement; contents.

All boards of county commissioners, county commissioners, county managers, or other persons or bodies having charge of receipts and expenditures of county moneys shall publish a financial statement once each calendar year in the paper in which sheriff's advertisements are published in their respective counties. A copy of this statement shall also be posted twice each year for a period of not less than 30 days on the bulletin boards of the various county courthouses. The statement shall set forth the source of all income and a summary of all expenditures in a plain and simple manner that can be easily understood by all taxpaying citizens. The statement shall also contain a report of all money owed by the county, current bills excepted, of the number of tax delinquents, and the total amount of tax delinquency.

(Ga. L. 1952, p. 337, §§ 1, 2.)

OPINIONS OF THE ATTORNEY GENERAL

Use of public funds to publish tax delinquent list approved. - Board of commissioners of a county can spend public funds to publish a list of delinquent taxpayers in the local newspaper. 1970 Op. Att'y Gen. No. U70-203.

RESEARCH REFERENCES

C.J.S. - 20 C.J.S., Counties, § 318.

36-1-7. Submission to grand jury of sworn returns of receipts and disbursements; approval or disapproval; appearance to explain errors; failure to make return.

  1. The judges of the probate courts, county treasurers, clerks of the superior courts, and sheriffs of the various counties shall make a return, under oath, to the grand juries of their respective counties on the first day of each term of the superior court. The return shall set forth a just and true statement of the amount of money belonging to the county which was received by them and the source from which the money was received, along with their expenditures, accompanied by a copy of the most recent financial statement or annual audit of the financial affairs of the county offices subject to this Code section.
  2. When the returns provided for in subsection (a) of this Code section have been made, the grand jury shall examine the same. If the returns are found to be correct, the grand jury shall endorse its approval thereon and attach the same to its general presentments, to be filed in the office of the clerk of the superior court. If the returns are found to be incorrect, the grand jury, through its foreman, shall return them to the officer making the same, shall plainly and distinctly set forth in writing the grounds of its disapproval, and shall require the officer to appear before the jury and explain the errors.
  3. Should any officer fail or refuse to make the return required by subsection (a) of this Code section, the foreman of the grand jury shall immediately notify the presiding judge of such failure. The judge shall issue an order requiring the delinquent officer to come forward and make the return required or, in default thereof, to be attached for contempt.

    (Ga. L. 1876, p. 13, §§ 1-3; Code 1882, §§ 508a, 508b, 508c; Civil Code 1895, §§ 364, 365, 366; Civil Code 1910, §§ 413, 414, 415; Code 1933, §§ 23-1201, 23-1202, 23-1203; Ga. L. 1996, p. 842, § 1.)

Cross references. - Frequency with which grand jury must perform duties, § 15-12-71 .

Cross references. - Accounting for public funds generally, T. 45, C. 8.

RESEARCH REFERENCES

Am. Jur. 2d. - 38 Am. Jur. 2d, Grand Jury, § 34 et seq. 63C Am. Jur. 2d, Public Officers and Employees, §§ 256 et seq., 340.

C.J.S. - 20 C.J.S., Counties, § 314 et seq. 38A C.J.S., Grand Juries, § 88 et seq.

36-1-8. Investment of certain tax proceeds in authorized bonds; registration of bonds.

  1. The officer or officers charged with the administration of the fiscal affairs of the several counties and with the custody and control of such funds may invest all sums collected under the requirements of Article IX, Section V, Paragraph VI of the Constitution of this state, for the purpose of paying the principal of bonded indebtedness of such counties, which sums are not actually payable on the principal within 12 months from the date of collection thereof, in valid outstanding bonds of the county or some other county of the state which have been duly validated, or in valid outstanding bonds of this state or of the United States. Such officer or officers may keep the funds so invested in such bonds, with the privilege of changing the investment from the character of the bonds named to another from time to time as such officer or officers may direct until such time before the maturity of outstanding obligations as may be necessary to dispose of the bonds in order to meet such obligations at maturity.
  2. Whenever and as soon as the sinking fund of any county has been invested in the manner specified in subsection (a) of this Code section, the officer or officers of the county charged with the administration of the fiscal affairs of the county shall proceed forthwith to have the securities in which such funds are so invested registered in the name of the county, provided the bonds by their terms under the conditions of their issue are capable of being registered in the name of the owner.

    (Ga. L. 1924, p. 86, §§ 1, 2; Code 1933, §§ 87-706, 87-707; Ga. L. 1983, p. 3, § 57.)

Law reviews. - For note discussing and comparing the prudent man rule and the legal list rule in trustee investment, see 15 Mercer L. Rev. 530 (1964).

JUDICIAL DECISIONS

Requirements not absolute. - It must be observed that neither Ga. L. 1917, p. 199, § 1 (see now O.C.G.A. § 36-6-16 ) nor Ga. L. 1924, p. 86, §§ 1, 2 (see now O.C.G.A. § 36-1-8 ) makes their requirements absolute; county treasurers may follow the provisions of either of these statutes, and thereby become absolutely safe from loss, as well as making safe the public funds with which the treasurers are entrusted; however, it appears the county treasurer may keep the funds in the treasurer's possession so long as the county treasurer is prepared to pay them out when lawfully authorized and required so to do. Century Indem. Co. v. Fidelity & Deposit Co., 175 Ga. 834 , 166 S.E. 235 (1932); Allen v. Henderson, 48 Ga. App. 74 , 172 S.E. 94 (1933).

This section provides that funds collected for the purpose of payment of principal and interest of bonded indebtedness under the Constitution "may" be invested in valid outstanding bonds of such county or some other county of the state, which have been duly validated, or valid outstanding bonds of the State of Georgia or of the United States. Allen v. Henderson, 48 Ga. App. 74 , 172 S.E. 94 (1933).

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, §§ 256, 339 et seq.

36-1-9. Payment into county treasury.

Any county official, officer, or employee who is charged with the responsibility of collecting, receiving, or disbursing any fees, fines, forfeitures, costs, commissions, allowances, penalties, funds, or moneys, or any other emolument or perquisite for any other county official, officer, or employee who has been placed upon a salary payable from county funds in lieu of receiving such compensation, when provision has been made by law for such compensation to become the property of and payable to the county, may pay said funds directly into the county treasury upon their receipt.

(Ga. L. 1964, p. 337, § 1; Ga. L. 1969, p. 3655, § 1; Ga. L. 1971, p. 3563, § 1; Ga. L. 1982, p. 2107, § 30; Ga. L. 1992, p. 1219, § 1.)

RESEARCH REFERENCES

C.J.S. - 20 C.J.S., Counties, § 314 et seq.

36-1-10. Employment of accountant to examine books.

The county governing authority is authorized, whenever it deems it necessary to do so, to employ an expert accountant to examine and report on the books, vouchers, and accounts of any county officer whose duty it is under the law to handle county funds. The expert accountant may reside in the county in which he is to be employed or elsewhere.

(Ga. L. 1901, p. 57, § 1; Civil Code 1910, § 418; Code 1933, § 23-1301.)

Cross references. - Budgets and audits of counties and municipalities, T. 36, C. 81.

JUDICIAL DECISIONS

Section does not impair power of grand jury. - Sections 416, 417, and 418 of former Civil Code 1910 (see O.C.G.A. § 36-1-10 ) were not intended to and do not take away from the grand jury the grand jury's power to investigate, inspect, and examine the books and records of county officers, or, where the officers deem it necessary, to appoint one or more citizens of the county to do so, as prescribed by former Penal Code 1910, §§ 840 and 841. McLarty v. Fulton County, 52 Ga. App. 445 , 183 S.E. 646 (1936).

Applicability of section to county having city of over 85,000. - Section 841 of Penal Code 1910 (see § 15-12-76 [repealed]) is valid and applies to counties having a city of more than 85,000, except that it does not authorize the appointment of expert accountants by the county commissioners or ordinary (now judge of the probate court), as the case may be, to examine the books and accounts of county officers, as by virtue of former Code 1910, §§ 416 through 418 (see now O.C.G.A. § 36-1-10 ). In such counties the clerk of the county commissioners is ex officio auditor and the clerk is required to make such examination whenever called on by the county commissioners. McLarty v. Fulton County, 52 Ga. App. 445 , 183 S.E. 646 (1936).

Officer employed under section a public officer. - When a statute by implication authorizes the county commissioners to appoint an officer in and for a county, the action of the commissioners in so doing is done by the commissioners as an agency of the state. The relation between the county and the county attorney does not rest upon contract, but arises from appointment authorized by a legislative enactment. An individual who has a designation or title given the individual by law, and who exercises functions concerning the public assigned to the individual by law, is a public officer. Stelling v. Richmond County, 81 Ga. App. 571 , 59 S.E.2d 414 (1950).

Residency requirement. - In the case of a county auditor, the residency requirement of former Code 1933, § 89-101(7) (see now O.C.G.A. § 15-6-59 ) was dispensed with by former Code 1933, § 23-1301 (see now O.C.G.A. § 36-1-10 ). However, the requirement that a county officer, whether elected or appointed, be a qualified voter remained absolute. Lester Witte & Co. v. Rabun County, 245 Ga. 382 , 265 S.E.2d 4 (1980).

Cited in Watkins v. Tift, 177 Ga. 640 , 170 S.E. 918 (1933); Booth v. Mitchell, 179 Ga. 522 , 176 S.E. 396 (1934); Burke v. Wheeler County, 54 Ga. App. 81 , 187 S.E. 246 (1936); Mathew v. Ellis, 214 Ga. 665 , 107 S.E.2d 181 (1959).

OPINIONS OF THE ATTORNEY GENERAL

Accountant not a certified public accountant. - County commissioners are authorized to employ an accountant who is not a certified public accountant to audit county books. 1968 Op. Att'y Gen. No. 68-46.

RESEARCH REFERENCES

C.J.S. - 20 C.J.S., Counties, § 208 et seq.

36-1-11. Additional temporary personnel and equipment for assistance of county officers or departments.

The governing authorities of the various counties shall have the authority to expend county funds for the purpose of employing such additional temporary personnel and providing such equipment and supplies as in their respective judgments shall be necessary and advisable, in order that such personnel and equipment might assist any county officer, official, or department in discharging his or its duties and responsibilities in an efficient and orderly fashion. Nothing contained within this Code section shall be construed so as to abrogate the authority of such officers and officials to select the personnel who shall be employed within their respective offices and departments.

(Ga. L. 1968, p. 447, § 1.)

JUDICIAL DECISIONS

Authority to pay salary. - County commissioners can expend county funds for the limited purpose of paying salary of personnel to aid and assist in administration of county government. Whatley v. Taylor County, 224 Ga. 669 , 164 S.E.2d 121 (1968).

OPINIONS OF THE ATTORNEY GENERAL

County may employ additional personnel. - County is authorized to employ personnel to assist the tax assessors in maintaining the tax digest and the tax equalization program in the county. 1969 Op. Att'y Gen. No. 69-25.

Governing authority of a county may hire temporary personnel to assist the clerk of the superior court. 1969 Op. Att'y Gen. No. 69-400.

This section authorizes the county commissioners to employ a secretary for the sheriff on a temporary basis. Op. Att'y Gen. No. U71-11.

County may not pay salary to employee on fee basis. - Governing authority of a county is not authorized to pay the salary of a semipermanent employee of a county officer who is on a fee basis. 1969 Op. Att'y Gen. No. 69-478.

When compensation of deputy sheriff is fixed by a local Act, the county commissioners have no authority to increase the compensation. 1970 Op. Att'y Gen. No. U70-64.

RESEARCH REFERENCES

ALR. - Particular purposes within contemplation of statute authorizing issuance of bonds or use of funds by school district for specified purposes, 124 A.L.R. 883 .

36-1-11.1. Expenditure of funds for insurance and employment benefits.

  1. The governing authority of any county is authorized to provide, and to expend county funds for the provision of, group health, life, disability, and liability insurance, retirement or pension coverage, social security and employment security coverage, and other similar or related employment benefits for members of the county governing authority and for elected county officers and the personnel thereof, as well as for the dependents and beneficiaries of such officials and personnel; provided, however, that no member of a county governing authority may become vested in the provision of any retirement or pension benefits authorized by this subsection until after the next general election in which said official stands for reelection.
  2. Any prior expenditure of county funds in the manner authorized by this Code section is validated and confirmed; and no person shall be liable in any respect by reason of his or her participation in any prior provision of the benefits authorized by this Code section. (Code 1981, § 36-1-11.1 , enacted by Ga. L. 1989, p. 1284, § 1; Ga. L. 1995, p. 924, § 1; Ga. L. 1996, p. 1258, § 1.)

36-1-12. Courthouse to remain open during normal working hours.

It shall be the duty and responsibility of the governing authority of each county of this state to keep the county courthouse and the county offices maintained therein open during normal working hours for the transaction of the public's business. As used in this Code section, "normal working hours" means a minimum of 40 working hours during each calendar week, except for those weeks during which public and legal holidays, which are recognized and designated as such by Georgia law or by the governing authority of the county, are observed.

(Code 1933, § 23-103, enacted by Ga. L. 1976, p. 1522, § 1.)

Cross references. - Hours of operation of office of superior court clerk, § 15-6-93 .

JUDICIAL DECISIONS

Courthouse and offices must be open for public's business. - Under this section it is not only the duty of the county commissioners to keep the courthouse building and county offices therein available, but it is also the commissioner's duty to see that county offices are open for the transaction of the public's business. Mobley v. Polk County, 242 Ga. 798 , 251 S.E.2d 538 (1979).

Governing authority to determine hours. - Legislature has delegated to the governing authority the right to determine normal working hours with a minimum of 40 working hours during each week. Mobley v. Polk County, 242 Ga. 798 , 251 S.E.2d 538 (1979).

OPINIONS OF THE ATTORNEY GENERAL

Applicability of section. - This section, in referring to "county offices", is intended to regulate the hours of only those offices over which the governing authority of the county exercises control. 1976 Op. Att'y Gen. No. U76-35 (see O.C.G.A. § 36-1-12 ).

36-1-13. Speculation in county orders by county officer.

Any public officer of any county in this state who buys up at a discount or in any manner speculates in what are known as "county orders," "jury scrip," or any other order or scrip which is to be paid out of any public fund of this state or of any county in this state shall be guilty of a misdemeanor and shall be removed from office.

(Ga. L. 1878-79, p. 79, § 1; Code 1882, § 4562g; Penal Code 1895, § 277; Penal Code 1910, § 281; Code 1933, §§ 23-9909, 23-1610.)

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, § 365.

36-1-14. Interested transactions prohibited; removal from office for violation.

  1. No county governing authority, any member thereof, or any other county officer authorized by law to use public or county funds for the purchase of goods or property of any kind for public or county purposes shall purchase such goods or property from any store in which such county governing authority, any member thereof, or other county officer is an employee, or in which he is directly or indirectly interested, or from any person or partnership of which he is a member or by whom he is employed, unless by sanction of the majority of the members of the county governing authority or unless it is made clearly to appear that such individual, partnership, or owner of the store offers and will sell the goods or property as cheaply as or cheaper than the same can be bought elsewhere.
  2. Any county governing authority, any member thereof, or any county officer violating subsection (a) of this Code section shall be removed from office upon proper proceedings instituted by any taxpayer in the county. Any contract made in violation of subsection (a) of this Code section shall be illegal.

    (Ga. L. 1898, p. 105, §§ 1, 2; Ga. L. 1899, p. 68, § 1; Ga. L. 1901, p. 81, § 1; Civil Code 1910, §§ 393, 394; Code 1933, §§ 23-1713, 23-1714.)

Law reviews. - For article surveying important general legal principles of municipal and county government purchasing and contracting in Georgia, see 16 Mercer L. Rev. 371 (1965).

JUDICIAL DECISIONS

By its terms this section is of general application. Moore v. Whaley, 189 Ga. 647 , 7 S.E.2d 394 (1940).

Section subject to qualification by special Act. - This section, so far as it refers to county commissioners, is subject to qualification by special Acts under Ga. Const. 1877, Art. XI, Sec. III, Para. I (see now Ga. Const. 1983, Art. IX, Sec. I, Para. I), and the special Acts need not be uniform. Robitzsch v. State, 189 Ga. 637 , 7 S.E.2d 387 (1940); Moore v. Whaley, 189 Ga. 647 , 7 S.E.2d 394 (1940).

Section not preempted by Georgia Constitution. - Georgia Const. 1976, Art. IX, Sec. I, Para. VIII (see now Ga. Const. 1983, Art. IX, Sec. I, Para. III), providing for removal of county officers for malpractice in office, does not preempt this section which prohibits use of county funds by county commissioners for purchases of goods or property in which the commissioners have an interest. Palmer v. Wilkins, 163 Ga. App. 104 , 294 S.E.2d 355 (1982).

General Assembly had authority to effect a pro tanto repeal of the general law contained in this section, by making the provisions of this section inapplicable to the commissioners of a named county. Moore v. Whaley, 189 Ga. 647 , 7 S.E.2d 394 (1940).

Not applicable to mere acceptance of order for payment. - This section does not apply to an acceptance of an order for payment submitted by a materialman on a contract for the building of a road. Eatonton Oil & Auto Co. v. Greene County, 53 Ga. App. 145 , 185 S.E. 296 (1936).

Quo warranto is not the proper remedy for violation of this section. McDonough v. Bacon, 143 Ga. 283 , 84 S.E. 588 (1915).

Due process requirement for proceedings. - Phrase "upon proper proceedings" used in subsection (b) implies that proceedings will be conducted in accordance with due process requirements, and it is not necessary to specify the exact procedure to be followed. Palmer v. Wilkins, 163 Ga. App. 104 , 294 S.E.2d 355 (1982).

Commissioner's transfer of building, which benefitted county, did not require commissioner's removal. - Trial court properly harmonized Ga. L. 1983, pp. 4594, 4603, § 14, the Local Act creating the Miller County Board of Commissioners, and O.C.G.A. § 36-1-14 to find that a commissioner's actions in transferring a building the commissioner owned to the county, which benefitted the county at no cost to taxpayers, did not require the commissioner's removal. Richardson v. Phillips, 309 Ga. App. 773 , 711 S.E.2d 358 (2011).

Sufficiency of evidence for summary judgment. - Evidence that the hauling fee paid to a county commissioner was the same as that which would have been paid to anyone else does not, on motion for summary judgment where all inferences are construed against the movant, satisfy the requirement that it shall clearly appear that the goods purchased were as cheap or cheaper than the goods could be bought elsewhere. Dalton Rock Prods. Co. v. Fannin County, 136 Ga. App. 649 , 222 S.E.2d 93 (1975).

Claim for removal from office not rendered moot by the completion of the questioned transaction. - Taxpayer's claims seeking the removal of a county commissioner from office for violation of conflict of interest laws, Ga. Laws 1983, pp. 4594, 4603, § 14, and O.C.G.A. § 36-1-14 , had never been determined; nor were the issues moot, although the transaction leading to the claims had been completed. Therefore, a trial court erred in dismissing the claims as moot. Richardson v. Phillips, 302 Ga. App. 305 , 690 S.E.2d 918 (2010).

Ordinance not preempted by statute. - Miller County, Ga., Ordinance No. 10-01, § 3 could not be preempted by O.C.G.A. § 36-1-14 because § 3 did not impair the statute's operation but rather strengthened and augmented the statute; the exception in § 3 was more narrow than in O.C.G.A. § 36-1-14 , requiring that a majority of the Board of Commissioners of Miller County approve the contract or transaction after establishing that the goods and the County had authority, as an incident of the county's home rule power, to amend Ga. L. 1983, p. 4594, § 14. Bd. of Comm'rs v. Callan, 290 Ga. 327 , 720 S.E.2d 608 (2012).

Cited in Eatonton Oil & Auto Co. v. Greene County, 53 Ga. App. 145 , 185 S.E. 296 (1936); Colonial Oil Co. v. United States Guarantee Co., 56 F. Supp. 545 (S.D. Ga. 1944).

OPINIONS OF THE ATTORNEY GENERAL

Purchase of insurance from wife. - County board of education may purchase insurance from the wife of a member of the board when there is no direct or indirect benefit gained by the member. 1960-61 Op. Att'y Gen. p. 158.

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, §§ 169 et seq., 181 et seq., 194, 371.

C.J.S. - 67 C.J.S., Officers and Public Employees, §§ 347, 348, 349.

ALR. - Relation as creditor of contracting party as constituting interest within statute or rule of common law against public officer being interested in contract with the public, 73 A.L.R. 1352 .

Relationship as disqualifying interest within statute making it unlawful for an officer to be interested in a public contract, 74 A.L.R. 792 .

Public officer's relation to corporation as officer or stockholder as constituting interest within statute or rule of common law against public officer being interested in contract with public, 140 A.L.R. 344 .

36-1-15. Prohibition, regulation, and taxation of fortunetelling and similar practices.

The county governing authority may by proper ordinance prohibit, regulate, or tax the practice of fortunetelling, phrenology, astrology, clairvoyance, palmistry, or other kindred practices, businesses, or professions where a charge is made or a donation accepted for the services and where the practice is carried on outside the corporate limits of the municipality. The tax, if any, which is imposed shall not exceed the sum of $1,000.00 per year. Such ordinances may prescribe the punishment to be imposed for violations, but such punishment shall not exceed imprisonment for 60 days or a fine of $500.00 or both. Prosecutions for violations shall be in the magistrate court of the county as provided in Chapter 10 of Title 15.

(Ga. L. 1953, Nov.-Dec. Sess., p. 311, § 1; Ga. L. 1984, p. 505, § 1.)

JUDICIAL DECISIONS

City ordinance presumed valid. - Presumption in favor of the validity of a city ordinance is not overcome in a case involving a constitutional attack thereon when it is merely assumed that the practice of fortunetelling is a legitimate calling which cannot be prohibited by the city under the city's police power. Williams v. Jenkins, 211 Ga. 10 , 83 S.E.2d 614 (1954).

RESEARCH REFERENCES

Am. Jur. 2d. - 36 Am. Jur. 2d, Fortunetelling, § 1 et seq.

C.J.S. - 16A C.J.S., Constitutional Law, §§ 777 et seq., 839, 851 et seq., 906 et seq.

ALR. - Validity of license tax or fee on show or place of amusement, 111 A.L.R. 778 .

Regulation of astrology, clairvoyancy, fortunetelling, and the like, 91 A.L.R.3d 766.

36-1-16. Garbage, trash, waste, or refuse not to be transported across state or county boundaries for dumping without permission; exemption.

  1. No person, firm, corporation, or employee of any municipality shall transport, pursuant to a contract, whether oral or otherwise, garbage, trash, waste, or refuse across state or county boundaries for the purpose of dumping the same at a publicly or privately owned dump, unless permission is first obtained from the governing authority of the county in which the dump is located and from the governing authority of the county in which the garbage, trash, waste, or refuse is collected.
  2. Subsection (a) of this Code section shall not apply to the transportation of any material which is regulated pursuant to Article 2 of Chapter 5 of Title 12, the "Georgia Water Quality Control Act," or Article 1 of Chapter 9 of Title 12, "The Georgia Air Quality Act."

    (Ga. L. 1971, p. 445, § 1; Ga. L. 1978, p. 1911, § 1; Ga. L. 1990, p. 1345, § 1; Ga. L. 1992, p. 918, § 3; Ga. L. 1993, p. 91, § 36.)

Cross references. - Solid waste handling, disposal, generally, T. 12, C. 8.

Law reviews. - For survey article on local government law, see 59 Mercer L. Rev. 285 (2007) and 60 Mercer L. Rev. 262 (2008). For survey article on zoning and land use law, see 59 Mercer L. Rev. 493 (2007) and 60 Mercer L. Rev. 457 (2008). For note on 1992 amendment of this Code section, see 9 Ga. St. U. L. Rev. 186 (1992).

JUDICIAL DECISIONS

Constitutionality. - O.C.G.A. § 36-1-16 is constitutional, and the statute gives Georgia counties a role in protecting the public health and welfare with respect to the operation of waste dumps within the counties' respective boundaries. Diamond Waste, Inc. v. Monroe County, 939 F.2d 941 (11th Cir. 1991).

O.C.G.A. § 36-1-16(a) is unconstitutional because the statute impairs interstate commerce by improperly giving Georgia counties the power to veto the importation of solid waste. Fulton County v. City of Atlanta, 280 Ga. 353 , 629 S.E.2d 196 (2006).

Unconstitutional application. - County's application of O.C.G.A. § 36-1-16 to prohibit a waste management company from operating a landfill, which was owned by a municipality but located in the county, as a regional landfill, i.e., from receiving waste from outside the county and from outside the state, violated the company's constitutional commerce clause right to engage in interstate commerce without discriminatory intervention. Diamond Waste, Inc. v. Monroe County, 731 F. Supp. 505 (M.D. Ga. 1990), aff'd in part, vacated in part on other grounds, 939 F.2d 941 (11th Cir. 1991).

County resolution preventing a waste management firm from importing waste of any kind into the county from other counties and other locations violated the commerce clause of the federal constitution. Diamond Waste, Inc. v. Monroe County, 939 F.2d 941 (11th Cir. 1991).

Judgments from federal court binding on state court during appeal. - Since simultaneous actions challenging the constitutionality of O.C.G.A. § 36-1-16 were pending in state and federal court, and an appeal from the federal district court order was pending, estoppel by judgment precluded state court consideration of the matter on appeal because judgments from a federal court remain binding during the pendency of an appeal. Mayor of Forsyth v. Monroe County, 260 Ga. 296 , 392 S.E.2d 865 (1990).

RESEARCH REFERENCES

ALR. - Validity of statutory or municipal regulations as to garbage, 72 A.L.R. 520 ; 135 A.L.R. 1305 .

Regulation and licensing of private garbage or rubbish removal services, 83 A.L.R.2d 799.

36-1-17. Authority of county employees to issue citations for violation of ordinances and regulations in counties having population of 550,000 or more; jurisdiction; effect of failure to respond.

In all counties of this state having a population of 550,000 or more according to the United States decennial census of 1980 or any future such census, any employee who is authorized to enforce any county code, ordinance, regulation, rule, or other order, including such related ordinances, codes, and regulations as drainage regulations, soil erosion and sedimentation control regulations, subdivision and zoning regulations, water and sewer regulations, and any other land development or construction regulations of such counties, shall have the authority to issue citations to any person who shall violate any such county code, ordinance, regulation, or order which shall be in effect in such counties. Such citations shall command the appearance of such person at a designated regular session of a court in such county having the jurisdiction of a commitment court throughout the entire county. At such time and place, the court shall act as a court of inquiry with all the powers and authorities specified in Article 2 of Chapter 7 of Title 17. In the event that any such person shall fail to appear in response to such citation, a warrant shall be issued for the arrest of the person for violation of such county code, ordinance, regulation, rule, or order without the necessity of any further action.

(Ga. L. 1981, p. 3261, § 1.)

OPINIONS OF THE ATTORNEY GENERAL

Probate court jurisdiction over violations of county ordinances. - Probate court has jurisdiction over violations of county ordinances in counties of 550,000 or more pursuant to O.C.G.A. § 36-1-17 . 1995 Op. Att'y Gen. No. U95-1.

36-1-18. Authority of counties having population of 550,000 or more to assess against cost of repairing streets as necessitated by private construction activity; liens.

  1. In all counties of this state having a population of 550,000 or more according to the United States decennial census of 1980 or any future such census, the county governing authority shall be empowered by ordinance or resolution to assess against any property the cost of reopening or repairing any public way, street, road, right of way, or highway, or the cost of cleaning up from any public way, street, road, right of way, or highway any debris, dirt, sediment, soil, trash, building materials, and other physical materials originating on such property, as a result of any private construction activity carried on by any developer, contractor, subcontractor, or owner of such property.
  2. Any assessment authorized under subsection (a) of this Code section, as well as the interest thereon and the expense of collection, shall be a lien against the property so assessed coequal with the lien of other taxes and shall be enforced in the same manner as are state and county ad valorem property taxes by issuance of a fi. fa. and levy and sale as set forth in Title 48, the "Georgia Public Revenue Code."

    (Ga. L. 1981, p. 3259, §§ 1, 2.)

36-1-19. Appropriation for charitable grants or contributions in counties having population greater than 550,000; establishment of boards or councils to devise procedures and advise governing authority.

Reserved. Repealed by Ga. L. 1996, p. 1415, § 1, effective July 1, 1996.

Editor's notes. - This Code section was based on Ga. L. 1980, p. 3406, §§ 1, 2; Ga. L. 1982, p. 2107, § 31.

36-1-19.1. Appropriations for charitable grants or contributions in counties having population of 400,000 or more; boards or councils to establish procedures and advise governing authorities.

  1. In all counties of this state having a population of 400,000 or more according to the United States decennial census of 1990 or any future such census, the governing authorities of such counties are authorized to provide by ordinance for the appropriation of money for and the making of grants or contributions to any corporation, association, institution, or individual for purely charitable purposes, provided that the activities funded by any such grants or contributions shall take place within the county making such grant or contribution.
  2. In connection with the appropriation of money for or the making of any grant or contribution for purely charitable purposes, the governing authority of any county within this state may establish such boards or councils as it may determine to establish the procedures by which such grants or contributions are made and to advise the governing authorities of such counties generally with respect to such grants or contributions.
  3. Appropriations, grants, and contributions made pursuant to this Code section shall be in the form of contracts for services.
  4. For the purpose of this Code section, "purely charitable purposes" shall mean charitable, benevolent, or philanthropic purposes for health, education, social welfare, arts and humanities, or environmental organizations.
  5. No funds may be appropriated, granted, or contributed under this Code section for a purpose which is in violation of the laws of this state; provided, however, that this subsection shall not be interpreted to prohibit a good faith expenditure of funds for purposes authorized by law. (Code 1981, § 36-1-19.1 , enacted by Ga. L. 1996, p. 1415, § 2; Ga. L. 1999, p. 81, § 36.)

36-1-20. Ordinances for governing and policing of unincorporated areas of county.

  1. The governing authority of each county, for the purpose of protecting and preserving the public health, safety, and welfare, is authorized to adopt ordinances for the governing and policing of the unincorporated areas of the county, violations of which ordinances may be punished by fine or imprisonment or both. Without limiting the generality of the foregoing, such ordinances may provide for traffic regulation, including adoption of the uniform rules of the road under Chapter 6 of Title 40, may provide for the regulation and control of litter in the same manner as municipal ordinances under Code Section 16-7-48, and may provide for the implementation and enforcement of any power or duty vested in the county governing authority.
  2. Each such ordinance shall specify the maximum punishment which may be imposed for a violation of the ordinance; and in no case shall the maximum punishment for the violation of any such ordinance exceed a fine of $1,000.00 or imprisonment for 60 days or both; provided, however, that for violation of a pretreatment standard or requirement adopted pursuant to the federal Clean Water Act the ordinance may specify that the fine may be up to $1,000.00 per day for each violation by an industrial user.
  3. Jurisdiction over violations of such county ordinances shall be in the magistrate court of the county; and procedure for enforcement of such ordinances shall be as provided in Article 4 of Chapter 10 of Title 15; provided, however, jurisdiction over ordinances having to do with traffic offenses shall be in the court or courts having jurisdiction over state traffic offenses.
  4. This Code section shall not affect the jurisdiction of or procedure in any other court which has jurisdiction over violations of county ordinances. (Code 1981, § 36-1-20 , enacted by Ga. L. 1984, p. 1086, § 1; Ga. L. 1990, p. 1345, § 2; Ga. L. 1991, p. 993, § 1.)

JUDICIAL DECISIONS

Cited in Kariuki v. DeKalb County, 253 Ga. 713 , 324 S.E.2d 450 (1985); Curves, LLC v. Spalding County, Georgia, 569 F. Supp. 2d 1305 (N.D. Ga. 2007).

OPINIONS OF THE ATTORNEY GENERAL

Jurisdiction over offense of open container of alcohol in vehicle. - In counties in which there is a state court, both the state court and the magistrate court of the county possess concurrent jurisdiction over the prosecution of individuals charged with violating a county ordinance prohibiting the possession of open containers of alcohol while operating a motor vehicle. 1992 Op. Att'y Gen. No. U92-3.

Regulation of trucks on residential roads. - County sheriff's department may enforce ordinances prohibiting trucks over ten wheels from using residential roads within county except when making temporary deliveries. 1996 Op. Att'y Gen. No. U96-17.

Traffic control ordinances. - Counties may enact ordinances regarding enforcement of traffic control devices by the use of cameras. 2000 Op. Att'y Gen. No. U2000-12.

36-1-21. Civil service system for county employees.

  1. The governing authority of any county is authorized to provide by ordinance or resolution for the creation of a civil service system for employees of the county, other than elected officials or persons appointed to positions for specified terms.
  2. Subsequent to the creation of a civil service system, the county governing authority which created the system may provide by ordinance or resolution that positions of employment within departments subject to the jurisdiction of elected county officers or subject to the jurisdiction of other commissions, boards, or bodies of the county shall be subject to and covered by the civil service system upon the written application of the elected county officer, commission, board, or body having the power of appointment, employment, or removal of employees of the officer, department, commission, board, or body. Once positions of employment are made subject to the civil service system, such positions shall not be removed thereafter from the coverage of the civil service system.
  3. A civil service system created pursuant to the authority of this Code section shall be administered in such manner and pursuant to such rules and regulations as may be provided for by resolution or ordinance of the county governing authority which created the system.
    1. The powers granted to the governing authorities of counties by this Code section:
      1. Shall not supersede or replace any power granted by any local constitutional amendment to the General Assembly to provide by law for a civil service or merit system for any county;
      2. Shall not supersede or replace any law enacted by the General Assembly pursuant to the authority of a local constitutional amendment described in subparagraph (A) of this paragraph; and
      3. Shall be in addition to any power granted by local constitutional amendment directly to the governing authority of any county to provide by ordinance or resolution for a civil service or merit system for such county.
    2. As used in paragraph (1) of this subsection, the term "local constitutional amendment" means any constitutional amendment described in subparagraph (a) of Paragraph IV of Section I of Article XI of the Constitution of the State of Georgia which has been continued in force and effect pursuant to the authority of said subparagraph (a) of said cited constitutional provision and which has not been repealed pursuant to the authority of subparagraph (b) of said cited constitutional provision. (Code 1981, § 36-1-21 , enacted by Ga. L. 1986, p. 764, § 1; Ga. L. 1988, p. 1627, § 1; Ga. L. 2001, p. 4, § 36.)

Code Commission notes. - Ga. L. 1986, p. 764, § 1 and Ga. L. 1986, p. 1586, § 1 both enacted Code sections designated 36-1-21. The Code section enacted by the latter Act was redesignated as Code Section 36-1-22 [repealed] pursuant to Code Section 28-9-5.

Law reviews. - For annual survey of local government law, see 38 Mercer L. Rev. 289 (1986).

JUDICIAL DECISIONS

Motion to create system. - Motion adopted by the board of county commissioners creating a county personnel system was a "resolution" within the meaning of O.C.G.A. § 36-1-21 . Wayne County v. Herrin, 210 Ga. App. 747 , 437 S.E.2d 793 (1993).

Inapplicable to system created by General Assembly. - Because a county tax commissioner's employees were within the county's civil service system, the county was properly granted summary judgment as to that issue, and hence, the county's personnel director was authorized to refuse to implement raises to the employees as the commissioner sought; moreover, the commissioner's reliance on O.C.G.A. § 36-1-21 did not change the result, as that statute expressly applied only to civil service systems created by county governing authorities, and the civil service system at issue was created by the Georgia General Assembly. Ferdinand v. Bd. of Comm'rs, 281 Ga. 643 , 641 S.E.2d 787 (2007).

Subsequent ordinance or resolution. - After the governing body of a county has authorized, by ordinance or resolution, the creation of a civil service commission to cover county employees other than elected officials or persons appointed for a definite term, it may by subsequent ordinance or resolution provide that employees of the departments of elected officials or other county bodies may, by written application of the elected official or other department head, seek to be brought under the civil service commission as well. Burbridge v. Hensley, 194 Ga. App. 523 , 391 S.E.2d 5 , cert. denied, 194 Ga. App. 911 , 391 S.E.2d 5 (1990).

Interim appointed sheriff's attempt, by letter to the county clerk, to have the sheriff's employees covered by the provisions of a civil service ordinance was invalid, since the county had not enacted a second ordinance or resolution pursuant to subsection (b) of O.C.G.A. § 36-1-21 providing that employees of elected officials could be made subject to the civil service system by written application of the elected official. Burbridge v. Hensley, 194 Ga. App. 523 , 391 S.E.2d 5 , cert. denied, 194 Ga. App. 911 , 391 S.E.2d 5 (1990).

Resolution of the board of county commissioners that allowed elected county officials to bring portions of employment within their department into the personnel system complied with the dictates of O.C.G.A. § 36-1-21 . Wayne County v. Herrin, 210 Ga. App. 747 , 437 S.E.2d 793 (1993).

Appointment and discharge of deputies. - Once positions in a sheriff's office have been made subject to a personnel or civil service system, a sheriff's authority to appoint deputies pursuant to O.C.G.A. § 15-16-23 is limited to vacancies created by the removal of employees in the manner provided under the applicable personnel or civil service system or vacancies created when employees resign or retire. Wayne County v. Herrin, 210 Ga. App. 747 , 437 S.E.2d 793 (1993).

Since the county created a personnel system applicable to the sheriff's department, a newly elected sheriff's termination of current employees without affording the employees due process rights in connection with the employees' dismissal and the sheriff's hiring of employees to replace the dismissed employees was improper. Wayne County v. Herrin, 210 Ga. App. 747 , 437 S.E.2d 793 (1993).

Since it was not clearly established at the time in question that a sheriff was bound by a county merit system and that employees of the sheriff had a property interest in the employees' jobs, the sheriff was entitled to qualified immunity from the employees' claim of wrongful termination from the employee's jobs. Aspinwall v. Herrin, 879 F. Supp. 1227 (S.D. Ga. 1994).

Deputy sheriffs in a county that had not adopted a civil service program were employees at will and lacked a property interest in the deputies' employment. Zimmerman v. Cherokee County, 925 F. Supp. 777 (N.D. Ga. 1995).

Under O.C.G.A. § 15-16-23 , sheriffs have absolute discretion in the hiring and firing of deputies and the only process by which this discretion may be limited is through adoption of a civil service system in compliance with subsection (b) of O.C.G.A. § 36-1-21 ; when a sheriff had not complied with such provision, deputies had no protected property interest in the deputies' positions. Brett v. Jefferson County, 925 F. Supp. 786 (S.D. Ga. 1996), aff'd in part and vacated in part, 123 F.3d 1429 (11th Cir. 1997).

Because sheriff had failed to satisfy statutory requirements for placing deputies under a civil service program, the deputies were at-will employees with no protected property interest in continued employment. Brett v. Jefferson County, 123 F.3d 1429 (11th Cir. 1997).

Political patronage of sheriff deputies. - Deputy sheriff's First Amendment political patronage claim failed because political loyalty was an appropriate requirement for the position of deputy sheriff as Georgia deputies had the same powers and duties as the sheriff; the civil service system, which prohibited the sheriff from making employment decisions on the basis of political affiliation, did not modify the duties of the sheriff's deputies and therefore had no effect on the First Amendment claim. Ezell v. Wynn, 802 F.3d 1217 (11th Cir. 2015).

Termination of employee. - Employee who was hired by a county solicitor general under O.C.G.A. § 15-18-71 was not an employee of the county, and the solicitor general did not bring the employee into the county's civil service system under O.C.G.A. § 36-1-21(b) . Therefore, the employee lacked a protected property interest in the job and could be terminated without cause and without a hearing. Thomas v. Lee, 286 Ga. 860 , 691 S.E.2d 845 (2010).

Court clerk not subject to county merit system. - County merit board can take no action affecting the clerk of the superior court and the clerk's employees unless the clerk of the superior court has asked that the clerk's office be subject to the merit system and the county has provided for such coverage through an appropriate resolution or ordinance. Gwinnett County v. Yates, 265 Ga. 504 , 458 S.E.2d 791 (1995).

Clerk of the Superior Court of Gwinnett County is not subject to the Gwinnett County Merit System. Gwinnett County v. Yates, 265 Ga. 504 , 458 S.E.2d 791 (1995).

No vested interest in continued employment shown. - In a racial discrimination suit, the trial court properly denied mandamus relief to the former employee because the former employee failed to show that the employer had a clear legal duty to maintain the former employee as an employee and there was no evidence showing that the former employee was ever a merit system employee with a vested interest in continued employment with the tax commissioner. Cochran v. Kendrick, 297 Ga. 655 , 778 S.E.2d 1 (2015).

Cited in Floyd v. Chaffin, 201 Ga. App. 597 , 411 S.E.2d 570 (1991); Epps v. Watson, F.3d (M.D. Ga. May 25, 2006).

RESEARCH REFERENCES

5B Am. Jur. Pleading and Practice Forms, Civil Service, § 2.

36-1-22. Business and occupational license taxes and fees.

Reserved. Repealed by Ga. L. 1993, p. 1292, § 6, effective January 1, 1995.

Editor's notes. - This Code section was based on Code 1981, § 36-1-22 , enacted by Ga. L. 1986, p. 1586, § 1; Ga. L. 1987, p. 3, § 36; Ga. L. 1988, p. 1734, § 1; Ga. L. 1989, p. 14, § 36.

36-1-23. Purchase from county of materials used in the construction of water systems, sewer systems, storm and drainage systems, buildings, or other facilities.

  1. No county shall require any person who performs services on his property or on private property pursuant to an agreement with an individual, corporation, partnership, association, or other private entity to purchase from the county any materials used in the construction or repair of any water system, sewer system, storm or drainage system, building, or other facilities on such property.  Any county which sells such materials used in the construction of such facilities shall be required to publish the acceptable manufacturing or engineering standards of such materials sold by the county and such other materials, if any, which the county finds acceptable for the construction of such facilities.  In the construction of any such facility, the use by any person or other entity of materials which are not purchased from the county shall not render any such facility or project ineligible for acceptance as a public right of way or utility project if the materials used meet the acceptable standards published by the county.
  2. Nothing in this Code section shall affect the authority of a county to enact building, construction, electrical, fire, or other codes which require materials used in the construction or repair of water systems, sewer systems, storm or drainage systems, buildings, or other facilities to meet or satisfy certain standards.
  3. Any county officer or employee who, without sufficient cause, refuses to accept as a public right of way or utility project any water and sewer system or other facility constructed with acceptable materials not purchased from the county shall be guilty of a misdemeanor.
  4. Upon the final conviction of any county officer or employee of violating subsection (c) of this Code section, the employment of such officer or employee by the county shall immediately be terminated. (Code 1981, § 36-1-23 , enacted by Ga. L. 1991, p. 1002, § 1; Ga. L. 1992, p. 3212, § 1.)

Editor's notes. - Former Code Section 36-1-23, pertaining to preservation and protection of abandoned or unmaintained cemeteries, was enacted by Ga. L. 1988, p. 318, § 1 and repealed by Ga. L. 1989, p. 14, § 36.

36-1-24. Training classes for clerks of governing authority of county.

  1. Any person hired or appointed to serve as the clerk of the governing authority of any county in this state shall attend and complete a course of training on matters pertaining to the basic performance of his or her official duties.  Such training shall be conducted by the University of Georgia under the supervision of the Carl Vinson Institute of Government at such time and place as shall be determined by the Carl Vinson Institute of Government.
  2. The personnel of the Carl Vinson Institute of Government are authorized to work with the members of the Association County Clerks of Georgia and the Association County Commissioners of Georgia in establishing and operating the training course provided for in subsection (a) of this Code section, as well as establishing the rules and regulations governing attendance of such training.
  3. All reasonable expenses of attending the training class required by this Code section shall be paid from funds appropriated by the county governing authority for such purposes. (Code 1981, § 36-1-24 , enacted by Ga. L. 1990, p. 1689, § 1.)

36-1-25. Official minutes of meetings.

Official minutes of the meetings of a county governing authority shall be maintained in the offices of the county governing authority. Copies of contracts, maps, or similar material or documents related to actions taken by a county governing authority may be included in the minutes or incorporated by reference to an alternate location. Where incorporated by reference, such documents shall be stored in a central location or locations identified by ordinance or resolution of the county governing authority.

(Code 1981, § 36-1-25 , enacted by Ga. L. 1994, p. 662, § 1.)

JUDICIAL DECISIONS

Zoning map properly incorporated by reference. - County zoning ordinance properly incorporated by reference an official zoning map as the board of commissioners had a zoning map before the board when the board considered the ordinance, the zoning map was in existence when a limited liability limited partnership (LLLP) bought the property and that map was kept in the zoning administrator's office, the new zoning administrator's uncertainty about which of two maps was the official map did not render the entire zoning ordinance invalid, and it was clear that the LLLP's land was not zoned for a landfill. Mid-Georgia Envtl. Mgmt. Group, L.L.L.P. v. Meriwether County, 277 Ga. 670 , 594 S.E.2d 344 (2004).

36-1-26. Contracts for utility services; terms and conditions.

The governing authority of any county in this state may authorize the execution of one or more contracts which specify the rates, fees, or other charges which will be charged and collected by the county for electric, natural gas, or water utility services to be provided by the county to one or more of its utility customers. Any such contract shall be subject to the following conditions and limitations:

    1. Except as provided in subparagraph (B) of this paragraph, no such contract shall be for a term in excess of ten years.
    2. No such contract for solar utility services or for wind utility services shall be for a term in excess of 20 years;
  2. Any such contract which is for a term in excess of two years shall include commercially reasonable provisions under which the rates, fees, or other charges shall be adjusted with respect to inflationary or deflationary factors affecting the provision of the utility service in question; and
  3. Any such contract shall include commercially reasonable provisions relieving the county from its obligations under the contract in the event that the county's ability to comply with the contract is impaired by war, natural disaster, catastrophe, or any other emergency creating conditions under which the county's compliance with the contract would become impossible or create a substantial financial burden upon the county or its taxpayers. (Code 1981, § 36-1-26 , enacted by Ga. L. 1998, p. 1113, § 1; Ga. L. 2019, p. 605, § 1/SB 95.)

The 2019 amendment, effective July 1, 2019, rewrote paragraph (1), which read: "No such contract shall be for a term in excess of ten years;".

36-1-27. Referendum approval required prior to expenditure of public funds for establishment of fixed guideway transit; definitions; submission of the question to qualified voters; ballot language.

  1. As used in this Code section, the term:
    1. "Expenditure of public funds" means:
      1. Utilizing the proceeds of any tax, proceeds from the county general fund, or any other county proceeds;
      2. Incurring general obligation debt, revenue debt, or other multiyear obligations; or
      3. Entering into any intergovernmental agreement with an authority or instrumentality of the state which would impact future tax revenue or obligate the payment of tax revenue, general obligation debt, revenue debt, or other multiyear obligations.
    2. "Fixed guideway transit" means a public transportation system using and occupying a permanent, separate right of way for the exclusive use of public transportation, including, but not limited to, rails for use by trains or a bus rapid transit system.
    3. "Mass transportation" means any mode of transportation serving the general public which is appropriate to transport people by highways or rail.
    4. "Mass transportation regional system participant" means any county within a special district created pursuant to Article 5 of Chapter 8 of Title 48 in which mass transportation is provided within such special district, to such special district, or from such special district by a multicounty regional transportation authority created by an Act of the General Assembly, including but not limited to the Atlanta-region Transit Link "ATL" Authority or the Metropolitan Atlanta Rapid Transit Authority.
  2. Prior to an expenditure of any public funds for the establishment, maintenance, and operation of a fixed guideway transit in any county that is a mass transportation regional system participant, the governing authority of such county shall obtain approval from:
    1. The Atlanta-region Transit Link "ATL" Authority that such project is on the regional transit plan adopted by such authority pursuant to Code Section 50-39-12; and
    2. A majority of qualified voters of the county in a separate referendum question as provided for in this Code section.
  3. Prior to the issuance of the call for the referendum, the governing authority of the county that is a mass transportation regional system participant shall adopt a resolution which shall specify the type and location of a fixed guideway transit, the capital costs to establish such fixed guideway transit, the date upon which the capital costs to establish such fixed guideway transit shall be paid in full, and an estimate of the projected annual costs for maintenance and operation of such fixed guideway transit.
    1. Whenever the governing authority of any county that is a mass transportation regional system participant wishes to submit to the electors of such county the question of whether to expend public funds for a fixed guideway transit, any such governing authority shall notify the election superintendent of such county by forwarding to the superintendent a copy of a resolution of the governing authority calling for a referendum election. Such election shall be held with a general election, general primary election, or presidential preference primary. Upon receipt of the resolution, it shall be the duty of the election superintendent to issue the call for an election for the purpose of submitting the question of authorizing the expenditure of public funds for a fixed guideway transit to the voters of the county for approval or rejection. The election superintendent shall issue the call and shall conduct the election on a date and in the manner authorized under Code Section 21-2-540. The election superintendent shall cause the date and purpose of the election along with a copy of the resolution adopted pursuant to subsection (c) of this Code section to be published once a week for two weeks immediately preceding the date of the election in the official organ of such county. The ballot shall have written or printed thereon the following:
    2. All persons desiring to vote in favor of the question shall vote "Yes," and all persons desiring to vote against the question shall vote "No." If more than one-half of the votes cast are in favor of the question, then the expenditure of public funds by such county for a fixed guideway transit shall be deemed approved; otherwise, such expenditures shall continue to be prohibited. It shall be the duty of the election superintendent to hold and conduct such elections under the same rules and regulations as govern general elections. It shall be the superintendent's further duty to canvass the returns, declare the result of the election, and certify the result to the Secretary of State. The expense of the election shall be borne by the county holding the election.
  5. This Code section shall not apply to the extension of a fixed guideway transit or levy of applicable sales and use taxes authorized pursuant to an Act known as the "Metropolitan Atlanta Rapid Transit Authority Act of 1965," approved March 10, 1965 (Ga. L. 1965, p. 2243), as amended, or Part 2 of Chapter 9 of Title 32 for which any referendum required under such Act or part shall control, or to any project within a county or between counties which have approved such sales and use tax, provided that such project is wholly within the territorial boundaries of such county or counties. (Code 1981, § 36-1-27 , enacted by Ga. L. 2016, p. 862, § 1/SB 420; Ga. L. 2018, p. 377, § 4-5/HB 930.)

"( ) YES Shall the expenditure of public funds for a ( ) NO fixed guideway transit within ____________ County be approved?"

The 2018 amendment, effective May 3, 2018, substituted "Atlanta-region Transit Link 'ATL' Authority" for "Georgia Regional Transportation Authority" near the end of paragraph (a)(4); substituted the present provisions of subsection (b) for the former provisions, which read: "Prior to an expenditure of any public funds for the establishment, maintenance, and operation of a fixed guideway transit in any county that is a mass transportation regional system participant, the governing authority of such county shall obtain approval from a majority of qualified voters of the county in a separate referendum question as provided for in this Code section."; and, in the middle of subsection (e), substituted "known as the 'Metropolitan Atlanta Rapid Transit Authority Act of 1965,' approved March 10, 1965 (Ga. L. 1965, p. 2243), as amended, or Part 2 of Chapter 9 of Title 32" for "approved March 10, 1965 (Ga. L. 1965, p. 2243), as amended, the 'Metropolitan Atlanta Rapid Transit Authority Act of 1965,"', and inserted "or part". See Editor's notes for applicability.

Editor's notes. - Ga. L. 2018, p. 377, § 5-1(c)/HB 930, not codified by the General Assembly, provides that: "Tax, penalty, and interest liabilities for prior taxable years shall not be affected by the passage of Part I of this Act and shall continue to be governed by the provisions of Title 48 of the Official Code of Georgia Annotated as it existed immediately prior to the effective date of Part I of this Act." Part I of this Act became effective January 1, 2019.

CHAPTER 2 MILITIA DISTRICTS

Sec.

JUDICIAL DECISIONS

Effect of recognition of old district line by commissioners after change of line. - Public would not be estopped by any subsequent acts of the board of commissioners in recognizing an old line between two districts as the correct dividing line, had the district lines been changed in compliance with the requirements of law. Camp v. Trapp, 209 Ga. 298 , 71 S.E.2d 534 (1952).

Cited in United States v. Bibb County Democratic Executive Comm., 222 F. Supp. 493 (M.D. Ga. 1962); Grimes v. Clark, 226 Ga. 195 , 173 S.E.2d 686 (1970).

36-2-1. Division of county into militia districts.

  1. Each county is divided into militia districts according to its territory and population.
  2. Militia districts are to remain the same as presently organized until changed in the manner prescribed in this chapter.

    (Orig. Code 1863, §§ 453, 454; Code 1868, §§ 515, 516; Code 1873, §§ 481, 482; Code 1882, §§ 481, 482; Civil Code 1895, §§ 330, 331; Civil Code 1910, §§ 373, 374; Code 1933, §§ 23-201, 23-202.)

JUDICIAL DECISIONS

Cited in Johnson v. Chappell, 198 Ga. 162 , 30 S.E.2d 909 (1944).

36-2-2. Minimum requirements for districts.

Each militia district organized or changed must contain within its limits at least 200 persons 18 years of age or over who are residents at the time of the organization of the district and, in its formation, must not leave any older district with less than 200 such persons.

(Orig. Code 1863, § 455; Code 1868, § 517; Code 1873, § 483; Code 1882, § 483; Civil Code 1895, § 332; Civil Code 1910, § 375; Code 1933, § 23-203; Ga. L. 1982, p. 825, § 1.)

Cross references. - Composition of unorganized militia of the state, § 38-2-3 .

JUDICIAL DECISIONS

O.C.G.A. § 36-2-2 is mandatory. - Proceeding which seeks to create a new district, but leaves an old district with less than the required number of male persons subject to militia duty, is repugnant to this section. Johnson v. Chappell, 198 Ga. 162 , 30 S.E.2d 909 (1944).

Order void when existing district left understrength. - Order, by the proper county authority, approving a report of the commissioners appointed to lay out and establish a new militia district, is void since, by the establishment of the new district, an existing district is left with less than the required number of persons liable to militia duty. Johnson v. Chappell, 198 Ga. 162 , 30 S.E.2d 909 (1944).

OPINIONS OF THE ATTORNEY GENERAL

The 1982 amendment to O.C.G.A. § 36-2-2 does not require that any militia district boundaries be changed; any changes are to be initiated by the board of county commissioners in counties where the board is vested with this power by local law. 1982 Op. Att'y Gen. No. 82-94.

RESEARCH REFERENCES

ALR. - Enlistment or mustering of minors into military service, 140 A.L.R. 1508 .

36-2-3. Appointment of commissioners to change districts; employment and compensation of surveyor; approval of commissioners' report by judge of probate court.

Whenever it is necessary and expedient to lay out a new militia district, to change the lines of old districts, or to consolidate or abolish old districts, the judge of the probate court may, at any time, appoint three commissioners who are citizens of the district or districts from which it is proposed to make the new district or to change the lines thereof, whose duty it shall be to lay out and define the lines and to report the same to the judge of the probate court. The commissioners shall have authority to engage the services of a competent surveyor to assist them in their duties. The surveyor shall be paid for his services, out of the county treasury, the same compensation county surveyors are paid for similar services rendered to a citizen. If the judge of the probate court approves the report of the commissioners, he shall have all proceedings in the matter entered on his minutes, after which the district laid out or the line changed or defined shall be known and regarded accordingly.

(Laws 1840, Cobb's 1851 Digest, p. 187; Code 1863, §§ 456, 457, 458; Code 1868, §§ 518, 519, 520; Code 1873, §§ 484, 485, 486; Code 1882, §§ 484, 485, 486; Civil Code 1895, §§ 333, 334, 335; Civil Code 1910, §§ 376, 377, 378; Code 1933, §§ 23-204, 23-205, 23-206.)

Cross references. - Compensation of county surveyors, § 36-7-9 et seq.

JUDICIAL DECISIONS

This section is a general law. Drummond v. Lowry, 88 Ga. 716 , 16 S.E. 28 (1892); Hackney v. Leake, 91 Ga. 141 , 16 S.E. 966 (1893).

Commissioners appointed by the ordinaries to lay out new militia districts, or change the lines of those existing, have authority to engage the services of a competent surveyor to assist the commissioners in the commissioners' duties. The commissioners are not limited to the county surveyor. Graham v. Hall, 68 Ga. 354 (1882).

Power of ordinary (now judge of the probate court) and time of action. - Ordinary (now judge of the probate court) may appoint the commissioners, receive the commissioners' reports, and establish new districts either in term or vacation. Poole v. Sims, 67 Ga. 36 (1881).

Ordinary (now judge of the probate court) determines expediency. - Commissioners are mere agents to lay off the lines of a new district; the ordinary (now judge of the probate court) determines the expediency of creating it. The creation of a new district is not, therefore, illegal because deemed inexpedient by the commissioners. Conley v. Poole, 67 Ga. 254 (1881).

Finality of decision. - Judge of a superior court has no jurisdiction to review by certiorari the action of an ordinary (now judge of the probate court) or board of commissioners for there is no decision of a judicial question between parties litigant. Hillsman v. Harris, 84 Ga. 432 , 11 S.E. 400 (1890); Hudson v. Sullivan, 93 Ga. 631 , 20 S.E. 77 (1894).

Decision to create district not subject to review. - Exercise of the discretion of the county authority in creating a militia district, in the absence of fraud or the willful abuse of discretion, could not be made the subject of review by the superior court or the Supreme Court. Johnson v. Chappell, 198 Ga. 162 , 30 S.E.2d 909 (1944).

New district must not leave old district undermanned. - An order, by the proper county authority, approving a report of the commissioners appointed to lay out and establish a new militia district, is void since, by the establishment of the new district, an existing district is left with less than the required number of persons liable to militia duty. Johnson v. Chappell, 198 Ga. 162 , 30 S.E.2d 909 (1944).

Proof of district lines and residence. - Change of district lines is a matter of record, but the location of a residence with reference thereto must be proved by parol evidence. Graham v. Hall, 68 Ga. 354 (1882).

Isolated tracts. - This section does not authorize the inclusion in a district of isolated tracts not contiguous thereto. Howell v. Kinney, 99 Ga. 544 , 27 S.E. 204 (1896).

Justice of the peace (now magistrate) whose fees will be diminished by change in the militia district is not entitled to notice of proceedings. Poole v. Sims, 67 Ga. 36 (1881).

Form of petition and report. - Petition for a change of boundary line should distinctly specify the location of the new line, and the commissioners' report should lay out and define the new line. Howell v. Kinney, 99 Ga. 544 , 27 S.E. 204 (1896).

OPINIONS OF THE ATTORNEY GENERAL

Judge may change district name. - Since the judge of the probate court has all of the powers specified in this section, which are quite extensive, then certainly the judge has the power as implied by law to merely change the name of a militia district without changing the district's boundaries. 1963-65 Op. Att'y Gen. p. 339.

Commissioners of a county have authority to consolidate militia districts of that county into one militia district; the responsibility for changing the boundaries of, or consolidation of militia districts is that of the ordinary (now judge of the probate court) only when jurisdiction over such matters has not been granted by legislative act to the county commissioners. 1968 Op. Att'y Gen. No. 68-177.

Change in city limits is not one of means specified in the laws of Georgia for changing the boundaries of militia districts. 1968 Op. Att'y Gen. No. 68-237.

The 1982 amendment to O.C.G.A. § 36-2-2 does not require that any militia district boundaries be changed; any changes are to be initiated by the board of county commissioners in counties where the board is vested with this power by local law. 1982 Op. Att'y Gen. No. 82-94.

36-2-4. Transmittal of proceedings changing districts to Governor; publication.

It is the duty of the judge of the probate court, when a new district is laid out, immediately to transmit to the Governor the proceedings in the matter, duly certified, from his minutes and to publish them for 30 days at the door of the courthouse and in the newspaper where he does his official advertising.

(Laws 1840, Cobb's 1851 Digest, p. 187; Code 1863, § 459; Code 1868, § 521; Code 1873, § 487; Code 1882, § 487; Civil Code 1895, § 336; Civil Code 1910, § 379; Code 1933, § 23-207.)

JUDICIAL DECISIONS

Numbers and names of militia districts are not required to be kept in executive department. Aultman v. Hodge, 150 Ga. 370 , 104 S.E. 1 (1920).

36-2-5 through 36-2-7.

Reserved. Repealed by Ga. L. 1983, p. 884, § 4-2, effective July 1, 1983.

Editor's notes. - These Code sections, relating to effect on justices of the peace, constables, and actions pending in justice's court in the old district and election of justices of the peace and constables in new districts upon addition, consolidation, and abolition of militia districts, were based on Orig. Code 1863, §§ 460 to 462; Code 1868, §§ 522 to 524; Code 1873, §§ 488 to 490; Code 1882, §§ 488 to 490; Code 1895, §§ 337 to 339; Ga. L. 1899, p. 24, § 1; Civil Code 1910, §§ 380 to 382; Code 1933, §§ 23-208 to 23-210; and Ga. L. 1981, Ex. Sess., p. 8.

CHAPTER 3 COUNTY BOUNDARIES

Article 1

Change of Boundaries.

Article 2

Settlement of Boundary Disputes.

Cross references. - County boundaries generally, Vol. 42, Index of Local and Special Laws.

JUDICIAL DECISIONS

Presumption of compliance with statute. - An order of the Governor appointing a surveyor to make a survey and plat of a disputed county line will be presumed, until the contrary appears, to have been made in full compliance with statutes providing for settlement of disputed county line. Fine v. Dade County, 198 Ga. 655 , 32 S.E.2d 246 (1944).

When lands sought to be taxed by one county become part of another county, this status remains until there is another survey of line, after which the lands became a part of the former county. Kennedy v. Howard, 183 Ga. 410 , 188 S.E. 673 (1936).

Cited in Calhoun County v. Early County, 205 Ga. 169 , 52 S.E.2d 854 (1949).

ARTICLE 1 CHANGE OF BOUNDARIES

Cross references. - Limitation of number of counties to 159, Ga. Const. 1983, Art. IX, Sec. I, Para. II(a).

Changing of county lines by operation of general law only and consolidation, merger, or division of counties generally, Ga. Const. 1983, Art. IX, Sec. I, Para. II(b) and (c).

Change in boundaries of election districts within counties, § 21-2-261 et seq.

County boundaries generally, Vol. 42, Index of Local and Special Laws.

36-3-1. Filing and contents of petition for change of boundary line; publication of notice.

Whenever one or more citizens of any county desire to have the boundary line of the county changed, they shall file in the offices of the judges of the probate courts of the counties to be affected a petition in writing, setting forth the exact character of the change desired to be made, specifying particularly the situation, direction, and existing marks and monuments, if any, of the original line, and describing particularly the direction, location, and length of the proposed new line, and setting forth the reasons for the change. The person or persons applying for the change shall also give notice of the intention to apply for the change by publishing the same for at least 30 days next preceding the term of the superior court or courts to be held in the counties to be affected, which term shall be that next occurring after the filing of the petition with the judges of the probate courts:

  1. By publishing the notice in a public newspaper having general circulation in each of the counties to be affected by the change; and
  2. By posting the notice at the door of the courthouse in each of the counties and at three public places in every militia district adjacent to the line to be changed.

    (Ga. L. 1880-81, p. 52, § 1; Code 1882, § 508n; Civil Code 1895, § 382; Civil Code 1910, § 468; Code 1933, § 23-301.)

Law reviews. - For article questioning the constitutionality of this section and the constitutional provision under which it was enacted, see 10 Ga. L. Rev. 169 (1975).

JUDICIAL DECISIONS

Constitutionality. - This and the following sections of this chapter constitute a general law and are not unconstitutional. Aultman v. Hodge, 147 Ga. 626 , 95 S.E. 297 (1918).

Quantity of land transferred limited by discretion of officials. - When provisions of law have been fully complied with, the quantity of land that may be transferred from one county to another by a change of county line is limited only by the restrictions contained in law; that is, by discretion of those officials named, and by the constitutional provision against removal of county site, or dissolution of a county except in the manner prescribed in Ga. Const. 1877, Art. XI, Sec. 1, Para. IV (see now Ga. Const. 1983, Art. IX, Sec. I, Para. II). Aultman v. Hodge, 147 Ga. 626 , 95 S.E. 297 (1918).

Injunction in discretion of judge. - On a petition to enjoin commissioners from passing on recommendation of grand jury sanctioning change of county line, the judge of the superior court did not abuse judicial discretion in refusing an interlocutory injunction on the facts of the case. Aultman v. Hodge, 147 Ga. 626 , 95 S.E. 297 (1918).

Notice not required to be posted throughout length of county line. - Provision in this section as to the posting of notice in militia districts does not require the posting of notice in every district throughout the length of the county line unless the line is to be changed throughout the line's entire length. Aultman v. Hodge, 147 Ga. 626 , 95 S.E. 297 (1918).

RESEARCH REFERENCES

Am. Jur. 2d. - 56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, §§ 42, 51, 52, 56, 59, 60.

ALR. - What constitutes newspaper of "general circulation" within meaning of state statutes requiring publication of official notices and the like in such newspaper, 24 A.L.R.4th 822.

36-3-2. Proceedings before grand juries; action by county governing authorities upon approval of change by grand juries; publication of notice of approval by judges of probate courts.

It shall be the duty of the judges of the probate courts of the counties whose dividing line is sought to be changed to lay before the grand juries of their respective counties, on the first day of the next term of the superior courts after the publication of the notice and the filing of the petition provided for in Code Section 36-3-1, the original petition, together with all maps, plats, and other papers that may have been filed therewith. If such grand juries, by a two-thirds' vote of their respective bodies, approve the change applied for, they shall so declare in their general presentments. This action of the grand juries shall be certified at once by the clerks of the superior courts to the county governing authority in the counties to be affected, who shall, within 30 days from the date of the certification, approve or disapprove the application and certify their action to the judges of the probate courts of their respective counties. When the judges of the probate courts have satisfactory evidence of the concurrent approval of the grand juries and of the county governing authority in the counties to be affected, they shall cause an official notice of concurrent approval and a description of the line approved to be published for at least 30 days in a public newspaper having general circulation in their respective counties.

(Ga. L. 1880-81, p. 52, § 2; Code 1882, § 508o; Civil Code 1895, § 383; Civil Code 1910, § 469; Code 1933, § 23-302.)

Cross references. - Grand juries, T. 15, C. 12, A. 4.

RESEARCH REFERENCES

C.J.S. - 20 C.J.S., Counties, § 26 et seq.

36-3-3. When new boundary lines deemed established.

When all the proceedings have been had in the manner prescribed in Code Sections 36-3-1 and 36-3-2 and when the same have been fairly recorded by the judges of the probate courts on the minutes of their respective courts, the new line or lines shall be held to have been established in lieu of the original line or lines.

(Ga. L. 1880-81, p. 52, § 3; Code 1882, § 508r; Civil Code 1895, § 384; Civil Code 1910, § 470; Code 1933, § 23-303.)

Cross references. - Rerecording of deeds, mortgages, or other papers to land affected by change in county boundaries, § 44-2-13 .

JUDICIAL DECISIONS

Sovereign immunity not waived. - In an action arising out of an arrest, despite the way the arrestee was treated, the trial court properly dismissed a complaint against a county, and granted summary judgment on the same complaint against a city, on sovereign immunity grounds and because the arrestee failed to show that the immunity had been waived. Scott v. City of Valdosta, 280 Ga. App. 481 , 634 S.E.2d 472 (2006).

36-3-4. Payment of costs of proceedings.

The entire costs of advertising and recording the petition, descriptions, and all other papers and proceedings relating to the proposed change in the boundary line of a county shall be paid by the person or persons applying therefor.

(Ga. L. 1880-81, p. 52, § 4; Code 1882, § 508s; Civil Code 1895, § 385; Civil Code 1910, § 471; Code 1933, § 23-304; Ga. L. 1982, p. 3, § 36.)

36-3-5. Filing of survey, plat, and resolution relating to change of boundary with Secretary of State; disposition thereof; recordation of certified copy by clerks of superior courts.

When all proceedings have transpired pursuant to this article, three copies of the survey and plat evidencing a change in county lines and a copy of a resolution from the governing authority of each county evidencing approval of the change shall be filed jointly by the judge of the probate court of each county with the Secretary of State. Upon receipt of the copies of the survey and plat and the resolutions provided above, the Secretary of State shall certify the survey and plat and send a certified copy thereof to the clerk of the superior court of each county affected by the change in county lines. The clerk of the superior court shall record the survey and plat in the same book in which other plats of the county are recorded. The Secretary of State shall retain one copy of the survey and plat, such copy of the survey and plat to be filed in his office.

(Code 1933, § 23-305, enacted by Ga. L. 1975, p. 394, § 1.)

Cross references. - Rerecording of deeds, mortgages, or other papers to land affected by change in county boundaries, § 44-2-13 .

ARTICLE 2 SETTLEMENT OF BOUNDARY DISPUTES

Law reviews. - For annual survey on local government law, see 66 Mercer L. Rev. 135 (2014).

36-3-20. Presentment of boundary dispute by grand jury; certification to Governor; appointment of surveyor to define line; return of survey and plat to Secretary of State.

When the boundary line between two or more counties is in dispute and the grand jury of either county presents that the boundary line needs to be marked out and defined, it shall be the duty of the clerk of the superior court in the county where the presentments were made to certify the presentments to the Governor. The Governor shall appoint some suitable and competent land surveyor, who shall not reside in either county, to survey, mark out, and define the boundary line in dispute and to return the survey with plat to the Secretary of State's office to be recorded in a book to be kept for that purpose.

(Ga. L. 1887, p. 106, § 1; Civil Code 1895, § 386; Civil Code 1910, § 472; Code 1933, § 23-401; Ga. L. 1977, p. 248, § 1.)

Law reviews. - For annual survey on local government law, see 66 Mercer L. Rev. 135 (2014).

JUDICIAL DECISIONS

This section and the following section do not contemplate actions between counties, but the statutes devise a process by which the line as originally fixed by the legislature in the formation of the counties shall be ascertained and made certain. Early County v. Baker County, 137 Ga. 126 , 72 S.E. 905 (1911).

Availability of mandamus. - Mandamus will issue to compel ordinary (now judge of the probate court) to comply with the Act of 1879. Dickson v. Hill, 75 Ga. 369 (1885).

Mandamus cannot dictate where boundary line to be located. - Trial court erred by granting a county mandamus relief in a county boundary line dispute action pursuant to O.C.G.A. § 36-3-20 et seq., because while mandamus was authorized to compel the Georgia Secretary of State to do certain tasks, it was not authorized to dictate where the boundary line was to be located. Bibb County v. Monroe County, 294 Ga. 730 , 755 S.E.2d 760 (2014).

Line located contrary to prior judgment does not nullify judgment. - When the public authorities in locating line under this and the following sections located the line so that the line included land between lines contended for by parties to the litigation in which a judgment had been rendered, this did not nullify the prior judgment fixing the boundary line between the parties. Caverly v. Stovall, 143 Ga. 705 , 85 S.E. 844 (1915).

Cited in Fine v. Dade County, 198 Ga. 655 , 32 S.E.2d 246 (1944).

RESEARCH REFERENCES

Am. Jur. 2d. - 12 Am. Jur. 2d, Boundaries, § 46 et seq.

C.J.S. - 20 C.J.S., Counties, § 26 et seq.

ALR. - Right of political division to challenge acts or proceedings by which its boundaries or limits are affected, 86 A.L.R. 1367 .

36-3-21. Service of notice of survey upon county authorities.

Before the land surveyor proceeds to make the survey, he shall give the authorities having charge of the revenues of the counties at least ten days' notice of the time and place intended to commence the survey. The notice shall be given by mail or in person.

(Ga. L. 1887, p. 106, § 5; Civil Code 1895, § 390; Civil Code 1910, § 479; Code 1933, § 23-402; Ga. L. 1977, p. 248, § 2.)

JUDICIAL DECISIONS

Cited in Fine v. Dade County, 198 Ga. 655 , 32 S.E.2d 246 (1944).

36-3-21.1. Counties' agreement to boundary lines; filing of resolutions.

  1. At any time after certification of the grand jury presentment to the Governor and prior to a final determination by the Secretary of State under Code Section 36-3-24, the governing authorities of the affected counties may by mutual agreement determine where the boundary line shall be located. Any such agreement shall be evidenced by the adoption of an appropriate concurrent unanimous resolution by the governing authority of each affected county; and each such resolution shall incorporate or incorporate by reference an agreed upon plat, description, or other means of definitely ascertaining the boundary line.
  2. The resolutions of the affected counties shall be filed with the Secretary of State and the Department of Community Affairs, together with the agreed upon plat, description, or other means of definitely ascertaining the county line. If the Secretary of State finds that:
    1. Such resolutions meet the requirements of this Code section;
    2. The agreed upon plat, description, or other means adequately defines the boundary line;
    3. The surveyor, if appointed, has been adequately compensated for services performed to date or adequate arrangements have been made for the payment of such compensation; and
    4. The agreement is otherwise proper to terminate the boundary dispute, then the Secretary of State may enter a written determination that the disputed boundary line has been determined by agreement as authorized by this Code section. Such written determination, the concurrent resolutions of the affected counties, and the plat, description or other means of definitely ascertaining the boundary line shall be recorded in the same manner and with the same effect provided for in Code Section 36-3-25 . (Code 1981, § 36-3-21.1 , enacted by Ga. L. 2002, p. 1292, § 1.)

36-3-22. Copy of survey and plat furnished to county authorities.

The land surveyor appointed by the Governor to survey, mark out, and define the boundary line in dispute shall furnish the judges of the probate courts or chairmen of the boards of county commissioners of the respective counties with a copy of the survey and plat made and returned by him to the Secretary of State, at the same time the survey and plat are made and returned to the Secretary of State.

(Ga. L. 1899, p. 24, § 1; Civil Code 1910, § 473; Code 1933, § 23-403; Ga. L. 1977, p. 248, § 3.)

JUDICIAL DECISIONS

Constitutionality. - Former Civil Code 1910, §§ 473-475 (see now O.C.G.A. §§ 36-3-22 - 36-3-24 ) were not violative of Ga. Const. 1877, Art. I, Sec. I, Para. XXIII (see now Ga. Const. 1983, Art. I, Sec. II, Para. III) as an attempt to confer judicial power upon the Secretary of State. Early County v. Baker County, 137 Ga. 126 , 72 S.E. 905 (1911), aff'd, 10 Ga. App. 305 , 73 S.E. 352 (1912).

Cited in Fine v. Dade County, 198 Ga. 655 , 32 S.E.2d 246 (1944).

36-3-23. Filing of survey and plat with Secretary of State; time for protest or exceptions thereto.

The survey with plat, made and returned to the Secretary of State, shall be filed in his office, and entry of filing shall be made thereon; but the survey and plat shall not be recorded within the space of 30 days from the date of its reception in such office, for the purpose of allowing the authorities of either county dissatisfied therewith to file a protest or exceptions thereto within that time.

(Ga. L. 1899, p. 24, § 2; Civil Code 1910, § 474; Code 1933, § 23-404.)

JUDICIAL DECISIONS

Constitutionality. - Former Civil Code 1910, §§ 473-475 (see now O.C.G.A. §§ 36-3-22 - 36-3-24 ) were not violative of Ga. Const. 1877, Art. I, Sec. I, Para. XXIII (see now Ga. Const. 1983, Art. I, Sec. II, Para. III) as an attempt to confer judicial power upon the Secretary of State. Early County v. Baker County, 137 Ga. 126 , 72 S.E. 905 (1911), , 10 Ga. App. 305 , 73 S.E. 352 (1912).

Mandamus cannot dictate where boundary line to be located. - Trial court erred by granting a county mandamus relief in a county boundary line dispute action pursuant to O.C.G.A. § 36-3-20 et seq., because while mandamus was authorized to compel the Georgia Secretary of State to do certain tasks, it was not authorized to dictate where the boundary line was to be located. Bibb County v. Monroe County, 294 Ga. 730 , 755 S.E.2d 760 (2014).

Cited in Fine v. Dade County, 198 Ga. 655 , 32 S.E.2d 246 (1944).

36-3-24. Notice and hearing of protest or exceptions by Secretary of State.

If a protest or exceptions to the survey and plat are filed in the Secretary of State's office within the 30 days, it shall be the duty of the Secretary of State to give, through the mail, ten days' written notice of the time when he will hear the protest or exceptions at his office to the county governing authorities of the respective counties. Upon the hearing, the Secretary of State shall determine from the law and evidence the true boundary line in dispute between the respective counties.

(Ga. L. 1899, p. 24, § 3; Civil Code 1910, § 475; Code 1933, § 23-405.)

JUDICIAL DECISIONS

Constitutionality. - Former Civil Code 1910, §§ 473-475 (see now O.C.G.A. §§ 36-3-22 - 36-3-24 ) were not violative of Ga. Const. 1877, Art. I, Sec. I, Para XXIII (see now Ga. Const. 1983, Art. I, Sec. II, Para. III) as an attempt to confer judicial power upon the Secretary of State. Early County v. Baker County, 137 Ga. 126 , 72 S.E. 905 (1911), , 10 Ga. App. 305 , 73 S.E. 352 (1912).

Secretary has discretion in conducting hearing. - On remand of a county boundary dispute under O.C.G.A. § 36-3-20 et seq., a trial court erred by proscribing the Secretary of State from holding a new hearing or considering additional evidence before determining the boundary between two counties; O.C.G.A. § 36-3-24 gave the Secretary broad discretion in making the Secretary's determination. Kemp v. Monroe County, 298 Ga. 67 , 779 S.E.2d 330 (2015).

Mandamus cannot dictate where boundary line to be located. - Trial court erred by granting a county mandamus relief in a county boundary line dispute action pursuant to O.C.G.A. § 36-3-20 et seq., because while mandamus was authorized to compel the Georgia Secretary of State to do certain tasks, it was not authorized to dictate where the boundary line was to be located. Bibb County v. Monroe County, 294 Ga. 730 , 755 S.E.2d 760 (2014).

Secretary's authority to subpoena. - Trial court did not err by entering a declaratory judgment ordering the land surveyor to comply with the subpoena issued as the Secretary of State had the authority to require the surveyor to appear as a witness at a final hearing on a county boundary-line dispute. Scarborough v. Kemp, 348 Ga. App. 79 , 819 S.E.2d 710 (2018), cert. denied, 2019 Ga. LEXIS 535 (Ga. 2019).

Cited in Fine v. Dade County, 198 Ga. 655 , 32 S.E.2d 246 (1944).

36-3-25. Recordation of survey and plat; conclusive effect; subsequent changes of boundary line.

Upon the making of a decision by the Secretary of State pursuant to Code Section 36-3-24 or in case no protest or exceptions are filed within the 30 days, the Secretary of State shall cause the survey and plat to be recorded in a book to be kept for that purpose, whereupon the same shall be final and conclusive as to the boundary line in dispute. When the boundary line in dispute has been established as final and conclusive as provided in this Code section, the same boundary line shall not again be subject to the procedures set forth in this article, and such boundary line may subsequently be changed only in accordance with Article 1 of this chapter, provided that nothing contained in this sentence shall affect any boundary line dispute in question on July 1, 1980, until the dispute is settled.

(Ga. L. 1899, p. 24, § 4; Civil Code 1910, § 476; Code 1933, § 23-406; Ga. L. 1980, p. 1178, § 1; Ga. L. 1982, p. 3, § 36.)

Editor's notes. - Ga. L. 1980, p. 1178, § 2, not codified by the General Assembly, provided that nothing in that Act, which added the last two sentences to this Code section, shall affect any boundary line disputes already in question, until such disputes are settled.

JUDICIAL DECISIONS

Mandamus cannot dictate where boundary line to be located. - Trial court erred by granting a county mandamus relief in a county boundary line dispute action pursuant to O.C.G.A. § 36-3-20 et seq., because while mandamus was authorized to compel the Georgia Secretary of State to do certain tasks, it was not authorized to dictate where the boundary line was to be located. Bibb County v. Monroe County, 294 Ga. 730 , 755 S.E.2d 760 (2014).

Secretary has discretion in conducting hearing. - On remand of a county boundary dispute under O.C.G.A. § 36-3-20 et seq., a trial court erred by proscribing the Secretary of State from holding a new hearing or considering additional evidence before determining the boundary between two counties; O.C.G.A. § 36-3-24 gave the Secretary broad discretion in making the Secretary's determination. Kemp v. Monroe County, 298 Ga. 67 , 779 S.E.2d 330 (2015).

Cited in Fine v. Dade County, 198 Ga. 655 , 32 S.E.2d 246 (1944).

36-3-26. Compensation of land surveyor; notification of county authorities of fee; advisory committee.

  1. The land surveyor shall receive a fee to be fixed by the Secretary of State or his designated deputy or assistant. Such fee shall be based upon reasonable compensation for the work to be performed and the rates normally charged by land surveyors in the same geographical area as the disputed line. The fee shall be negotiated prior to the commencement of the survey. Prior to the commencement of the survey, it shall be the duty of the Secretary of State to notify the governing authorities of the counties affected of the fee which has been negotiated.
  2. For the purpose of assisting the Secretary of State in connection with his responsibilities and duties to fix and negotiate an appropriate fee for the services of the land surveyor in surveying, marking out, and defining the boundary line in dispute, the Secretary of State may appoint an advisory committee to be composed of three registered land surveyors. One of the members of the advisory committee shall be a county surveyor who shall be selected by the Secretary of State from a list of at least three county surveyors submitted to the Secretary of State by the Association County Commissioners of Georgia. The members of the advisory committee shall serve at the pleasure of the Secretary of State or for such terms as the Secretary of State shall provide. The members of the advisory committee shall receive no compensation for their services as such.
  3. The advisory committee shall review the proposals of the land surveyor appointed by the Governor and shall counsel and advise the Secretary of State as to the committee's recommendation concerning an appropriate fee for such services. The recommendations of the advisory committee to the Secretary of State in relation to such fee shall not be binding upon the Secretary of State but shall be used by the Secretary of State in assisting him in determining and fixing an appropriate fee.

    (Ga. L. 1887, p. 106, § 3; Civil Code 1895, § 388; Civil Code 1910, § 477; Code 1933, § 23-407; Ga. L. 1956, p. 192, § 1; Ga. L. 1958, p. 633, § 1; Ga. L. 1977, p. 248, § 4; Ga. L. 1980, p. 1280, § 1.)

RESEARCH REFERENCES

C.J.S. - 20 C.J.S., Counties, § 26 et seq.

36-3-27. Payment by county authorities of compensation; tax levy.

It shall be the duty of the governing authorities of each of the counties affected by such survey to pay that proportion of the fee established under Code Section 36-3-26 that such county bears to the total number of counties directly affected by the survey. The payment of such fees is declared to be a public purpose. The governing authority of each county affected is authorized and directed to pay such fees and to levy such taxes as may be necessary for the payment of such fees.

(Ga. L. 1887, p. 106, § 4; Civil Code 1895, § 389; Civil Code 1910, § 478; Code 1933, § 23-408; Ga. L. 1977, p. 248, § 5.)

JUDICIAL DECISIONS

When county not liable for surveyor's expenses. - When suit was brought by a surveyor, who was appointed by the Governor to run a disputed line between two counties under former Civil Code 1910, § 478 and former Civil Code 1910, § 473 et seq. (see now O.C.G.A. §§ 36-3-27 and 36-3-22 et seq.), to recover from one of such counties one-half of the charge, there was no error in dismissing the suit on general demurrer (now motion to dismiss) because there was no valid law authorizing a county to levy taxes to meet such a claim, and a county is not liable for suit thereon. Robert v. Wilkinson County, 137 Ga. 601 , 73 S.E. 838 (1912); Smith v. Baker County, 142 Ga. 168 , 82 S.E. 557 (1914).

OPINIONS OF THE ATTORNEY GENERAL

O.C.G.A. § 36-3-27 requires that each governing authority pay each pro rata share of the survey fee and forbids contrary agreements. 1981 Op. Att'y Gen. No. 81-41.

CHAPTER 4 CHANGE OR REMOVAL OF COUNTY SITE

Sec.

Cross references. - Limitation of number of counties, Ga. Const. 1983, Art. IX, Sec. I, Para. II.

36-4-1. Petition for removal or change of county site; order of election; notice of election; qualifications of voters; frequency of elections.

Whenever two-fifths of the electors of any county who are qualified to vote for members of the General Assembly, as shown by the registration list last made out, shall petition the judge of the probate court for the removal or change of the county site of the county, the judge of the probate court shall at once grant an order directing an election to be held at the various election precincts in the county not less than 40 nor more than 60 days thereafter. The petition shall state where the new county site is to be located. Notice of the election shall be published weekly for four weeks previous to the day of the election in the newspaper in which the sheriff publishes his legal notices. All persons qualified to vote for members of the General Assembly shall be qualified to vote at the election. Elections under this Code section shall not occur more often than once in five years.

(Ga. L. 1878-79, p. 44, § 1; Code 1882, § 508x; Ga. L. 1887, p. 39, § 1; Civil Code 1895, § 391; Civil Code 1910, § 486; Ga. L. 1911, p. 54, § 1; Code 1933, § 23-501.)

JUDICIAL DECISIONS

Constitutionality. - Former Code 1895, § 391 et seq. (see now O.C.G.A. § 36-4-1 et seq.) did not fall because of conflict with the Constitution as to the number of votes required to remove or change the county site. The sole purpose of these sections was to provide machinery to carry out the constitutional provision relative to a change of county sites by providing an election by striking out the requirements as to the number of votes, which was already fixed by the Constitution; these sections remain complete in themselves and capable of being carried out in accordance with the legislative intent. Lee v. Tucker, 130 Ga. 43 , 60 S.E. 164 (1908) (decided prior to revision of section by Ga. L. 1911, p. 54, § 1).

General Assembly not bound by findings of Secretary of State. - General Assembly, in determining the facts and legislating upon the removal of county sites under former Civil Code 1910, § 486 et seq. (see now O.C.G.A. § 36-4-1 et seq.), is not bound by the findings of the Secretary of State as to the result of the election. Bachlott v. Buie, 158 Ga. 705 , 124 S.E. 339 (1924); Cowart v. Manry, 166 Ga. 612 , 144 S.E. 21 (1928).

Failure of General Assembly to legislate. - When the removal election was held on May 5, 1927, and the General Assembly of 1927 did not pass any legislation thereon, the General Assembly of 1929 had the constitutional power and authority to pass an Act removing the county site. Cowart v. Manry, 166 Ga. 612 , 144 S.E. 21 (1928).

Act for removal of county seat does not impair obligation of contract. - Act for the removal of the county seat does not impair the obligation of contract. In such matters one legislature had not the right to bind all subsequent legislatures. Hamrick v. Rouse, 17 Ga. 56 (1855).

Duty of ordinary (now judge of the probate court). - Under the provisions of this section, the power to call an election to determine whether in a given county there shall be a change of the location of the county site is vested in the ordinary (now judge of the probate court) and even if the General Assembly had power in a given case to so change this general law as to vest this power in another official, the Act approved December 8, 1886, creating a Board of Commissioners of Roads and Revenues for the County of DeKalb, neither vested nor sought to vest such power in the board of commissioners created by it. Wells v. Ragsdale, 102 Ga. 53 , 29 S.E. 165 (1897).

If, in order to find that the petition contains the requisite two-fifths, it is necessary for the ordinary (now judge of the probate court) to act upon extraneous evidence, explaining that names on the petition and the digest list, though different, in fact refer to the same persons, and that certain names on the digest list are of deceased persons and persons removed from the county, then there is no absolute duty to call the election. After refusal by the ordinary (now judge of the probate court) mandamus will not lie to compel the ordinary (now judge of the probate court) to act. Barrett v. Ashmore, 137 Ga. 545 , 73 S.E. 825 (1912).

Order shall not specify particular place of removal. - Petition for the election should be for an election for the removal of the county site, and the order calling the election should show that it is one for the removal of the actual county site, without specifying a particular place to which it shall be removed, so as to leave to the qualified voters free choice between the place where the county site is actually located and any other place in the county. Cheney v. Ragan, 151 Ga. 735 , 108 S.E. 30 (1921).

Provision as to five-year period not binding on subsequent legislature. - Provision relating to the removal of a county seat not oftener than once every five years is not binding on a subsequent legislature and a subsequent legislature would be authorized under the Constitution to pass an Act removing a county site, although the election upon which the Act was based was held within less than five years from a previous election held for that purpose. Orr v. James, 159 Ga. 237 , 125 S.E. 468 (1924).

Calling election prima-facie proof of proper petition. - Calling of the election by the ordinary (now judge of the probate court) determined at least prima facie that the petitioners were of the class and were of a sufficient number as required by the statute for the purpose of calling an election at which the question of the removal of the county site to a named town within the county should be voted upon. Vornberg v. Dunn, 143 Ga. 111 , 84 S.E. 370 (1915).

Direction of the petition to "ordinary" (now judge of the probate court) instead of "court of ordinary" will not render the petition void. Vornberg v. Dunn, 143 Ga. 111 , 84 S.E. 370 (1915).

Cited in Lee v. Tucker, 130 Ga. 43 , 60 S.E. 164 (1908).

RESEARCH REFERENCES

C.J.S. - 20 C.J.S., Counties, § 90 et seq.

36-4-2. Conduct of election generally; returns.

The election shall be held and conducted and returns shall be made thereof as is provided by Chapter 2 of Title 21, the "Georgia Election Code."

(Ga. L. 1878-79, p. 44, § 2; Code 1882, § 508y; Civil Code 1895, § 392; Civil Code 1910, § 487; Code 1933, § 23-502.)

JUDICIAL DECISIONS

Where polls opened. - To the validity of an election it is not indispensable that the polls should be opened at each of the polling places in the county. Wells v. Ragsdale, 102 Ga. 53 , 29 S.E. 165 (1897).

RESEARCH REFERENCES

Am. Jur. 2d. - 56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, § 31.

C.J.S. - 20 C.J.S., Counties, § 97 et seq.

36-4-3. Form and marking of ballots; number of votes required to authorize removal.

At the election, the form of the ballot and the procedure for marking the ballot shall be as provided in Chapter 2 of Title 21, the "Georgia Election Code." The ballot for such election shall have written or printed thereon the following: "[ ] YES Shall the county site of __________ County [ ] NO be moved to __________?"

In any such referendum election, all persons desiring to vote in favor of moving the county site shall vote "Yes," and those persons desiring to vote against moving the county site shall vote "No." If two-thirds of the votes cast at the election are in favor of removal, the General Assembly next convening after the election may provide for the removal of the county site by appropriate legislation.

(Ga. L. 1878-79, p. 44, § 3; Code 1882, § 508z; Civil Code 1895, § 393; Civil Code 1910, § 488; Code 1933, § 23-503; Ga. L. 1987, p. 3, § 36.)

History of section. - The language of this Code section is derived in part from the decision in Wells v. Ragsdale, 102 Ga. 53 , 29 S.E. 165 (1897).

JUDICIAL DECISIONS

Voter must designate place preferred. - It is necessary not only that the voter voting for the removal of the county site should state upon the ballot "for removal," but also that the voter should designate thereon the particular place to which the voter desires the county seat removed. Wells v. Ragsdale, 102 Ga. 53 , 29 S.E. 165 (1897); Cheney v. Ragan, 151 Ga. 735 , 108 S.E. 30 (1921).

RESEARCH REFERENCES

C.J.S. - 20 C.J.S., Counties, § 97 et seq.

36-4-4. Certificate of Secretary of State as evidence of election and number of votes.

The certificate of the Secretary of State showing that the election was held and that two-thirds of the qualified voters voting at the election voted in favor of removal shall be sufficient evidence of the holding of the election and of the number of votes cast.

(Ga. L. 1878-79, p. 44, § 4; Code 1882, § 508aa; Civil Code 1895, § 394; Civil Code 1910, § 489; Ga. L. 1911, p. 54, § 1; Code 1933, § 23-504.)

History of section. - The language of this Code section is derived in part from the decision in Wells v. Ragsdale, 102 Ga. 53 , 29 S.E. 165 (1897).

JUDICIAL DECISIONS

Legislature not confined to secretary's certificate. - Legislature is not precluded from ascertaining by other appropriate means the facts concerning the election and the number of votes cast. Cutcher v. Crawford, 105 Ga. 180 , 31 S.E. 139 (1898); Lee v. Tucker, 130 Ga. 43 , 60 S.E. 164 (1908); Bachlott v. Buie, 158 Ga. 705 , 124 S.E. 339 (1924).

Act of General Assembly which removes a county site is not unconstitutional and void because it was passed contrary to finding of Secretary of State. Cutcher v. Crawford, 105 Ga. 180 , 31 S.E. 139 (1898); Lee v. Tucker, 130 Ga. 43 , 60 S.E. 164 (1908); Vornberg v. Dunn, 143 Ga. 111 , 84 S.E. 370 (1915); Bachlott v. Buie, 158 Ga. 705 , 124 S.E. 337 (1924).

Injunction when legislature has not considered result. - An injunction will issue restraining the ordinary (now judge of the probate court) from erecting a new courthouse at the site of the old one after an election has been had to change the site, if the legislature had not considered the result. Wells v. Ragsdale, 102 Ga. 53 , 29 S.E. 165 (1897).

Copy of election returns not admissible in evidence. - Certified copy from the office of the Secretary of State of the consolidated return of an election held in a given county upon the question of removing the county site thereof is not admissible in evidence for the purpose of showing that the General Assembly, in acting upon a bill providing for such removal, did not have before the General Assembly legal evidence showing that such an election had been held and that two-thirds of the qualified voters thereat voted in favor of a removal of the county site to a particular place. Cutcher v. Crawford, 105 Ga. 180 , 31 S.E. 139 (1898).

Admissions in pleadings binding. - An admission made in the pleadings that certain of the voters voting at such election voted in favor of the removal of the county site to a particular place, so long as the admission stands as part of the pleading, is binding upon the party making the admission. Wells v. Ragsdale, 102 Ga. 53 , 29 S.E. 165 (1897).

RESEARCH REFERENCES

Am. Jur. 2d. - 26 Am. Jur. 2d, Elections, § 293.

36-4-5. Where courts to be held after removal; validity of proceedings.

After a county site is removed as provided by law, all the courts which are required by law to be held at the county site of the county, by proper orders made by the judges of such courts at chambers or in regular session and entered on the minutes of the courts, shall continue to be held in the old buildings at the former county site until the new buildings at the county site are ready for occupancy. All the proceedings of any court so held shall be legal.

(Ga. L. 1905, p. 104, § 1; Civil Code 1910, § 502; Code 1933, § 23-517.)

JUDICIAL DECISIONS

Cited in Jackson v. State, 31 Ga. App. 188 , 120 S.E. 129 (1923).

36-4-6. Where offices to be kept after removal.

The authorities having charge of county affairs in any county for which the county site has been removed shall provide by an order entered on their minutes that the county officers of the county shall have and keep their offices in such buildings at either the old or new county site as, in the judgment of the county authorities, may be best, until the new buildings are ready for occupancy.

(Ga. L. 1905, p. 104, § 2; Civil Code 1910, § 503; Code 1933, § 23-518.)

OPINIONS OF THE ATTORNEY GENERAL

It is not proper for county tax commissioner to store tax records in the commissioner's home. 1975 Op. Att'y Gen. No. U75-75.

RESEARCH REFERENCES

C.J.S. - 20 C.J.S., Counties, § 76.

CHAPTER 5 ORGANIZATION OF COUNTY GOVERNMENT

Article 1

[Repealed].

Article 2

County Governing Authorities.

Law reviews. - For annual survey article on local government law, see 50 Mercer L. Rev. 263 (1998).

ARTICLE 1

Editor's notes. - Ga. L. 1987, p. 1482, § 5, effective April 17, 1987, repealed the Code sections formerly codified at this article. The former article, which was entitled "Government by Judge of the Probate Court," consisted of Code Sections 36-5-1 through 36-5-8 and was based on Orig. Code 1863, §§ 286, 287, 4028 through 4031, 4034; Code 1868, §§ 346, 347, 4058 through 4061, 4064; Code 1873, §§ 337, 338, 4123 through 4126, 4129; Ga. L. 1877, p. 109, § 1; Code 1882, §§ 337, 338, 741a, 4123 through 4126, 4129; Civil Code 1895, §§ 4238 through 4240, 4263 through 4266, 4268; Civil Code 1910, §§ 4796 through 4798, 4821 through 4824, 4826; Code 1933, §§ 23-701 through 23-708; Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1981, Ex. Sess., p. 8; and Ga. L. 1982, p. 3, § 36.

36-5-1.

Reserved.

Code Commission notes. - Pursuant to Code Section 28-9-5, in 2006, the designation of this Code section was reserved.

ARTICLE 2 COUNTY GOVERNING AUTHORITIES

JUDICIAL DECISIONS

Cited in McCracken v. Gainesville Tribune, Inc., 146 Ga. App. 274 , 246 S.E.2d 360 (1978).

36-5-20. Official names of county governing authorities.

The words "Roads and Revenues" are stricken from the official names of all of the governing authorities of the counties of this state, so that the official names of the governing authorities of the counties will be changed from "Board of Commissioners of Roads and Revenues of ____________ County" and from the "Commissioner of Roads and Revenue of ______________ County" to "Board of Commissioners of ______________ County" and "Commissioner of ______________ County," respectively.

(Ga. L. 1968, p. 1141, § 1; Ga. L. 1982, p. 3, § 36.)

Cross references. - "County governing authority" defined, § 1-3-3(7) .

36-5-21. Vacancy in office of county commissioner or other governing authority.

  1. When a vacancy occurs in the office of a county governing authority in any county in which the local Act creating that governing authority for the county makes no provision for succession to fill the vacancy and the unexpired term of office exceeds six months in duration, it shall be the duty of the judge of the probate court of the county to call a special election to elect a successor and fill the vacancy in not less than 30 nor more than 60 days. The election shall be held as provided by Chapter 2 of Title 21, the "Georgia Election Code," and the cost of the election shall be defrayed by the proper county authorities. If the unexpired term to be filled is less than six months in duration and the local Act creating the governing authority makes no provision to fill the vacancy, the judge of the superior court of the county shall have the power to appoint a successor to fill the unexpired term.
  2. Unless otherwise provided by local law, when the office of any county commissioner is vacated for any reason and a special election is required to be called pursuant to subsection (a) of this Code section, the remaining members of the board of commissioners shall constitute the governing authority of the county during the interim period between the creation of the vacancy and the election and qualification of a successor to fill the vacancy pursuant to subsection (a) of this Code section, except that if as a result of that vacancy or any combination of such vacancies there is no longer any commissioner remaining in office to constitute the county governing authority, the judge of the probate court of the county shall serve as the county governing authority until the election and qualification under subsection (a) of this Code section of all successors to the vacated positions on the county governing authority.
  3. A judge of the probate court serving as the county governing authority pursuant to subsection (b) of this Code section shall receive for such service, in addition to any other compensation that judge is authorized by law to receive, an amount equal to the amount the chairman of the board of commissioners or the sole commissioner, as applicable, would have been authorized to receive for that period of service.

    (Ga. L. 1898, p. 93, § 1; Civil Code 1910, § 627; Code 1933, § 23-801; Ga. L. 1947, p. 173, § 1; Ga. L. 1986, p. 328, § 1; Ga. L. 1987, p. 1482, § 6.)

Law reviews. - For annual survey of local government law, see 38 Mercer L. Rev. 289 (1986).

JUDICIAL DECISIONS

Duty arises instantly upon occurrence of vacancy. Newton v. Stembridge, 212 Ga. 828 , 96 S.E.2d 504 (1957).

Cited in Stembridge v. Newton, 213 Ga. 304 , 99 S.E.2d 133 (1957).

OPINIONS OF THE ATTORNEY GENERAL

Filling vacancy in public office. - Vacancy in the office of tax collector is filled by temporary appointment by the ordinary (now county governing authority) until a special election to fill the vacancy is held and such special election may be held on the same day as the general election. 1945-47 Op. Att'y Gen. p. 83.

Special Act controls. - If a county has a special Act which varies this section, the county must follow the procedure there set forth. 1974 Op. Att'y Gen. No. U74-22.

Special elections. - O.C.G.A. § 36-5-21 is by its very term not applicable if the local Act creating the governing authority for the county provides for the manner of succession to fill a vacancy. 1990 Op. Att'y Gen. No. U90-9.

When the local law creating the board of commissioners for Houston County, as amended, provides that, with regard to vacancies occurring more than one year prior to the expiration of the term of office, the vacancy "shall be filled by a special election called by the election superintendent of Houston County in the same manner as in the case to fill vacancies in other county offices . . .," the general law relating to the filling of a vacancy on the county commission is not applicable, and the special election to fill the vacancy in the office of county commissioner should be conducted pursuant to the general special election provisions of the Georgia Election Code, O.C.G.A. §§ 21-2-540 and 21-2-541 , as is the case with vacancies in other county offices when there is no specific provision which applies. 1990 Op. Att'y Gen. No. U90-9.

RESEARCH REFERENCES

Am. Jur. 2d. - 56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, § 164 et seq.

C.J.S. - 20 C.J.S., Counties, § 163 et seq.

36-5-22. County manager authorized.

  1. The governing authority of any county of this state or the General Assembly may create in and for those counties in which it deems necessary or advisable the office of county manager and may vest in such office powers, duties, and responsibilities of an administrative nature. The qualifications, method of selection, appointment, compensation, tenure, and such other related matters pertaining to the office of county manager shall be provided for by the governing authority of the county.
  2. Nothing in this Code section shall pertain to consolidated governments which include all the area within any county.
  3. This Code section shall not apply to any county having a population of more than 500,000 according to the United States decennial census of 1990 or any future such census.

    (Ga. L. 1974, p. 435, §§ 1, 2; Ga. L. 1987, p. 1482, § 7; Ga. L. 1992, p. 2341, § 1.)

JUDICIAL DECISIONS

Constitutionality. - Ga. L. 1974, pp. 435-6 which was codified as O.C.G.A. § 36-5-22 , does not conflict with Ga. Const. 1976, Art. IX, Sec. II, Para. I (see now Ga. Const. 1983, Art. IX, Sec. II, Para. I) and is constitutional. Gray v. Dixon, 249 Ga. 159 , 289 S.E.2d 237 (1982).

County governing authority powers. - Any attempt by the board of commissioners to confer "executive powers" on the office of county manager would be an "action affecting the . . . form . . . of the county governing authority" in violation of subsection (c)(2) of Ga. Const. 1983, Art. IX, Sec. II, Para. I. Gray v. Dixon, 249 Ga. 159 , 289 S.E.2d 237 (1982).

Ordinance creating the office of county manager which tracked the language of O.C.G.A. § 36-5-22 and vested in that office certain administrative functions, and did not attempt to confer the executive powers reserved for the chair, was consistent with the county's home rule authority and did not violate Ga. Const. 1983, Art. IX, Sec. II, Para. I. Krieger v. Walton County Bd. of Comm'rs, 271 Ga. 791 , 524 S.E.2d 461 (1999).

Defendant county manager did not have final authority over decisions that resulted in termination of an employee from the county; such authority rests with the board of commissioners under Georgia's home rule provisions in Ga. Const. 1983, Art. IX, Sec. II, Para. I. Lightsey v. Miles, (S.D. Ga. July 26, 2005).

36-5-22.1. Powers and duties; delegation.

  1. The governing authority of each county has original and exclusive jurisdiction over the following subject matters:
    1. The directing and controlling of all the property of the county, according to law, as the governing authority deems expedient;
    2. The levying of a general tax for general county purposes and a special tax for particular county purposes;
    3. The establishing, altering, or abolishing of all roads, bridges, and ferries in conformity to law;
    4. Reserved;
    5. The filling of all vacancies in county offices unless some other body or official is empowered by law to so fill such vacancy;
    6. The examining, settling, and allowing of all claims against the county;
    7. The examining and auditing of the accounts of all officers having the care, management, keeping, collection, or disbursement of money belonging to the county or appropriated for its use and benefit and the settling of the same;
    8. The making of such rules and regulations for the support of the poor of the county, for the county police and patrol, for the promotion of health, and for quarantine as are authorized by law or not inconsistent therewith; and
    9. The regulating of peddling and fixing of the cost of licenses therefor.
  2. Nothing in this Code section shall be construed to prohibit a local law from delegating to a chairman or chief executive officer of a county governing authority jurisdiction over any subject matter provided for in subsection (a) of this Code section. (Code 1981, § 36-5-22.1 , enacted by Ga. L. 1987, p. 1051, § 1, Ga. L. 1987, p. 1482, § 8.)

Code Commission notes. - Ga. L. 1987, p. 1051, § 1 and Ga. L. 1987, p. 1482, § 8 enacted similar Code sections designated as Code Section 36-5-22.1. The Code section is set forth above as enacted by the latter Act (Ga. L. 1987, p. 1482, § 8).

Cross references. - Application for and issuance of writ of mandamus against county board of commissioners to compel building, repair of county roads, § 9-6-21 .

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Code 1890, § 337, Ga. L. 1903, p. 41, former Civil Code 1910, and former O.C.G.A. §§ 36-5-1 and 36-5-2 are included in the annotations for this Code section.

Act of ordinary (now county governing authority) exercised in matters specified by statute are quasi-judicial functions; and therefore the ordinarys are not liable to suit, even for gross errors of judgment committed in making such contracts. Paulding County v. Scoggins, 97 Ga. 253 , 23 S.E. 845 (1895) (decided under former law).

Mandamus will not lie to compel ordinary (now county governing authority) to have bridge built, which was recommended by grand jury. Patterson v. Taylor, 98 Ga. 646 , 25 S.E. 771 (1896) (decided under former Code 1890, § 337).

Discretion of ordinary (now county governing authority) as to rebuilding bridges not subject to control unless abused. Dale v. Barnett, 105 Ga. 259 , 31 S.E. 167 (1898) (decided under former law).

Mandamus will not lie to collaterally attack order to alter public road. Crum v. Hargrove, 119 Ga. 471 , 46 S.E. 626 (1904) (decided under Ga. L. 1903, p. 41).

Transfer of powers. - O.C.G.A. § 36-5-22.1 did not prevent the county board from passing resolutions which effectively transferred much of the power of the county chairperson to the county board. Krieger v. Walton County Bd. of Comm'rs, 269 Ga. 678 , 506 S.E.2d 366 (1998).

Ordinary (now county governing authority) keeps power in face of charter provision. - Manner of removing obstructions by proceedings before ordinary (now county governing authority) is not divested by municipal charter provisions permitting mayor and council to exercise this power. Hendricks v. Carter, 21 Ga. App. 527 , 94 S.E. 807 (1918) (decided under former Civil Code 1910).

Ordinary (now county governing authority) cannot issue bonds to pay for work under contract. - Ordinary (now county governing authority) has power to make all contracts necessary to perform the duties cast upon the ordinary; but the ordinary cannot issue bonds to raise pay for the work done thereunder, this must be done by taxation. Dent v. Cook, 45 Ga. 323 (1872) (decided under former law).

Sheriff has no authority over commissions generated by use of county jail. - County sheriff was not entitled to keep commissions received from a company that provided telephone services to county jail inmates as revenue generated using county property or facilities - such as the jail - was itself county property and therefore subject to county authority under O.C.G.A. § 36-5-22.1 . Although a sheriff could collect certain fees, such as fees for attending court, O.C.G.A. § 15-16-21 provided that such fees had to be turned over to the county's treasurer or fiscal officer. Lawson v. Lincoln County, 292 Ga. App. 527 , 664 S.E.2d 900 (No. S08C1929, 2008), cert. denied, 2008 Ga. LEXIS 899 (Ga. 2008).

Authority to enact ordinance. - Miller County, Ga., Ordinance No. 10-01, § 3 does not purport to supplant O.C.G.A. § 16-10-6 because the effect of § 3 is to strengthen § 16-10-6 by a broader prohibition with additional specific requirements for any exception; the county had authority, as an incident of the county's home rule power, to enact Miller County, Ga., Ordinance No. 10-01, § 3 so long as the ordinance did not conflict with general law. Bd. of Comm'rs v. Callan, 290 Ga. 327 , 720 S.E.2d 608 (2012).

Power to lease. - Ordinary (now county governing authority) had power to lease directly to an individual certain realty for use in operating a filling station, as it was then being and had been used for 13 years. Such a lease, having been so executed was not void on the ground that the lease was not authorized by law, or that the interest thereby created extended beyond the term of the official then in office, or that it amounted to a commercial transaction in which the county was not authorized by law to engage. Black v. Forsyth County, 193 Ga. 571 , 19 S.E.2d 297 (1942) (decided under former law).

Employment of counsel. - County governing authority has the implicit power to employ counsel for county officers. Stephenson v. Board of Comm'rs, 261 Ga. 399 , 405 S.E.2d 488 (1991).

County governing authority's employment of counsel to represent a superior court clerk did not violate Ga. Const. 1983, Art. 9, Sec. 2, Paras. 1(c)(1) or (7), which preclude the authority from exercising any power in a manner affecting "any elective county office" or "any court or the personnel thereof." Stephenson v. Board of Comm'rs, 261 Ga. 399 , 405 S.E.2d 488 (1991).

Cited in Holder v. Hall, 512 U.S. 874, 114 S. Ct. 2581 , 129 L. Ed. 2 d 687 (1994); Bodker v. Taylor, (N.D. Ga. June 5, 2002); Hill v. Clayton County Bd. of Comm'rs, 283 Ga. App. 15 , 640 S.E.2d 638 (2006), overruled on other grounds, Mayor & Aldermen of Savannah v. Batson-Cook Co., 291 Ga. 114 , 728 S.E.2d 189 (Ga. 2012). Pelphrey v. Cobb County, 547 F.3d 1263 (11th Cir. 2008).

OPINIONS OF THE ATTORNEY GENERAL

County commissioners may grant to private corporation a permit to construct sewer across a street dedicated to the county. 1970 Op. Att'y Gen. No. U70-36.

County commissioners have the authority to make a refund to the taxpayer so as to correct the error made to the extent of the interest of the county herein; however, should the county commissioners decline to make a refund in this case, the commissioners could successfully defend any effort to force the commissioners to do so under former Code 1933, § 20-1007 (see now O.C.G.A. § 13-1-13 ). 1957 Op. Att'y Gen. p. 43.

RESEARCH REFERENCES

Am. Jur. 2d. - 20 Am. Jur. 2d, Courts, § 15.

C.J.S. - 20 C.J.S., Counties, §§ 22, 23.

40 C.J.S., Highways, § 339 et seq.

ALR. - Right of one detained pursuant to quarantine to habeas corpus, 2 A.L.R. 1542 .

Right and duty of highway contractor as to barricading or obstructing street, 7 A.L.R. 1203 ; 104 A.L.R. 955 .

36-5-23. Salary of county commissioner in counties having population of not less than 56,400 or more than 60,000.

Reserved. Repealed by Ga. L. 2002, p. 1038, § 1, effective July 1, 2002.

Editor's notes. - This Code section was based on Code 1981, § 36-5-23 , enacted by Ga. L. 1982, p. 533, §§ 1, 2; Ga. L. 1993, p. 91, § 36.

36-5-24. Definitions; compensation of members of county governing authorities.

  1. As used in this Code section, the term:
    1. "County governing authority" means a governing authority as defined in paragraph (7) of Code Section 1-3-3 and an elected county chief executive officer.
    2. "Expenses in the nature of compensation" means any expense allowance or any form of payment or reimbursement of expenses other than reimbursement for expenses actually and necessarily incurred by members of a county governing authority.
  2. Unless otherwise provided by local law, the governing authority of each county is authorized to fix the salary, compensation, expenses, and expenses in the nature of compensation of the members of the governing authority subject to the following conditions:
    1. Any increase in salary, compensation, expenses, or expenses in the nature of compensation for members of a county governing authority shall not be effective until the first day of January of the year following the next general election held after the date on which the action to increase the compensation was taken;
    2. A county governing authority shall take no action to increase salary, compensation, expenses, or expenses in the nature of compensation until notice of intent to take such action and the fiscal impact of such action has been published in a newspaper designated as the legal organ of the county at least once a week for three consecutive weeks immediately preceding the meeting at which the action is taken; and
    3. Such action shall not be taken during the period of time beginning with the date that candidates for election as members of the county governing authority may first qualify as such candidates and ending with the first day of January following the date of qualification.
  3. Salary, compensation, expenses, and expenses in the nature of compensation paid to members of a county governing authority in accordance with applicable local or general salary laws in effect on January 1, 2001, and as subsequently amended, shall continue in full force and effect as compensation for such county officials unless such compensation is increased pursuant to subsection (b) of this Code section; and this Code section shall not affect the power of the General Assembly at any time by local or general law to increase or decrease any or all of such compensation or by local law to withdraw the authority otherwise granted to a county governing authority under this Code section. (Code 1981, § 36-5-24 , enacted by Ga. L. 2001, p. 789, § 1; Ga. L. 2013, p. 141, § 36/HB 79.)

Editor's notes. - Former Code Section 36-5-24 was repealed and reserved by Ga. L. 1994, p. 237, § 2, effective July 1, 1994. This former Code section, relating to salary of county commissioner in counties having a population of not less than 12,300 or more than 12,400, was based on Code 1981, § 36-5-23 , enacted by Ga. L. 1982, p. 588, §§ 1, 2; Code 1981, § 36-5-24 , as redesignated by Ga. L. 1983, p. 3, § 27; Ga. L. 1993, p. 91, § 36.

Law reviews. - For article, "Local Government Law," see 53 Mercer L. Rev. 389 (2001).

JUDICIAL DECISIONS

Citizen challenging legality of salary increase ordinances. - County citizen lacked standing to seek a declaratory judgment with respect to the claims challenging the legality of the salary ordinance as the citizen did not seek to enforce a public duty conferred by statute but rather sought to block the enforcement of an ordinance passed pursuant to O.C.G.A. Ý 36-5-24 ; thus, O.C.G.A. Ý 9-6-24 did not confer a citizen standing to challenge the validity of acts authorized by the statute or to attack the constitutionality of the statute. Williams v. DeKalb County, Ga. , 840 S.E.2d 423 (2020).

Suit challenging ordinances increasing pay. - Plaintiff, as an individual, had standing to request that a civil penalty be imposed against the commissioners under the Open Meetings Act, O.C.G.A. Ý 50-14-1 et seq., in a suit challenging the county governing authorities increasing their pay via ordinances because the provision plainly contemplated that a private person (or firm, corporation, or other entity) can bring an action to enforce the Act to protect the public from closed-door politics. Williams v. DeKalb County, Ga. , 840 S.E.2d 423 (2020).

36-5-25. Salary of county commissioner in county administered by single commissioner.

  1. In every county of this state in which the county government is administered by a single county commissioner, such county commissioner shall be entitled to receive a minimum annual salary equal in amount to the minimum annual salary provided for the sheriff of any such county pursuant to the provisions of subsection (a) of Code Section 15-16-20; provided, however, that a local law may provide for a greater annual salary than such minimum salary or may provide an expense allowance in addition to such minimum salary or in addition to such greater salary; provided, further, that any such county commissioner may by resolution elect to receive a salary of lesser amount which is provided by a local law.
  2. The provisions of subsection (a) of this Code section shall not affect any automobile allowance provided for any such county commissioner pursuant to local law. (Code 1981, § 36-5-25 , enacted by Ga. L. 1986, p. 347, § 1; Ga. L. 1994, p. 237, § 2; Ga. L. 2002, p. 1038, § 2.)

36-5-26. Authorization for service of process.

A county governing authority shall have the power to authorize any of the officers, agents, and employees of the county to serve, in any manner prescribed by applicable law, any process, summons, notice, or order on all persons, as defined in Code Section 1-3-3 therein named, when:

  1. The paper to be served arises out of or relates to an activity or condition conducted or maintained by such person within the territorial jurisdiction of the county in violation of an applicable law or ordinance covering the following: public housing, building, electrical, plumbing, heating, ventilating, air-conditioning, air and water pollution control, solid waste management, and other technical or environmental codes; county business, occupation, and professional license tax ordinances; county privilege license or permit ordinances; or ordinances providing for the protection of facilities for the treatment or wholesale or retail distribution of water from tampering or theft which may arise either from a single isolated act or omission or from an activity or condition;
  2. The paper to be served originates in or is issued under the authority of the department or branch of county government employing such officer, agent, or employee; and
  3. Each and every day the condition is maintained or the activity is conducted is made a separate county offense by applicable law or ordinance. Where any such paper names one or more persons who reside outside the territorial jurisdiction of the county, the several sheriffs, marshals, and constables of the several counties of this state are authorized and directed to serve any such paper and make appropriate return of such service by them, as other process is served and returned, on such named persons residing in their respective jurisdictions, upon receipt of a written request to make such service, for the fees allowed for service of process issued by the superior courts of this state. (Code 1981, § 36-5-26 , enacted by Ga. L. 1992, p. 2122, § 1.)

36-5-27. Compensation supplement with designation as a certified county commissioner.

In addition to any other compensation to which a member of a county governing authority is entitled under general or local law, any such official who has been awarded a certificate from the University of Georgia, evidencing his or her successful completion of the voluntary course of training administered by the Carl Vinson Institute of Government resulting in designation as a certified county commissioner shall be entitled to a compensation supplement of $100.00 per month. With regard to members of the governing authority of a consolidated government, designation either as a certified county commissioner or a certified municipal official by the Carl Vinson Institute of Government shall be acceptable.

(Code 1981, § 36-5-27 , enacted by Ga. L. 2001, p. 902, § 18.)

36-5-28. Members of county governing authority to receive compensation increase when classified service employees receive increase; calculation; effective date.

Whenever the state employees subject to compensation plans authorized and approved in accordance with Code Section 45-20-4 receive a cost-of-living increase or general performance based increase of a certain percentage or a certain amount, the compensation to which a member of a governing authority is entitled under general or local law shall be increased by the same percentage or same amount applicable to such state employees. If the cost-of-living increase or general performance based increase received by state employees is in different percentages or different amounts as to certain categories of employees, the amount to which a member of a county governing authority is entitled under general or local law shall be increased by a percentage or an amount not to exceed the average percentage or average amount of the general increase in salary granted to the state employees. The Office of Planning and Budget shall calculate the average percentage increase or average amount increase when necessary. The periodic changes in the amount to which a member of a county governing authority is entitled under general or local law shall become effective on the first day of January following the date that the cost-of-living increases or general performance based increases received by state employees become effective; provided, however, that if the cost-of-living increases received by state employees become effective on January 1, such periodic changes in the amount to which a member of a county governing authority is entitled under general or local law shall become effective on the same date that the cost-of-living increases or general performance based increases received by state employees become effective.

(Code 1981, § 36-5-28 , enacted by Ga. L. 2001, p. 902, § 18; Ga. L. 2009, p. 745, § 1/SB 97; Ga. L. 2012, p. 446, § 2-55/HB 642.)

Cross references. - Salaries and fees of public officers and employees, T. 45, C. 7.

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."

36-5-29. Pay increases for certain members of county governing authorities.

  1. Compensation to which a member of a county governing authority is entitled under general or local law, including amounts provided for in Code Sections 36-5-27 and 36-5-28 shall be increased by multiplying said amounts by the percentage which equals 2.5 percent times the number of completed, four-year terms of office served by such member of a county governing authority where such terms have been completed after December 31, 2004, effective the first day of January following the completion of each such period of service.
  2. For a member of a county governing authority elected to two-year terms of office or six-year terms of office, the percentage increase provided for in subsection (a) of this Code section shall be 1.25 percent times the number of completed two-year terms or 3.75 percent times the number of completed six-year terms as applicable. (Code 1981, § 36-5-29 , enacted by Ga. L. 2006, p. 568, § 11/SB 450.)

CHAPTER 6 COUNTY TREASURER

Sec.

Cross references. - Accounting for public funds generally, T. 45, C. 8.

OPINIONS OF THE ATTORNEY GENERAL

It would not be proper for anyone to assume duties of treasurer nor would it be proper for the treasurer to attempt to delegate the treasurer's responsibilities and duties to some other officer or other person. 1965-66 Op. Att'y Gen. No. 65-94.

36-6-1. Qualifications for office; election; commission; term; abolishment and fixing compensation of office by General Assembly.

  1. No other conditions of eligibility are required for the office of county treasurer than those which apply to all other county officers, provided that no other county officer can also be county treasurer.
  2. County treasurers shall be elected and commissioned in the same manner and at the same time as clerks of the superior courts and shall hold their offices for terms of four years. The General Assembly, by local law, may abolish the office of county treasurer in any county and may fix the compensation of the county treasurer.

    (Orig. Code 1863, § 520; Code 1868, § 584; Code 1873, § 546; Code 1882, § 546; Civil Code 1895, § 452; Civil Code 1910, § 568; Code 1933, § 23-1002; Ga. L. 1983, p. 1212, § 1.)

    Eligibility for public office generally, T. 45, C. 2.

Cross references. - Eligibility for county office, Ga. Const. 1983, Art. IX, Sec. I, Para. III.

Law reviews. - For annual survey article on local government law, see 52 Mercer L. Rev. 341 (2000).

JUDICIAL DECISIONS

Cited in Nash v. Pierce, 238 Ga. App. 466 , 519 S.E.2d 462 (1999).

36-6-2. Requirement of bond and oath.

No appointment or election to the office of county treasurer is effective until bond and security is given and the oath of office is taken.

(Orig. Code 1863, § 517; Code 1868, § 581; Code 1873, § 543; Code 1882, § 543; Civil Code 1895, § 449; Civil Code 1910, § 565; Code 1933, § 23-1003.)

JUDICIAL DECISIONS

When duties of office begin. - Since the treasurer reelected for the new term beginning January 1, did not qualify by giving the bond and security and taking the oath of office until March 13, the treasurer necessarily did not begin to perform the duties of that office under the law for the new term until March 13. Century Indem. Co. v. Fidelity & Deposit Co., 175 Ga. 834 , 166 S.E. 235 (1932).

Effect of recital in bond contradicting beginning of duties of office. - Although the bond given as security recited that the bond was to cover the term of four years beginning January 1, such recital merely describes the term for which the treasurer was elected. Century Indem. Co. v. Fidelity & Deposit Co., 175 Ga. 834 , 166 S.E. 235 (1932).

Treasurer holds office until successor qualified. - County treasurer qualified and holding office for the term beginning January 1, continued to hold office four years later until the treasurer's successor, although the same individual, had qualified. Century Indem. Co. v. Fidelity & Deposit Co., 175 Ga. 834 , 166 S.E. 235 (1932).

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, § 123 et seq.

36-6-3. Form of oath.

In addition to the oath required of all public officers, before entering on the duties of their office, county treasurers must take the following oath:

"I, ________, do swear that I will faithfully collect, disburse, and account for all moneys or other effects of the county, and otherwise faithfully discharge all the duties required of me by law as county treasurer. So help me God."

(Orig. Code 1863, § 522; Code 1868, § 586; Code 1873, § 548; Code 1882, § 548; Civil Code 1895, § 454; Civil Code 1910, § 570; Code 1933, § 23-1004; Ga. L. 1987, p. 3, § 36.)

Cross references. - Oaths required of public officers generally, T. 45, C. 3.

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, § 124.

C.J.S. - 67 C.J.S., Officers and Public Employees, §§ 70, 71, 72.

36-6-4. When bond to be given; form and amount.

Within 30 days after his election or appointment, the county treasurer shall give a bond payable to the county governing authority with securities approved by such authority, in a sum which in its judgment will be ample to protect the county from any loss.

(Orig. Code 1863, § 523; Code 1868, § 587; Code 1873, § 549; Code 1882, § 549; Ga. L. 1889, p. 51, § 1; Civil Code 1895, § 455; Civil Code 1910, § 571; Ga. L. 1918, p. 109, § 1; Code 1933, § 23-1005.)

JUDICIAL DECISIONS

Effect of approval of insufficient bond. - Approval of a bond of a county treasurer for a penalty much less than that required by this section does not relieve the county treasurer of the necessity of giving a bond in the amount of the statutory penalty, when cited to do so by the proper officer. Tarver v. Wooten, 147 Ga. 19 , 92 S.E. 532 (1917).

Effect of invalid Act purporting to abolish office and fix bond. - Act purporting to abolish the office of treasurer of a county and to fix the amount of the bond of the clerk, which was later held invalid, is no authority for excusing that treasurer from giving a bond in the penal sum prescribed for bonds of county treasurers by this section. Tarver v. Wooten, 147 Ga. 19 , 92 S.E. 532 (1917).

Cited in Carter v. Veal, 42 Ga. App. 88 , 155 S.E. 64 (1930); Hancock County v. Hancock Nat'l Bank, 67 F.2d 421 (5th Cir. 1933).

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, §§ 130 et seq., 345 et seq., 358, 488, 489.

C.J.S. - 20 C.J.S., Counties, § 160.

36-6-5. Filing and recordation of oath and bond.

  1. The oath of office of the county treasurer must be entered on the minutes of the county governing authority and filed in his office. His official bond must be filed and recorded in such office.
  2. When one or more sureties on the bond of the county treasurer own real estate in any county or counties other than the county in which the treasurer holds office, such bond, within 30 days after the execution thereof, shall be recorded in the county or counties wherein the real estate is situated, by the county governing authority, or such bond shall be recorded within 30 days after its execution by the authority in the book of record of bonds of county officers. After the treasurer's bond is accepted and recorded in the county in which the treasurer holds office, the county governing authority of such county shall forward the same to the county governing authority in each county in which any one or more sureties on the bond own any real estate; such county governing authority to whom the bond is sent shall record the same in accordance with this subsection.

    (Laws 1838, Cobb's 1851 Digest, p. 215; Code 1863, § 521; Code 1868, § 585; Code 1873, § 547; Code 1882, § 547; Ga. L. 1890-91, p. 104, §§ 1, 2; Civil Code 1895, §§ 453, 974, 975; Civil Code 1910, §§ 569, 1241, 1242; Code 1933, §§ 23-1006, 23-1007, 23-1008.)

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, § 134.

C.J.S. - 20 C.J.S., Counties, §§ 159, 160. 67 C.J.S., Officers and Public Employees, § 70 et seq.

36-6-6. Recordation of bond to bind third parties; effect of recordation after 30 days.

As against the interests of third parties acting in good faith and without notice who may have acquired a transfer or lien binding the real estate of any surety on the bond of any county treasurer situated in any county other than that in which the treasurer holds office, no such real estate of the surety shall be bound from the date of the bond unless the bond is recorded in the county. When the bond is recorded after 30 days, the real estate of the surety situated in any county other than that in which the treasurer holds office shall be bound only from the date on which the bond is recorded.

(Ga. L. 1890-91, p. 104, § 3; Civil Code 1895, § 976; Civil Code 1910, § 1243; Code 1933, § 23-1009.)

36-6-7. Effect of Code Sections 36-6-5 and 36-6-6 on lien of bond.

Nothing in Code Sections 36-6-5 and 36-6-6 shall be construed to affect the validity or force of the lien of any such bond from the date thereof as between the parties thereto.

(Ga. L. 1890-91, p. 104, § 4; Civil Code 1895, § 977; Civil Code 1910, § 1244; Code 1933, § 23-1010.)

36-6-8. Time at which lien of bond arises.

When any official bond is executed by any county treasurer or any person acting as such, the property of the treasurer or person acting as such, as well as the security or securities on the bond, shall be bound from the time of the execution thereof for the payment of any and all liability arising from the breach of the bond.

(Ga. L. 1876, p. 15, § 1; Code 1882, § 549a; Civil Code 1895, § 456; Civil Code 1910, § 572; Code 1933, § 23-1012.)

JUDICIAL DECISIONS

Statement of policy. - This section is an expression of public policy by the lawmaking branch of the state, providing protection to public funds. It takes precedence over the generally recognized public policy in favor of free alienation of private property. Chero-Cola Co. v. May, 169 Ga. 273 , 149 S.E. 895 (1929).

Scope of lien. - Execution of an official bond creates a lien upon the property of the principal, and the property of the principal's sureties, for the payment of all liability that arises from breach of the bond. United States Fid. & Guar. Co. v. Richmond County, 174 Ga. 599 , 163 S.E. 482 (1932).

No lien on property held in trust. - When property is held in trust the property is not subject to an execution issued against trustees as principal and surety on a county treasurer's bond, notwithstanding at the time the bond was executed such trustees were the apparent owners of the land. Hurst v. Commissioners of DeKalb County, 110 Ga. 33 , 35 S.E. 294 (1900).

Priority of lien. - Conceding that this section creates a lien, the statute does not fix the priority of such a lien. Gormley v. Troup County, 178 Ga. 446 , 173 S.E. 672 (1934).

Timing. - When effort is made to arrest execution on property because the property is encumbered by a security deed, but it is not alleged that such deed is anterior in date to the bond of the treasurer, such effort will be unavailing. Roberts v. Dancer, 144 Ga. 341 , 87 S.E. 287 (1915).

Rights of sureties. - In view of a recognition by the personal sureties on a bond of the sureties' continued liability to the secured party under the bond, and of the necessary implication of a final judgment rendered, a court did not err in failing to make an express ruling upon the question of whether or not a purported cancellation entered on the original execution based on that bond was void. United States Fid. & Guar. Co. v. Clarke, 187 Ga. 774 , 2 S.E.2d 608 (1939).

Cited in Century Indem. Co. v. Fidelity & Deposit Co., 175 Ga. 834 , 166 S.E. 235 (1932); Traylor v. Gormley, 177 Ga. 135 , 169 S.E. 850 (1933).

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, § 135.

C.J.S. - 67 C.J.S., Officers and Public Employees, § 488.

36-6-9. Governor's directions relating to bond; payment of costs of transmitting and recording bond.

It shall be the duty of the Governor to give written or printed directions to the county governing authority upon the requirements of Code Sections 36-6-5 through 36-6-7, as other instructions and directions are now given in reference to the bonds of county treasurers. The costs of transmitting and recording the bonds shall be paid by the county treasurer.

(Ga. L. 1890-91, p. 104, § 5; Civil Code 1895, § 978; Civil Code 1910, § 1245; Code 1933, § 23-1011; Ga. L. 1982, p. 3, § 36.)

36-6-10. Location of office.

The county treasurer must keep his office at the county site or at some place within one mile of the courthouse.

(Orig. Code 1863, § 526; Code 1868, § 590; Code 1873, § 552; Code 1882, § 552; Civil Code 1895, § 459; Civil Code 1910, § 575; Code 1933, § 23-1014.)

36-6-11. Books and stationery furnished by county.

All books and stationery required by the county treasurer must be furnished at the expense of the county.

(Orig. Code 1863, § 528; Code 1868, § 592; Code 1873, § 554; Code 1882, § 554; Civil Code 1895, § 461; Civil Code 1910, § 577; Code 1933, § 23-1020.)

36-6-12. Compensation and fees.

County treasurers are entitled to receive the following fees:

  1. For receiving and paying out county funds:
    1. Two and one-half percent for receiving all sums up to $10,000.00.
    2. Two and one-half percent for paying out all sums up to $10,000.00.
    3. One and one-fourth percent for receiving the excess of any sum over $10,000.00.
    4. One and one-fourth percent for paying out the excess of any sum over $10,000.00.
  2. For making his returns to the grand jury, $1.00.
  3. For making his returns to the judge of the probate court, $1.00. However, in no case shall the compensation of a county treasurer exceed the sum of $3,000.00 per annum, unless within the sole discretion of the proper governing authority of the county the compensation is increased to a sum not to exceed $3,600.00 per annum. (Orig. Code 1863, § 3627; Code 1868, § 3652; Code 1873, § 3703; Ga. L. 1874, p. 20, § 1; Code 1882, § 3703; Ga. L. 1890-91, p. 76, § 1; Civil Code 1895, § 472; Civil Code 1910, § 588; Code 1933, § 23-1013; Ga. L. 1953, Nov.-Dec. Sess., p. 176, § 1.) Authority of General Assembly to fix compensation of county treasurers, § 36-6-1 .

Cross references. - Compensation of county officers generally, Ga. Const. 1983, Art. IX, Sec. I, Para. III.

JUDICIAL DECISIONS

How commissions to be computed. - Commissions allowed to county treasurers under former Civil Code 1895, § 472 (see now O.C.G.A. § 36-6-12 ) are to be computed upon their annual receipts and disbursements and not semiannual returns as provided by Ga. L. 1876, p. 13, §§ 1-3 (see now O.C.G.A. § 36-1-7 ). Burks v. Commissioners of Dougherty County, 99 Ga. 181 , 25 S.E. 270 (1896).

Law providing compensation for county treasurers is found in this section, and by reference to that it will be observed that the county treasurer receives compensation only for paying out "county funds" and for certain other services. McFarlin v. Board of Drainage Comm'rs, 153 Ga. 766 , 113 S.E. 447 (1922).

Moneys received from sale of bonds lawfully issued by county for erection of a courthouse are "county funds" within the meaning of this section. Chattooga County v. Megginson, 139 Ga. 509 , 77 S.E. 579 (1913).

Moneys received from temporary loan or loans to supply casual deficiencies of revenue, lawfully made, are "county funds" within the meaning of this section. Williams v. Sumter County, 21 Ga. App. 716 , 94 S.E. 913 (1918).

No right to commission for disbursing money illegally borrowed. - When a county treasurer receives from the county authorities, by virtue of the treasurer's office, money which has been illegally borrowed by the authorities, and disburses the money for current expenses of the county, and the illegal loans are repaid from money coming from taxes or other legitimate sources, the treasurer is not entitled to commissions for handling the illegally borrowed money, to be paid out of county funds proper. Roberts v. Dancer, 144 Ga. 341 , 87 S.E. 287 (1915); Williams v. Sumter County, 21 Ga. App. 716 , 94 S.E. 913 (1918).

Paying accrued interest. - Treasurer, for making a disbursement of county funds in paying accrued interest on bonds, is entitled to commissions. Chattooga County v. Megginson, 139 Ga. 509 , 77 S.E. 579 (1913).

Effect of local Act. - Under Ga. Const. 1877, Art. I, Sec. IV, Para. I (no comparable provision in Ga. Const. 1983), the legislature may fix the compensation of county treasurers, and if such a local Act is passed, it is paramount to this section that the treasurer is paid according to the terms of the Act instead of the terms of this section. Phillips v. Hanks, 154 Ga. 244 , 113 S.E. 806 (1922).

For constitutionality of local Act fixing compensation of county treasurer, see Moore v. Houston County, 124 Ga. 898 , 53 S.E. 506 (1906).

Cited in Hicks v. Bibb County, 44 Ga. App. 538 , 162 S.E. 157 (1932); Richmond County v. Pierce, 234 Ga. 274 , 215 S.E.2d 665 (1975).

RESEARCH REFERENCES

C.J.S. - 20 C.J.S., Counties, §§ 177, 195, 205, 206.

36-6-13. Receipt of commission or fees in connection with certain road contracts; collection and disbursement of road contract funds.

No county treasurer or other county official shall receive any commission on funds received or disbursed in connection with county contracts with the Department of Transportation for the construction or repair of roads; and this Code section and Code Sections 36-6-12 and 36-6-15 shall not apply to funds received or disbursed on such contracts. The funds received from county contracts with the Department of Transportation for the construction and repair of roads shall be collected by the county treasurer, in those counties having a county treasurer, and shall be disbursed by him without any commission or fee; in those counties having no county treasurer, the funds from these contracts shall be collected and disbursed by the usual officers without any commission or fee.

(Ga. L. 1939, p. 277, §§ 1, 2.)

Cross references. - Authority of county to contract for public road purposes generally, § 32-4-60 et seq.

36-6-14. Duties generally.

It is the duty of the county treasurer:

  1. To collect diligently from all officers and others all moneys due the county;
  2. To examine the minutes and execution dockets of the different courts of the county, to demand and receive all moneys appearing to be due thereon, and to institute proceedings against defaulters;
  3. To pay without delay, when there are sufficient funds, all orders or other debts due, according to their dates; when there are not sufficient funds, payment shall be made as prescribed in Code Section 36-11-4;
  4. To take a receipt on each order when paid and carefully file it away;
  5. To keep a well-bound book in which shall be entered all receipts, stating when received, from whom, and on what account, and all amounts paid out, stating when paid, to whom, and on what account;
  6. To keep a well-bound book in which shall be entered a full description of all county orders or other forms of indebtedness, as they are presented;
  7. To record a copy of the orders of the county governing authority levying county taxes;
  8. To exhibit to the first grand jury at the first session of the superior court of each year a full statement of the condition of the county treasury up to that time;
  9. On the second Monday in January of each year, to file with the county governing authority a full statement of his account, accompanied by his vouchers for the preceding year, together with his estimate of the indebtedness of the county for the ensuing year and the means of providing therefor;
  10. To place his books and vouchers before the grand jury or the county governing authority for examination when called upon to do so;
  11. To appear before the county governing authority or the grand jury to render an account of his actings and doings as county treasurer; and
  12. To publish at the door of the courthouse and in a public newspaper, if there is one published in the county, a copy of his annual statement to the county governing authority.

    (Ga. L. 1859, p. 25, § 1; Code 1863, § 527; Code 1858, § 591; Code 1873, § 553; Code 1882, § 553; Civil Code 1895, § 460; Civil Code 1910, § 576; Code 1933, § 23-1015; Ga. L. 1982, p. 3, § 36.)

JUDICIAL DECISIONS

Publication not connected with probate court proceedings. - Publication of the statement required to be made under this section was neither directly nor remotely connected with the business or any proceeding of the court of ordinary (now judge of the probate court). Howard v. Early County, 104 Ga. 669 , 30 S.E. 880 (1898).

Power of ordinary (now judge of the probate court) to cite treasurer to appear. - Under former Code 1873, §§ 553, 563, 337 (see O.C.G.A. §§ 36-6-14 , 36-6-27 , and 36-5-1(7) (since repealed)) the ordinary (now judge of the probate court) had jurisdiction to cite the county treasurer to appear before the ordinary for a settlement of the treasurer's accounts as well as to order that moneys in the treasurer's hands be paid out by the treasurer to the proper persons; and upon the treasurer's failure to pay, to issue an execution for such default. Smith v. Outlaw, 64 Ga. 677 (1880).

Upon refusal to pay, mandamus will lie against treasurer of county to compel payment of any part of salary when by law the salary is payable and after the salary has been demanded, although at the time of making demand no formal warrant had issued therefor. Clark v. Eve, 134 Ga. 788 , 68 S.E. 598 (1910).

Use of record in evidence. - When a county treasurer failed to comply with the requirements of former Code 1882, §§ 508 and 553 (see now O.C.G.A. §§ 36-6-14 and 36-11-5 ), and when an execution was issued by the ordinary (now judge of the probate court) against the treasurer as a defaulter, the treasurer could not take advantage of the treasurer's own negligence so as to substitute evidence of a lower character for the record which it was incumbent upon the treasurer to make out and deposit. Price v. Douglas County, 77 Ga. 163 , 3 S.E. 240 (1887).

When bank acts as county treasurer. - Bank acting as county depository becomes a quasi-public officer. It is therefore the duty of such bank, acting as county treasurer, to receive the surplus of the fine and forfeiture fund, and hold the funds for distribution as required by law. Banks County v. Stark, 88 Ga. App. 368 , 77 S.E.2d 33 (1953).

Fund raised by private donation not county fund. - Fund raised by private donation, for courthouse, handled by ordinary (now judge of the probate court) and not paid into treasurer, was not a county fund in the sense used in former Civil Code 1895, §§ 458 and 460 (see now O.C.G.A. §§ 36-6-14 and 36-6-15 ), and not demandable by the treasurer. Worth County v. Sykes, 2 Ga. App. 175 , 58 S.E. 380 (1907).

RESEARCH REFERENCES

C.J.S. - 20 C.J.S., Counties, §§ 195, 205, 206.

36-6-15. Collection and disbursal of funds generally.

All county funds are to be paid to and disbursed by the county treasurer except such as may be specially excepted by law, which shall be collected and disbursed as specially directed.

(Laws 1825, Cobb's 1851 Digest, p. 211; Code 1863, § 525; Code 1868, § 589; Code 1873, § 551; Code 1882, § 551; Civil Code 1895, § 458; Civil Code 1910, § 574; Code 1933, § 23-1016.)

JUDICIAL DECISIONS

When bank is county treasurer. - Bank acting as county depository becomes a quasi-public officer. It is therefore the duty of such bank, acting as county treasurer, to receive the surplus of the fine and forfeiture fund, and hold the funds for distribution as required by law. Banks County v. Stark, 88 Ga. App. 368 , 77 S.E.2d 33 (1953).

Liability for failure to disburse money illegally borrowed. - Where the authorities in charge of the finances borrowed money for county purposes without authority of law, and the money thus unlawfully borrowed was received by the county treasurer as county funds, the county treasurer is liable for failure to disburse the money. Mason v. Commissioners of Rds. & Revenues, 104 Ga. 35 , 30 S.E. 513 (1898).

Money borrowed to meet expenses not county funds within meaning of section. Hall v. County of Greene, 119 Ga. 253 , 46 S.E. 69 (1903).

Fund raised by private donation not county fund. - Fund raised by private donation, for courthouse, handled by ordinary (now judge of the probate court) and not paid into treasurer, was not a county fund in sense used in former Civil Code 1895, §§ 458 and 460 (see now O.C.G.A. §§ 36-6-14 and 36-6-15 ), and not demandable by the treasurer. Worth County v. Sykes, 2 Ga. App. 175 , 58 S.E. 380 (1907).

Proceeds of county bonds. - Ordinary (now judge of the probate court) who receives the proceeds of county bonds may be compelled by mandamus to turn the funds over to the county treasurer. Aaron v. German, 114 Ga. 587 , 40 S.E. 713 (1902).

How affected by contract. - In view of former Civil Code 1895, §§ 458 and 460 (see now O.C.G.A. §§ 36-6-14 and 36-6-15 ), mandamus was not granted a county treasurer against county commissioners to compel delivery to the treasurer of balance of purchase price of bonds sold by them to a bank, under contract that proceeds should be left on deposit. Smith v. Hodgson, 129 Ga. 494 , 59 S.E. 272 (1907).

Cited in Cureton v. Wheeler, 172 Ga. 879 , 159 S.E. 283 (1931); Hancock County v. Hancock Nat'l Bank, 67 F.2d 421 (5th Cir. 1933); Harrison v. May, 228 Ga. 684 , 187 S.E.2d 673 (1972).

OPINIONS OF THE ATTORNEY GENERAL

Assumption of duties by another. - It would not be proper for anyone to assume the duties of the treasurer nor would it be proper for the treasurer to attempt to delegate the treasurer's responsibilities and duties to some other officer or other person. 1965-66 Op. Att'y Gen. No. 65-94.

Purchase of right of way. - Laws of this state do not authorize the setting aside of moneys in a "special fund" to purchase a right of way for county roads. 1969 Op. Att'y Gen. No. 69-231.

RESEARCH REFERENCES

C.J.S. - 20 C.J.S., Counties, §§ 195, 319, 320.

36-6-16. Deposits of county funds in designated depositories.

The treasurers of the several counties are authorized to deposit the county funds which may come into their hands as county treasurers in any bank or banking institution which has been designated by law as a depository for the funds of the state.

(Ga. L. 1917, p. 199, § 1; Code 1933, § 23-1017.)

Law reviews. - For article considering the public official's potential liability for funds, losses and torts, and suggesting insurance coverage, see 11 Mercer L. Rev. 288 (1960).

JUDICIAL DECISIONS

Requirements of section not absolute. - None of these provisions, Ga. L. 1917, p. 199, §§ 1, 2, and Ga. L. 1924, p. 86, §§ 1, 2 (see now O.C.G.A. §§ 36-1-8 , 36-6-16 and 36-6-17 ), make the statutory requirements absolute. Century Indem. Co. v. Fidelity & Deposit Co., 175 Ga. 834 , 166 S.E. 235 (1932).

It must be observed that neither Ga. L. 1917, p. 199, § 1 (see now O.C.G.A. § 36-6-16 ) nor Ga. L. 1924, p. 86, §§ 1, 2 (see now O.C.G.A. § 36-1-8 ) make the statutory requirements absolute; county treasurers may follow the provisions of either of these statutes, and thereby become absolutely safe from loss, as well as making safe the public funds with which they are entrusted; however, it appears the treasurer may keep the funds in the treasurer's possession so long as the treasurer is prepared to pay the funds out when lawfully authorized and required so to do. Allen v. Henderson, 48 Ga. App. 74 , 172 S.E. 94 (1933).

Right to receive deposit not conditional upon giving bond. - Former Code 1933, § 23-1018 (see now O.C.G.A. § 36-6-17 ) did not purport to condition the right to receive the deposit upon the giving of a bond but fixed a duty on the depository which has undertaken so to act to give a bond to the treasurer sufficient to protect the treasurer officially from any loss. Hancock County v. Hancock Nat'l Bank, 67 F.2d 421 (5th Cir. 1933).

Fact of deposit is not default. - County treasurers in Georgia very generally deposit the treasurers' public funds in a bank as a convenient and safe method of handling. Such deposits have never been considered as amounting to a default. Century Indem. Co. v. Fidelity & Deposit Co., 175 Ga. 834 , 166 S.E. 235 (1932).

Treasurer liable if unable to produce funds. - Notwithstanding such deposits, the treasurer and the treasurer's bondsmen are liable, if the funds are not forthcoming when officially required. Century Indem. Co. v. Fidelity & Deposit Co., 175 Ga. 834 , 166 S.E. 235 (1932).

Cited in Hancock County v. Hancock Nat'l Bank, 67 F.2d 421 (5th Cir. 1933); American Sur. Co. v. City of Thomasville, 73 F.2d 584 (5th Cir. 1934); Austin-Western Rd. Mach. Co. v. Fayette County, 99 F.2d 565 (5th Cir. 1938).

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Funds, § 7 et seq.

C.J.S. - 20 C.J.S., Counties, §§ 195, 205, 206. 26B C.J.S., Depositaries, § 40 et seq.

36-6-16.1. Deposit of funds held for benefit of third persons by officer of county or court in treasury of counties having population of 600,000 or more.

  1. It shall be lawful in all counties of this state having a population of 600,000 or more according to the United States decennial census of 1990 or any future such census for any county officer and any officer of any court, including the superior court in such counties, having in his possession and custody any funds, including trust funds, held for the benefit of any third person or litigant or for any purpose or subject to the order of any court or other tribunal to deposit such funds for safekeeping in the treasury of the county and to accept therefor the receipt of the treasurer or other fiscal officer of such county.
  2. The original custodian of such fund before making any deposit may require the treasurer or other fiscal officer to execute in his favor a special bond in an amount not less than the aggregate of all funds so deposited and held by the treasurer or other fiscal officer, which bond with security approved by the superior court of such county shall be conditioned to repay or disburse all of such funds under proper legal authority. In lieu of other security on such bond, the treasurer or other fiscal officer may deposit in a safe place a bond of the United States Treasury in an amount not less than the aggregate of all deposits secured by such bond.
  3. The treasurer of any county or other fiscal officer charged with the custody of county funds may decline to accept funds from any officer or officer of the court for deposit and safekeeping when in the judgment of such treasurer or other fiscal officer the conditions imposed are burdensome or would cause hardship or financial loss.
  4. Any officer or officer of the court who deposits funds in his custody in the treasury of the county of such officer or officer of the court shall be relieved of personal responsibility for the safekeeping of such funds as may be entrusted to the treasury of the county under this Code section.
  5. This Code section shall not be interpreted to prevent or delay the direct payment into the county treasury of all funds belonging to such county and collected by or held by an officer or officer of the court, but all of same shall be deposited immediately in the county treasury without the requirement of any special bond. (Ga. L. 1963, p. 2180, §§ 1-5; Code 1981, § 36-6-16.1 , enacted by Ga. L. 1982, p. 2107, § 32; Ga. L. 1992, p. 2350, § 1.)

36-6-17. Furnishing of bonds by depositories selected by treasurer.

Any depository of state funds selected by the county treasurer to be a depository of the county funds shall, in addition to the bond given to the state as security for the money of the state deposited in such bank, give to the county treasurer a bond in an amount sufficient to protect him from any loss, which bond shall be payable to him and shall be conditioned to account fully to him for all county moneys that may be deposited by him as county treasurer under the terms of this article.

(Ga. L. 1917, p. 199, § 2; Code 1933, § 23-1018.)

JUDICIAL DECISIONS

Requirements of section not absolute. - None of these provisions, Ga. L. 1917, p. 199, §§ 1, 2 and Ga. L. 1924, p. 86, §§ 1, 2 (see now O.C.G.A. §§ 36-1-8 , 36-6-16 , and 36-6-17 ), make the statutory requirements absolute. Century Indem. Co. v. Fidelity & Deposit Co., 175 Ga. 834 , 166 S.E. 235 (1932).

Right to receive deposit not conditional upon giving bond. - Former Code 1933, § 23-1018 (see now O.C.G.A. § 36-6-17 ) did not purport to condition the right to receive the deposit upon the giving of a bond but fixed a duty on the depository which has undertaken so to act to give a bond to the treasurer sufficient to protect the treasurer officially from any loss. Hancock County v. Hancock Nat'l Bank, 67 F.2d 421 (5th Cir. 1933).

Treasurer does not make deposit at the treasurer's own risk and does not take bond for the treasurer's personal benefit, but the treasurer acts throughout for the county and in the treasurer's official capacity, and the bond is to be payable to the treasurer as treasurer and is to prevent loss to the treasury. Hancock County v. Hancock Nat'l Bank, 67 F.2d 421 (5th Cir. 1933).

Treasurer liable if unable to produce funds. - Notwithstanding such deposits, the treasurer and the treasurer's bondsmen are liable if the funds are not forthcoming when officially required. Century Indem. Co. v. Fidelity & Deposit Co., 175 Ga. 834 , 166 S.E. 235 (1932).

Fact of deposit not default. - County treasurers in Georgia very generally deposit the treasurers' public funds in a bank as a convenient and safe method of handling. Such deposits have never been considered as amounting to a default. Century Indem. Co. v. Fidelity & Deposit Co., 175 Ga. 834 , 166 S.E. 235 (1932).

Security company has duty to investigate. - When a security company agrees to execute a surety bond of a public officer, the company has the opportunity and should avail itself of every means of ascertaining exactly what position that officer occupies with respect to public funds for which the company assumes liability. Century Indem. Co. v. Fidelity & Deposit Co., 175 Ga. 834 , 166 S.E. 235 (1932).

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Funds, § 15 et seq.

C.J.S. - 26B C.J.S., Depositaries, § 67.

36-6-18. Arrangements for payment of interest on deposits; disposition of interest payments.

The county treasurers are authorized to arrange with the bank to pay interest on the money deposited with the bank, but they are not required to do so. Any money received by them as interest must be paid by them into the treasury of the county.

(Ga. L. 1917, p. 199, § 3; Code 1933, § 23-1019.)

JUDICIAL DECISIONS

Cited in Hancock County v. Hancock Nat'l Bank, 67 F.2d 421 (5th Cir. 1933); Austin-Western Rd. Mach. Co. v. Fayette County, 99 F.2d 565 (5th Cir. 1938).

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Funds, § 11.

C.J.S. - 26B C.J.S., Depositaries, § 101.

36-6-19. Disposition of books of treasurer when full.

When the books of the county treasurer are full, they must be deposited, together with the vouchers and other files relating thereto, in the office of the county governing authority and shall be part of its records.

(Orig. Code 1863, § 529; Code 1868, § 593; Code 1873, § 555; Code 1882, § 555; Civil Code 1895, § 462; Civil Code 1910, § 578; Code 1933, § 23-1021.)

36-6-20. Delivery of money, books, papers, and property to successor.

Upon the resignation, expiration of the term, or removal from office of the county treasurer, he, or, if he is dead, his personal representative, must state his accounts and deliver all the money, books, papers, and property of the county to his successor, as do other officers. His successor must report the same immediately to the county governing authority.

(Orig. Code 1863, § 541; Code 1868, § 605; Code 1873, § 564; Code 1882, § 564; Civil Code 1895, § 470; Civil Code 1910, § 586; Code 1933, § 23-1022.)

JUDICIAL DECISIONS

Provisions of former Civil Code 1910, §§ 586 and 587 (see now O.C.G.A. §§ 36-6-20 and 36-6-21 ) were not applicable to annual accounting and settlement made by the tax collector with the county commissioners. Read v. Glynn County, 145 Ga. 881 , 90 S.E. 60 (1916).

36-6-21. Final settlement of accounts.

When the county treasurer or his personal representative has made a fair and full statement of all his accounts and liabilities as such, pursuant to Code Section 36-6-20, an exoneration of himself and his sureties, together with the details of such settlement, must be entered on the minutes of the county governing authority. It shall be final, except for fraud.

(Orig. Code 1863, § 542; Code 1868, § 606; Code 1873, § 565; Code 1882, § 565; Civil Code 1895, § 471; Civil Code 1910, § 587; Code 1933, § 23-1023.)

JUDICIAL DECISIONS

Provisions of former Civil Code 1910, §§ 586 and 587 (see now O.C.G.A. §§ 36-6-20 and 36-6-21 ) were not applicable to annual accounting and settlement made by the tax collector with the county commissioners. Read v. Glynn County, 145 Ga. 881 , 90 S.E. 60 (1916).

Cited in Board of Comm'rs v. Massachusetts Bonding Ins. Co., 175 Ga. 584 , 165 S.E. 828 (1932).

RESEARCH REFERENCES

C.J.S. - 20 C.J.S., Counties, §§ 205, 206.

36-6-22. Requirement of accountings by treasurer.

It shall be the duty of the judge of the probate court or county governing authority to compel the treasurers of the county to come before the court or governing authority at such times as may be designated by the judge or governing authority, not less than twice in each year, to render an account of his official actings and doings respecting the county tax and funds and to make a full and complete exhibit of his books, vouchers, accounts, and all things pertaining to his office.

(Ga. L. 1882-83, p. 82, § 1; Civil Code 1895, § 418; Civil Code 1910, § 527; Code 1933, § 23-1024; Ga. L. 1982, p. 3, § 36.)

JUDICIAL DECISIONS

Power of commissioners to require appearance. - Under former Civil Code 1910, §§ 527 and 528 (see now O.C.G.A. §§ 36-6-22 and 36-6-23 ), the board of commissioners of roads and revenues has authority to require the tax collector to appear before the board at stated times to render an account of the collector's official actings. Edmondson v. Glenn, 153 Ga. 401 , 112 S.E. 366 (1922).

In a proceeding under former Civil Code 1910, § 527 (see now O.C.G.A. § 36-6-22 ) or former Civil Code 1910, § 528 (see now O.C.G.A. § 48-5-140 ), the ordinary (now judge of the probate court) acted in a judicial or quasi-judicial capacity. Riner v. Flanders, 173 Ga. 43 , 159 S.E. 693 (1931).

36-6-23. Proceedings upon failure of treasurer to render accounting.

The failure or refusal of any county treasurer to render the account and make the showing provided for by Code Section 36-6-22, after being notified to do so by the county governing authority, shall constitute malpractice in office. A conviction therefor shall subject the offender to removal from office. During the continuance of such failure or refusal after the notice aforesaid, the county governing authority shall suspend the treasurer from duty and shall appoint some fit and proper person to take charge of the county funds and perform the duties of his office until the question of his removal can be passed upon and decided by the proper tribunal. Proper bonds shall be taken from the person so appointed, as provided by law. The power given by this Code section and Code Section 36-6-22 to inquire into the affairs of the treasurer of the county and to suspend him from office in certain cases shall in no way affect the liability of the treasurer or that of the sureties on his bond.

(Ga. L. 1882-83, p. 82, § 2; Civil Code 1895, § 419; Civil Code 1910, § 528; Code 1933, § 23-1025.)

JUDICIAL DECISIONS

Cited in Pitts Banking Co. v. Sherman, 166 Ga. 495 , 143 S.E. 581 (1928).

RESEARCH REFERENCES

C.J.S. - 20 C.J.S., Counties, §§ 198, 199.

36-6-24. Removal of treasurer.

County treasurers may be removed from office in the same manner as clerks of the superior courts may be removed.

(Laws 1821, Cobb's 1851 Digest, p. 211; Laws 1838, Cobb's 1851 Digest, p. 215; Code 1863, § 518; Code 1868, § 582; Code 1873, § 544; Code 1882, § 544; Civil Code 1895, § 450; Civil Code 1910, § 566; Code 1933, § 23-1026.)

Cross references. - Removal of clerks of superior courts, § 15-6-82 .

OPINIONS OF THE ATTORNEY GENERAL

Finding of incapacity and removal. - Judge of the superior court can remove the current county treasurer from office after a jury finding of incapacity, pursuant to O.C.G.A. §§ 15-6-82 and 36-6-24 . 1985 Op. Att'y Gen. No. U85-30.

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, § 165 et seq.

C.J.S. - 20 C.J.S., Counties, § 168 et seq. 67 C.J.S., Officers and Public Employees, § 227 et seq.

36-6-25. Filling of vacancies.

Vacancies in the office of county treasurer shall be filled as are vacancies in other county offices.

(Orig. Code 1863, § 519; Code 1868, § 583; Code 1873, § 545; Code 1882, § 545; Civil Code 1895, § 451; Civil Code 1910, § 567; Code 1933, § 23-1027.)

OPINIONS OF THE ATTORNEY GENERAL

How construed. - Language "vacancies are filled as vacancies in other county offices" should be construed to mean how a majority of vacancies in county offices are filled and, of course, this leads to the provisions provided for the filling of vacancies in the office of clerk of the superior court. 1957 Op. Att'y Gen. p. 58.

Hold-over prevents a vacancy. 1957 Op. Att'y Gen. p. 58.

Procedure in event of incapacity of county treasurer. - There appears to be no Code provision authorizing the appointment of an "acting" county treasurer to serve in place of the elected treasurer until an incapacity of the current official ends. 1985 Op. Att'y Gen. No. U85-30.

Judge of the probate court can appoint a qualified person to carry out the duties of county treasurer if an incapacity has been established. If the vacancy was to last more than six months (and prior to the time for the regular election of the county treasurer), the probate court then would have to call for a special election to fill the unexpired term of the former county treasurer, pursuant to former O.C.G.A. §§ 15-6-54(b) and 15-6-56 . 1985 Op. Att'y Gen. No. U85-30.

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, §§ 88, 105 et seq.

C.J.S. - 20 C.J.S., Counties, § 163. 67 C.J.S., Officers and Public Employees, § 161 et seq.

36-6-26. Bonds of persons appointed to fill vacancies.

The amount of the bonds of appointees to fill vacancies shall be in the discretion of the county governing authority, taking into consideration the amount that may come into their hands, and shall be for double such amount.

(Orig. Code 1863, § 524; Code 1868, § 588; Code 1873, § 550; Code 1882, § 550; Civil Code 1895, § 457; Civil Code 1910, § 573; Code 1933, § 23-1028.)

RESEARCH REFERENCES

C.J.S. - 20 C.J.S., Counties, § 160. 67 C.J.S., Officers and Public Employees, §§ 73, 74.

36-6-27. Execution against county treasurer for failure to pay over money.

When the county treasurer at any time fails to pay any order which is entitled to payment, any other legal demand upon him, or any balance that is in his hands to his successor or to the person entitled to receive it, the county governing authority may issue execution against him and his sureties for the amount due, as against a defaulting tax collector.

(Laws 1825, Cobb's 1851 Digest, p. 212; Code 1863, § 540; Code 1868, § 604; Code 1873, § 563; Code 1882, § 563; Civil Code 1895, § 469; Civil Code 1910, § 585; Code 1933, § 23-1611.)

JUDICIAL DECISIONS

Inclusion of attorney's fees unconstitutional. - Former Code 1933, § 23-1611 (see now O.C.G.A. § 36-6-27 ), insofar as the statute authorized a board of commissioners to include in an execution attorney's fees under former Code 1933, § 91A-3183 (see now O.C.G.A. § 48-5-201 ), was unconstitutional and void because it was violative of U.S. Const., amend. 14, and Ga. Const. 1877, Art. I, Sec. I, Para. III (see now Ga. Const. 1983, Art. I, Sec. I, Para. I), in that no provision was made giving the county treasurer and the sureties on the treasurer's bond an opportunity to be heard as to the amount or reasonableness of such fees, and the law does not otherwise provide for any method of attack thereon. Former Code 1933, § 23-1611 was further unconstitutional and void because in violation of Ga. Const. 1877, Art. I, Sec. I, Para. I and Art. I, Sec. I, Para. XXIII (see now Ga. Const. 1983, Art. I, Sec. II, Paras. I and III), the determination of what attorney's fees incurred were reasonable and the assessment of such fees were judicial functions and could not be delegated to an administrative official. Massachusetts Bonding & Ins. Co. v. Floyd County, 178 Ga. 595 , 173 S.E. 720 (1934).

Relation to other sections. - Provisions of former Civil Code 1910, § 1187 (see now O.C.G.A. § 48-5-201 ), relating to issuance of executions against defaulting county tax collectors and their bondsmen, were by former Civil Code 1910, § 585 (see now O.C.G.A. § 36-6-27 ) made applicable to the issuance of executions against defaulting county treasurers and their bondsmen. Massachusetts Bonding & Ins. Co. v. Board of Comm'rs, 172 Ga. 409 , 157 S.E. 459 (1931).

Liability of official charged with custody of public funds greater than that of mere bailee. Lamb v. Dart, 108 Ga. 602 , 34 S.E. 160 (1899).

Power of ordinary (now judge of the probate court) to cite treasurer to appear for settlement of accounts. - Under former Code 1873, §§ 337, 553 and 563 (see now O.C.G.A. §§ 36-6-14 , 36-6-27 and 36-5-1 (since repealed)), the ordinary (now judge of the probate court) had jurisdiction to cite the county treasurer to appear before the ordinary for a settlement of the treasurer's accounts, as well as to order moneys in the treasurer's hands to be paid out by the treasurer to the proper persons, and upon the treasurer's failure to issue execution for such default. Smith v. Outlaw, 64 Ga. 677 (1880).

Power to issue execution against defaulting county treasurer was vested in the ordinary (now judge of the probate court), or in county commissioners if the fiscal affairs of the county were administered by the commissioners. Arthur v. Commissioners of Gordon County, 67 Ga. 220 (1881); Roberts v. Dancer, 144 Ga. 341 , 87 S.E. 287 (1915).

Execution authorized against absconding treasurer. - Ordinary (now judge of the probate court) is authorized to issue execution against an absconding county treasurer for money in the treasurer's hands. Jones v. Collier, 65 Ga. 553 (1880).

Execution to be issued in name of county. - Execution provided by this section against a defaulting county treasurer should be issued in the name of the county; but if issued in the name of the ordinary (now judge of the probate court) for the use of the county, such irregularity is an amendable defect, and does not render the process void. Roberts v. Dancer, 144 Ga. 341 , 87 S.E. 287 (1915).

Notice in writing not required. - It is not necessary that notice in writing be given before the issuing of the execution provided in this section. Price v. Douglas County, 77 Ga. 163 , 3 S.E. 240 (1887); Roberts v. Dancer, 144 Ga. 341 , 87 S.E. 287 (1915).

Execution is issued summarily, and defendant then has the right to test questions involved by trial by jury. A defendant who has had a full and complete trial after the issuance of execution has no cause to complain that the defendant did not have it before. Arthur v. Commissioners of Gordon County, 67 Ga. 220 (1881).

Liability of treasurer on bank's insolvency. - When a county treasurer, in making an accounting with the treasurer's successor, delivers a check representing public funds which the treasurer has in a bank, and the same is accepted in lieu of cash, and upon the acceptance and presentation of such check by the payee, credit therefor is transferred by the bank to the new treasurer, and the fact that the bank may be insolvent at the time of such transaction does not necessarily show a default by the officer making such accounting. In equity the transaction should be treated as a transfer of money to the extent of the amount which the bank could and would have paid in cash, if cash had been demanded. Board of Comm'rs v. Massachusetts Bonding & Ins. Co., 175 Ga. 584 , 165 S.E. 828 (1932).

Arrest of execution. - Execution by a county against the treasurer and the treasurer's surety must be construed to have been issued under this section; and having been so issued, the execution cannot be arrested by affidavit of illegality. Board of Comm'rs v. Massachusetts Bonding & Ins. Co., 175 Ga. 584 , 165 S.E. 828 (1932).

Remedy by affidavit of illegality not applicable to treasurers. - By Ga. L. 1915, §§ 1-3 (see now O.C.G.A. § 48-5-203 ), the law in relation to issuance of executions against county tax collectors was so amended as to afford a remedy by affidavit of illegality, but that Act did not extend so far as to afford such remedy to county treasurers and the treasurers' bondsmen. Massachusetts Bonding & Ins. Co. v. Board of Comm'rs, 172 Ga. 409 , 157 S.E. 459 (1931).

Interest. - In proceeding under this section, the county, having collected and used money which actually belonged to the plaintiff, is chargeable with interest the same as any other person would have been. United States Fid. & Guar. Co. v. Clarke, 190 Ga. 46 , 8 S.E.2d 52 (1940).

Interest charged against both principal and surety. - Former Civil Code 1910, §§ 585 and 1187 (see now O.C.G.A. §§ 36-6-27 and 48-5-201 ) drew no distinction between the principal and surety in regard to payment of interest, but the interest specified in the statute was to be charged against both the principal and surety. Massachusetts Bonding & Ins. Co. v. Board of Comm'rs, 172 Ga. 409 , 157 S.E. 459 (1931).

36-6-28. Purchase of county orders at less than full value or refusal to pay order.

Any county treasurer who buys up any county orders or claims for less than their full par value, either by himself or by agents, directly or indirectly, pays for them in property at an estimated value above its true value, refuses to pay an order when he has funds to pay the same, or illegally postpones the payment of an order shall be guilty of a misdemeanor and shall be removed from office on complaint and proof being made to the county governing authority.

(Orig. Code 1863, §§ 535, 536; Code 1868, §§ 599, 600; Code 1873, §§ 561, 562; Code 1882, §§ 561, 562; Civil Code 1895, § 468; Penal Code 1895, § 276; Civil Code 1910, § 584; Penal Code 1910, § 280; Code 1933, §§ 23-1609, 23-9902.)

JUDICIAL DECISIONS

Defect in title no defense. - Fact that the person from whom the treasurer bought the orders did not have good title is not a defense. Wilder v. State, 47 Ga. 522 (1873).

Treasurer may purchase warrants. - County orders or warrants may be sold, and the county treasurer personally is permitted to purchase a warrant, provided the treasurer pays full value therefor. Southern Ry. v. Fulton County, 170 Ga. 248 , 152 S.E. 567 (1930).

Accessory parties. - As this section provides for a misdemeanor, and there are no accessories in misdemeanors, all who knowingly participate in the criminal act, and all who procure, counsel, command, aid, or abet the commission of a misdemeanor are regarded by the law as the principal offenders, and may be indicted as such. Blalock v. State, 40 Ga. App. 242 , 149 S.E. 297 (1929).

Indictment. - To authorize a conviction under this section, it is necessary for the indictment to allege that the accused is a county treasurer or acts in an official capacity equal to a county treasurer if a county has no such office. Blalock v. State, 40 Ga. App. 242 , 149 S.E. 297 (1929).

RESEARCH REFERENCES

C.J.S. - 20 C.J.S., Counties, § 123.

CHAPTER 7 COUNTY SURVEYOR

Sec.

Cross references. - Determination of land boundaries generally, T. 44, C. 4.

36-7-1. Requirement of county surveyor for each county; appointment of assistants or deputies.

There must be one county surveyor for each county. The surveyor is empowered to appoint one or more assistants or deputies, for whose conduct he is responsible.

(Laws 1783, Cobb's 1851 Digest, p. 665; Laws 1784, Cobb's 1851 Digest, p. 670; Code 1863, § 548; Code 1868, § 612; Code 1873, § 571; Code 1882, § 571; Civil Code 1895, § 478; Civil Code 1910, § 596; Code 1933, § 23-1105.)

36-7-2. Election, commissioning, qualification, and removal of county surveyor; qualifications.

  1. County surveyors shall be elected, commissioned, qualified, and removed as are clerks of the superior courts and shall hold their offices for four years.
    1. Every person holding the post of county surveyor must be a qualified surveyor, licensed by the State Board of Registration for Professional Engineers and Land Surveyors, and such person must have successfully passed the examination given by the board as a prerequisite to the granting of a license as a land surveyor; provided, however, that any person holding the position of county surveyor on March 7, 1966, whether elected or appointed, shall not be required to meet the qualifications enumerated in this subsection so long as such person remains in the position of county surveyor, whether reappointed or reelected to this position.
    2. Paragraph (1) of this subsection shall not apply to:
      1. Any county having a population of less than 17,000 inhabitants according to the United States decennial census of 1960 or any future such census; or
      2. Any person who was holding the position of county surveyor in such a county on January 1, 1977, and who has acted continuously as county surveyor since that date, for as long as such person remains in the position of county surveyor, notwithstanding the fact that the population of the county has grown to exceed 17,000.
  3. Notwithstanding the provisions of subsection (b) of this Code section or paragraph (3) of subsection (b) of Code Section 43-15-29 , a county surveyor who is not licensed by the State Board of Registration for Professional Engineers and Land Surveyors shall only practice land surveying for the county and shall not engage in the private practice of professional land surveying; provided, however, that this subsection shall not apply to any county surveyor duly elected and holding office on June 30, 1986, so long as said person continues to hold the office of county surveyor; provided, however, that any county surveyor who has a minimum of four years of surveying experience shall be eligible to take the land surveyor examination and eligible for certification as a land surveyor. (Laws 1799, Cobb's 1851 Digest, p. 198; Code 1863, § 543; Code 1868, § 607; Code 1873, § 566; Code 1882, § 566; Civil Code 1895, § 473; Civil Code 1910, § 591; Code 1933, § 23-1101; Ga. L. 1966, p. 225, §§ 1, 4, 5; Ga. L. 1986, p. 888, § 1; Ga. L. 1988, p. 555, § 1.) Removal of clerks of superior courts, § 15-6-82 .

Cross references. - Election, qualifications, duties, powers, and compensation of county officers, Ga. Const. 1983, Art. IX, Sec. I, Para. III.

JUDICIAL DECISIONS

Cited in Philpot v. Wells, 69 Ga. App. 489 , 26 S.E.2d 155 (1943).

OPINIONS OF THE ATTORNEY GENERAL

Surveyor not subject to city business license. - County surveyor who makes surveys, other than those made by an order of the ordinary (now judge of the probate court) or court, is not subject to a city business license. 1958-59 Op. Att'y Gen. p. 371.

Applicability to one serving at time of enactment. - Any person who held the position of county surveyor on March 7, 1966 (the date this section was approved) could serve as county surveyor regardless of whether the person was licensed as a surveyor by the State Board of Registration for Professional Engineers and Land Surveyors so long as the person's service in that office was continuous. 1968 Op. Att'y Gen. No. 68-509.

Construed with § 36-7-9 and O.C.G.A. § 43-15-7 . - County surveyor who is not registered by the State Board of Registration for Professional Engineers and Land Surveyors may not, under any authority, engage in the private practice of land surveying outside of the county in which the surveyor was elected; nor may the surveyor engage in the private practice of land surveying in the county of election unless the surveyor was duly elected and holding office on June 30, 1986, and has continued, uninterrupted, to hold such office. 1990 Op. Att'y Gen. No. 90-13.

RESEARCH REFERENCES

C.J.S. - 20 C.J.S., Counties, § 164 et seq. 67 C.J.S., Officers and Public Employees, § 46.

36-7-2.1. Abolishing elected office and authorizing appointment; qualifications of appointed surveyor.

  1. The General Assembly may by local law abolish the office of elected county surveyor in any county of this state and authorize the governing authority of the county to appoint the county surveyor for such term of office as the General Assembly shall provide by said local law.
  2. A local law abolishing the office of elected county surveyor pursuant to the authority of this Code section shall comply with the provisions of Code Section 1-3-11 requiring referendum approval on abolishing certain offices, except that if the office of the elected county surveyor is vacant at the time of its abolishment or if the person holding the office was appointed to fill a vacancy pursuant to the provisions of Code Section 36-7-3, such office may be abolished at any time without the necessity of a referendum.
  3. A county surveyor appointed by a county governing authority pursuant to the authority of a local Act enacted pursuant to the provisions of this Code section shall possess the qualifications to hold office as a county surveyor specified by paragraph (1) of subsection (b) of Code Section 36-7-2 and shall carry out the duties of a county surveyor as provided in this chapter and other laws of this state. (Code 1981, § 36-7-2.1 , enacted by Ga. L. 1989, p. 919, § 1; Ga. L. 1993, p. 91, § 36.)

36-7-3. Procedure when election fails to fill office; procedure in event of vacancy.

  1. Whenever an election fails to fill the office of county surveyor, the judge of the probate court shall appoint a person to serve as the county surveyor until a successor is duly elected in a special election which shall be held at the time of the next general election to serve out the remainder of the unexpired term of office.
  2. In the event that a vacancy occurs in the office of county surveyor, the judge of the probate court shall appoint a person to serve for the unexpired term of office and until his successor is duly elected and has qualified.

    (Orig. Code 1863, § 544; Code 1868, § 608; Code 1873, § 567; Code 1882, § 567; Civil Code 1895, § 474; Civil Code 1910, § 592; Code 1933, § 23-1102; Ga. L. 1969, p. 350, § 1; Ga. L. 1988, p. 586, § 3.)

Editor's notes. - Ga. L. 1988, p. 586, § 7, not codified by the General Assembly, provided that the 1988 amendment of this Code section applied to any vacancy occurring on or after March 30, 1988.

JUDICIAL DECISIONS

Cited in Williams v. Richmond County, 241 Ga. 89 , 243 S.E.2d 55 (1978).

OPINIONS OF THE ATTORNEY GENERAL

Authority of judge of the probate court. - Former Code 1933, §§ 21-101 and 21-102 (see now O.C.G.A. §§ 45-16-1 and 45-16-2 ), when read in light of former Code 1933, § 23-1102 (see now O.C.G.A. § 36-7-3 ), designated the judge of the probate court as the proper authority to fill vacancies occurring in the county office of coroner absent special laws directing that this function be fulfilled by some other authority. 1978 Op. Att'y Gen. No. 78-58.

RESEARCH REFERENCES

C.J.S. - 20 C.J.S., Counties, § 163 et seq. 67 C.J.S., Officers and Public Employees, §§ 47, 161 et seq.

36-7-4. Commissioning of surveyor.

A county surveyor who derives his authority from appointment needs no commission beyond the order of the judge of the probate court entered on his minutes, of which appointment the Governor must be informed without delay.

(Orig. Code 1863, § 545; Code 1868, § 609; Code 1873, § 568; Code 1882, § 568; Civil Code 1895, § 475; Civil Code 1910, § 593; Code 1933, § 23-1103.)

36-7-5. Oath of office; bond and security.

In addition to the oath required of all public officers, the county surveyor must take the following oath before entering on the duties of his office:

"I, ________, swear that I will, to the best of my skill and knowledge, discharge the duties of surveyor of ________ County and that I will not admeasure, survey, or lay out any land, in my capacity as such, or knowingly permit or cause it to be done, without a warrant first obtained for that purpose. So help me God."

At the same time, he shall give bond and security in the sum of $1,000.00.

(Laws 1847, Cobb's 1851 Digest, p. 217; Code 1863, § 546; Code 1868, § 610; Code 1873, § 569; Code 1882, § 569; Civil Code 1895, § 476; Civil Code 1910, § 594; Code 1933, § 23-1104.)

Cross references. - Oaths required of public officers, T. 45, C. 3.

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, §§ 124, 130 et seq., 345 et seq., 354, 358, 488, 489.

C.J.S. - 20 C.J.S., Counties, §§ 159, 160. 67 C.J.S., Officers and Public Employees, § 70 et seq.

36-7-6. Oath of assistant; entry of appointment of assistant on minutes of probate court.

When an assistant is appointed by the county surveyor, he must take the same oath the county surveyor takes. The fact of his appointment must, at the same time, be entered on the minutes of the judge of the probate court.

(Orig. Code 1863, § 549; Code 1868, § 613; Code 1873, § 572; Code 1882, § 572; Civil Code 1895, § 479; Civil Code 1910, § 597; Code 1933, § 23-1106.)

36-7-7. Place of office.

The county surveyor may keep his office at his place of abode, if within the limits of the county. The county shall not be required to furnish the county surveyor with an office or facilities.

(Orig. Code 1863, § 550; Code 1868, § 614; Code 1873, § 573; Code 1882, § 573; Civil Code 1895, § 480; Civil Code 1910, § 598; Code 1933, § 23-1107; Ga. L. 1966, p. 225, § 2.)

36-7-8. Duties of surveyor generally.

It shall be the duty of the county surveyor:

  1. To observe punctually and carry into effect all such orders as he may receive from any officer who may lawfully command him;
  2. To partition lands, to make resurveys, to give plats of all surveys, and to administer all oaths required by law in such cases;
  3. To survey county lines and district lines and to make other surveys in which his county may be interested whenever required to do so by the county governing authority;
  4. To execute all surveys required by the rule or order of any court of competent jurisdiction; and
  5. To keep a well-bound book in which shall be entered plats of all surveys made by him with a minute of the names of the chainbearers, when executed, by whose order, and to whom the plat was delivered, if any. Such book shall belong to his office and shall be turned over to his successor; when full, it shall be deposited in the office of the county governing authority.

    (Laws 1783, Cobb's 1851 Digest, p. 668; Laws 1785, Cobb's 1851 Digest, p. 672; Laws 1838, Cobb's 1851 Digest, p. 215; Code 1863, § 551; Code 1868, § 615; Code 1873, § 574; Code 1882, § 574; Civil Code 1895, § 481; Civil Code 1910, § 599; Code 1933, § 23-1108; Ga. L. 1987, p. 3, § 36.)

Cross references. - Duties of county surveyor relating to surveys for homestead purposes, §§ 44-13-5 , 44-13-6 , 44-13-11 , 44-13-12 , 44-13-102 , 44-13-103 .

RESEARCH REFERENCES

Am. Jur. 2d. - 12 Am. Jur. 2d, Boundaries, § 46 et seq.

C.J.S. - 20 C.J.S., Counties, § 207.

ALR. - Partition: division of building, 28 A.L.R. 727 .

36-7-9. Establishment of fees.

  1. The county surveyor shall be allowed to establish a reasonable fee for each of the following acts:
    1. Surveying a town lot and returning a certificate thereof;
    2. Surveying a tract of land;
    3. Making a plat and recording, advertising, and transmitting the same to the Secretary of State's office;
    4. Making a resurvey of land by order of court;
    5. For every other survey, making and certifying a plat thereof and transmitting the same;
    6. Running lines between counties or districts or making new lines, per day, the county surveyor furnishing the chainbearer and provisions;
    7. Making a plat of homestead, affidavit, and return;
    8. Making each additional plat where there is more than one lot; and
    9. Making any other survey he may be called upon or required to perform.

      The fee established by the county surveyor shall be reasonably equivalent to the same fee which would be charged if the survey had been conducted by a private surveyor.

  2. The county surveyor shall be allowed to contract for his services in the same manner as private surveyors, whenever he is called upon or required to make a survey for a private or a corporate benefit or by order of the county governing authority or by order of the court.

    (Laws 1792, Cobb's 1851 Digest, p. 350; Code 1863, § 3626; Code 1868, § 3651; Ga. L. 1870, p. 68, § 1; Code 1873, § 3702; Code 1882, § 3702; Civil Code 1895, § 490; Civil Code 1910, § 608; Code 1933, § 23-1109; Ga. L. 1966, p. 225, §§ 3, 5; Ga. L. 1968, p. 1413, § 1.)

OPINIONS OF THE ATTORNEY GENERAL

Construction. - County surveyor who is not registered by the State Board of Registration for Professional Engineers and Land Surveyors may not, under any authority, engage in the private practice of land surveying outside of the county in which the surveyor was elected; nor may the surveyor engage in the private practice of land surveying in the surveyor's county of election unless the surveyor was duly elected and holding office on June 30, 1986, and has continued, uninterrupted, to hold such office. 1990 Op. Att'y Gen. No. 90-13.

No conflict with other sections. - There does not appear to be any conflict between former Code 1933, §§ 23-1109 and 85-1610 (see now O.C.G.A. §§ 36-7-9 and 44-4-10), but even if there were one, former Code 1933, § 23-1109 being based upon a more recent statute, would apparently govern. 1971 Op. Att'y Gen. No. U71-45.

36-7-10. Payment of fees generally.

The fees for surveys made by the county surveyor for private or corporate benefit shall be paid by the person or corporation ordering the survey. The fees for surveys made by order of the county governing authority shall be paid out of county funds. The fees for surveys made by order of court, unless otherwise agreed upon, are to be taxed in the bill of costs and shall have the effect of a judgment lien upon the land surveyed, if not paid by the party bound for costs.

(Orig. Code 1863, § 552; Code 1868, § 616; Code 1873, § 575; Code 1882, § 575; Civil Code 1895, § 482; Civil Code 1910, § 600; Code 1933, § 23-1110.)

JUDICIAL DECISIONS

Cost of survey. - When the plaintiffs sought an injunction restraining the defendant from closing a roadway running across the defendant's property to the plaintiff's property, the court did not err in taxing against the plaintiffs as a part of the costs, $128.00 incurred in making a survey ordered by the court. In an equity case, the court has the right to place the costs upon either of the parties, and this section definitely makes the cost of survey a part of the court costs. Nelson v. Girard, 215 Ga. 518 , 111 S.E.2d 60 (1959).

OPINIONS OF THE ATTORNEY GENERAL

Surveyor not subject to city business license. - County surveyor who makes surveys, other than those made by an order of the ordinary (now judge of the probate court) or court, is not subject to a city business license. 1958-59 Op. Att'y Gen. p. 371.

RESEARCH REFERENCES

Am. Jur. 2d. - 20 Am. Jur. 2d, Costs, §§ 69, 76.

36-7-11. Issuance of execution for fees.

A county surveyor who makes a survey for a person who neglects to pay him may make oath before the judge of the probate court of his county of the performance of such service and its value. The judge of the probate court shall thereupon issue a fi. fa. in his name for the use of the surveyor, against the person defaulting. Such person may defend himself therefor in the same manner as persons against whom executions issue for detaining county funds.

(Orig. Code 1863, § 554; Code 1868, § 618; Code 1873, § 577; Code 1882, § 577; Civil Code 1895, § 483; Civil Code 1910, § 608; Code 1933, § 23-1111.)

Cross references. - Filing of affidavit of illegality by person against whom execution has been issued for holding county money, § 48-5-239 .

JUDICIAL DECISIONS

Section provides remedy for collection of fee. - Former Code 1933, § 23-1111 (see now O.C.G.A. § 36-7-11 ), taken in connection with former Code 1933, § 91A-1219 (see now O.C.G.A. § 48-5-239 ), provided a remedy for a county surveyor to collect the surveyor's fees for official services rendered, and also a way for the defendant to test the correctness of the claim. Webb v. Stephens, 57 Ga. App. 395 , 195 S.E. 577 (1938).

OPINIONS OF THE ATTORNEY GENERAL

Judge must issue execution. - This section is clear and unambiguous and makes it the duty of the ordinary (now judge of the probate court) to issue a fi. fa. when the surveyor has complied with the provisions of this section. 1960-61 Op. Att'y Gen. p. 87.

36-7-12. Surveys or plats deemed presumptive evidence of facts.

Surveys or plats of lands within his county, made by the county surveyor under order of court and on notice to all the parties, signed by him officially, and stating the contents, courses, and distances of any land surveyed by him are presumptive evidence of the facts if all the requisites of the law touching such surveys and the reports thereof are complied with.

(Orig. Code 1863, § 555; Code 1868, § 619; Code 1873, § 578; Code 1882, § 578; Civil Code 1895, § 484; Civil Code 1910, § 602; Code 1933, § 23-1112.)

JUDICIAL DECISIONS

Admissibility of official survey. - Surveys or plats made pursuant to the requirements of this section are presumptive evidence of the facts set out therein. McClung v. Schulte, 214 Ga. 426 , 105 S.E.2d 225 (1958).

Survey made by others than county surveyor is not admissible in evidence, unless proved by parties who made the survey; the affidavit of such persons on the survey is not sufficient proof, and such affidavit, the persons making the survey not being sworn as witnesses in the pending trial, cannot be received as evidence of anything on that trial. Maples v. Hoggard, 58 Ga. 315 (1877).

Admissibility of unofficial survey. - Plat that did not show that the plat was purported to have been made by authority since the plat was shown to have been made before the city charter was ever issued did not meet the requirements of law of either former Code 1933, § 23-1112 or former Code 1933, § 38-312 (see now O.C.G.A. § 36-7-12 or former O.C.G.A. § 24-3-11 [see now O.C.G.A. § 24-8-803 ]), and could not be used in evidence without other testimony or evidence. Central of Ga. Ry. v. City of Metter, 222 Ga. 74 , 148 S.E.2d 661 (1966).

In an ejectment action, a plat introduced by the party bringing the action is not presumptive evidence of the facts set out in the plat, when there is no evidence that the plat is an official survey under this section. Costello v. Styles, 227 Ga. 650 , 182 S.E.2d 427 (1971).

Unofficial surveys are admissible when proved to be correct. McClung v. Schulte, 214 Ga. 426 , 105 S.E.2d 225 (1958).

Unofficial survey is admissible in evidence when proved to have been corrected by the parties who made the survey. Lewis v. Carr, 177 Ga. 761 , 171 S.E. 298 (1933).

Plat or survey is not admissible as substantive, presumptive evidence of facts set forth therein, unless it conforms to provisions of this section, but upon being verified by oral testimony as correct, the plat or survey may be admitted for the purpose of illustrating other competent testimony. Woodard v. Bowen, 213 Ga. 185 , 97 S.E.2d 573 (1957).

County tax plats admissible. - In an action to quiet title to real property, county tax plats used as evidence of the ownership of the depicted property were admissible. Resseau v. Bland, 268 Ga. 634 , 491 S.E.2d 809 (1997).

Survey not made under order of court so as to make plat admissible under this section is admissible as an official document for whatever it may have been worth as a pictorial representation of conditions found on the ground by the surveyor. Gilman Paper Co. v. James, 235 Ga. 348 , 219 S.E.2d 447 (1975).

Unofficial survey does not meet the statutory requirements of this section. However, an unofficial but properly verified survey is admissible for whatever weight the jury attaches to the survey. Johnson v. Jones, 242 Ga. 319 , 249 S.E.2d 30 (1978).

Effect of oral testimony. - Unless a survey of plat is of official origin and meets the requirements of this section, it carries no presumptive value as evidence of the facts, although, if verified by oral testimony, it is admissible as a part of and as illustrative of such oral testimony for whatever that testimony may be worth. R.G. Foster & Co. v. Fountain, 216 Ga. 113 , 114 S.E.2d 863 (1960).

Plat prepared by the county surveyor, which the surveyor identified as one prepared at the request of parties to the litigation, but not one which is shown to conform to the requirements of this section is admissible in evidence as a part of and illustrative of the oral testimony of the surveyor. Fendley v. Weaver, 121 Ga. App. 526 , 174 S.E.2d 369 (1970).

Witness as to correctness of survey. - In principle it would seem to be immaterial whether the witness who proposes to testify to the correctness of an unofficial survey be the surveyor, or one who was present at the time the survey was made, if the witness offers to testify to the correctness of the survey. Lewis v. Carr, 177 Ga. 761 , 171 S.E. 298 (1933).

Cited in Arnold v. Shackelford, 219 Ga. 839 , 136 S.E.2d 384 (1964); Minor v. Ray, 122 Ga. App. 531 , 177 S.E.2d 842 (1970); Fountain v. Bryan, 229 Ga. 120 , 189 S.E.2d 400 (1972); Sutton v. City of Cordele, 230 Ga. 681 , 198 S.E.2d 856 (1973); Clark v. Stafford, 239 Ga. App. 69 , 522 S.E.2d 6 (1999); Ware v. Rutledge, 240 Ga. App. 355 , 523 S.E.2d 411 (1999).

RESEARCH REFERENCES

Am. Jur. 2d. - 12 Am. Jur. 2d, Boundaries, § 95 et seq.

36-7-13. Persons who may perform duties of office when there is no county surveyor; oath; liability.

  1. When there is no county surveyor, any person who is a citizen of this state and who holds a current and valid certificate of registration as a land surveyor issued by the State Board of Registration for Professional Engineers and Land Surveyors may perform the duties of county surveyor, when specifically required or appointed to do so, if first sworn to do the same faithfully and impartially, to the best of his skill and knowledge.
  2. Persons performing such service are on the same footing as county surveyors as to the special service rendered and are personally liable as such surveyors are officially liable.

    (Orig. Code 1863, §§ 556, 557; Code 1868, §§ 620, 621; Code 1873, §§ 579, 580; Code 1882, §§ 579, 580; Civil Code 1895, §§ 485, 486; Civil Code 1910, §§ 603, 604; Code 1933, §§ 23-1113, 23-1114; Ga. L. 1973, p. 636, § 1.)

Cross references. - Certification of land surveyors by State Board of Registration for Professional Engineers and Land Surveyors, T. 43, C. 15.

JUDICIAL DECISIONS

Section mandatory upon processioners. - Upon application to processioners to mark anew a dividing line, the surveyor, where there is no county surveyor, must be chosen and qualified as provided by statute. Watkins v. Sailers, 65 Ga. App. 77 , 15 S.E.2d 306 (1941).

Oath mandatory. - When a private surveyor is selected and performs the duties required of a county surveyor without first having taken the oath required under this section, the return of the processioners is void. Watkins v. Sailers, 65 Ga. App. 77 , 15 S.E.2d 306 (1941).

Cited in Irby v. Raley, 88 Ga. App. 807 , 78 S.E.2d 72 (1953).

36-7-14. Appointment of disinterested surveyor; oath.

When any county surveyor is interested in any survey to be made, the judge of the superior court or the judge of the probate court of the county in which the land is located, upon the application of any party in interest, shall appoint a competent, disinterested surveyor or, in his discretion, may appoint the surveyor of any adjoining county to make the survey. If the surveyor appointed is not a county surveyor, before entering on the survey, he shall subscribe before some judicial officer of the county the oath required of county surveyors. The rights, powers, and duties of the surveyor so appointed shall be the same as those of the county surveyor. The return of the surveyor shall have the same force and effect as do other surveys.

(Ga. L. 1882-83, p. 104, §§ 1, 2; Civil Code 1895, §§ 487, 488; Civil Code 1910, §§ 605, 606; Code 1933, §§ 23-1115, 23-1116.)

JUDICIAL DECISIONS

Cited in Irby v. Raley, 88 Ga. App. 807 , 78 S.E.2d 72 (1953); Poss v. Guy, 212 Ga. 393 , 93 S.E.2d 565 (1956).

36-7-15. Removal of surveyor from office.

The county surveyor, whether elected or appointed, may be removed by the judge of the probate court for want of capacity, in the same fashion as clerks of the superior courts are removed in the superior court. This cause of removal shall be in addition to the causes which apply to all public officers.

(Orig. Code 1863, § 547; Code 1868, § 611; Code 1873, § 570; Code 1882, § 570; Civil Code 1895, § 477; Civil Code 1910, § 595; Code 1933, § 23-1117.)

Cross references. - Removal of clerks of superior courts, § 15-6-82 .

RESEARCH REFERENCES

Am. Jur. 2d. - 63C Am. Jur. 2d, Public Officers and Employees, §§ 170, 171, 177 et seq.

C.J.S. - 20 C.J.S., Counties, § 168 et seq.

36-7-16. Penalty for making false survey.

Any county surveyor or other person acting as such who knowingly surveys nonvacant land as vacant land or makes any other false survey shall be guilty of a misdemeanor.

(Orig. Code 1863, § 558; Code 1868, § 622; Code 1873, § 581; Code 1882, § 581; Civil Code 1895, § 489; Penal Code 1895, § 278; Civil Code 1910, § 607; Penal Code 1910, § 282; Code 1933, § 23-9903.)

RESEARCH REFERENCES

C.J.S. - 20 C.J.S., Counties, §§ 198, 199.

CHAPTER 8 COUNTY POLICE

Sec.

Cross references. - Police power of counties, generally, Ga. Const. 1983, Art. IX, Sec. II, Para. III(a)(1).

JUDICIAL DECISIONS

No change in general law. - Nothing in this chapter (especially Ga. L. 1914, p. 142, § 6 (see now O.C.G.A. § 36-8-3 )) which authorizes the appointment of county police officers, insofar as the statute may undertake to fix the liability of the sureties upon a county officer's bond, changes the general law as contained in former Civil Code 1910, § 291 (see now O.C.G.A. § 45-4-24 ). Hodge v. United States Fid. & Guar. Co., 42 Ga. App. 84 , 155 S.E. 95 (1930).

Cited in Levine v. Perry, 204 Ga. 323 , 49 S.E.2d 820 (1948); Barge v. Camp, 209 Ga. 38 , 70 S.E.2d 360 (1952); Thompson v. Hornsby, 235 Ga. 561 , 221 S.E.2d 192 (1975).

36-8-1. Election or appointment of county police; qualifications.

  1. The county governing authority shall have authority to elect or appoint such number of county police as in its discretion it deems proper, provided that the county governing authority complies with the provisions of this Code section. Any person elected or appointed to the county police shall possess the qualifications prescribed in Code Section 35-8-8.
    1. Each county governing authority may authorize, through proper resolution or ordinance, the creation of a county police force.  No resolution or ordinance adopted pursuant to this paragraph shall become effective until the governing authority of the county has submitted to the qualified electors of the county the question of whether the resolution or ordinance shall be approved or rejected.  The county governing authority shall establish the date of the election in compliance with Code Section 21-2-540, which shall be not less than 30 days after the call of the election, and shall notify the county election superintendent of its decision as to the date.  The election superintendent shall issue the call for the election and shall specify that the election shall be held on the date determined by the county governing authority.  The election superintendent shall cause the date and purpose of the election to be published once a week for two weeks immediately preceding the date thereof in the official organ of the county.  The ballot shall have written or printed thereon the following:
    2. Those persons desiring to vote in favor of the creation of a county police force shall vote "Yes," and those persons opposed to the creation of a county police force shall vote "No."  If more than one-half of the votes cast on the question are in favor of the creation of a county police force, then the county governing authority shall be authorized to create a county police force pursuant to the provisions of this chapter; otherwise, a county police force shall not be created.  If the resolution or ordinance is rejected by the qualified electors, the question of the creation of a county police force may not again be submitted to the voters of the county within 48 months immediately following the month in which such election was held.  The county election superintendent shall hold and conduct the election under the same rules and regulations as govern special elections, except as otherwise provided in paragraph (1) of this subsection.  He shall canvass the returns and declare and certify the result of the election to the Secretary of State.  The expense of any such election shall be borne by the county wherein the election was held.
  3. The provisions of subsection (b) shall not apply to any county which has created a county police force prior to January 1, 1992, which county police force remains in existence and operational.
  4. Any county police force created by a county governing authority between January 1, 1992, and February 25, 1992, shall be abolished no later than December 31, 1992, unless, prior to said latter date, a resolution or ordinance authorizing the creation of a county police force is adopted by the county governing authority and approved by the qualified electors of the county in a special election as provided in subsection (b) of this Code section.

    (Ga. L. 1909, p. 156, § 1; Civil Code 1910, § 849; Ga. L. 1914, p. 142, § 1; Code 1933, § 23-1401; Ga. L. 1992, p. 324, § 1.)

"( ) YES Shall the resolution or ordinance adopted by the governing authority of ( Name of County ) to create a ( ) NO county police force be approved?"

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1992, "February 25, 1992," was substituted for "the effective date of this Code section" in subsection (d).

Law reviews. - For survey article on local government law, see 59 Mercer L. Rev. 285 (2007) and 60 Mercer L. Rev. 263 (2008).

JUDICIAL DECISIONS

Applicability. - This chapter applies to all counties of the state. Eison v. Shirley, 165 Ga. 374 , 141 S.E. 295 (1927).

Effect on powers of sheriff. - Even when a county police force is established, the power and authority of the sheriff to enforce the law and preserve the peace are not legally diminished. Wolfe v. Huff, 232 Ga. 44 , 205 S.E.2d 254 (1974).

Power to direct owner from burning building. - Under the police power, a deputy sheriff is authorized to go upon private property and direct the owner to move back from a burning building, when the deputy has been made aware of the possibility of an explosion, and in the deputy's opinion the safety of a 21/2-year-old child was unnecessarily endangered because of the proximity to the burning structure. Veit v. State, 182 Ga. App. 753 , 357 S.E.2d 113 (1987).

County marshals acting as police force. - O.C.G.A. § 36-8-1(b)(1) referendum requirement was inapplicable to a county which created a county police force before January 1, 1992, which remained in existence and operational; however, in the context of a suit seeking injunctive and declaratory relief regarding whether the Fayette County, Georgia, Marshal's Department was a valid police force, fact issues remained, and summary judgment was improper, when affidavits claimed that county marshals did not operate as a county police force during the relevant time period. Johnson v. Fayette County, 280 Ga. 493 , 635 S.E.2d 35 (2006).

Cited in Cloud v. DeKalb County, 70 Ga. App. 777 , 29 S.E.2d 441 (1944); Levine v. Perry, 204 Ga. 323 , 49 S.E.2d 820 (1948).

OPINIONS OF THE ATTORNEY GENERAL

Power not delegable to grand jury. - County commissioners may use a grand jury to advise the commissioners on selection of police, but the commissioners may not delegate their authority to appoint police to a grand jury. 1960-61 Op. Att'y Gen. p. 79.

Qualifications of sheriff as police officer. - When a county police department is established and the law enforcement functions of the sheriff are transferred to such department, the sheriff or the sheriff's deputies may not become members of the police department so as to exercise the police power. 1970 Op. Att'y Gen. No. U70-28.

Creation of marshal's office did not establish police force. - County marshal's office is not equivalent to a county police force and, therefore, when a county did not establish a police force when the county created a marshal's office, the governing authority must comply with the requirements of subsection (b) of O.C.G.A. § 36-8-1 before creating a county police force. 1995 Op. Att'y Gen. No. U95-14.

RESEARCH REFERENCES

Am. Jur. 2d. - 70 Am. Jur. 2d, Sheriffs, Police and Constables, § 13.

C.J.S. - 20 C.J.S., Counties, § 164 et seq.

ALR. - Validity, construction, and application of enactments relating to requirement of residency within or near specified governmental unit as condition of continued employment for policemen or firemen, 4 A.L.R.4th 380.

36-8-2. Terms of office; removal; authority to abolish county police force.

The terms for which county police shall be elected or appointed shall be left to the discretion of the county governing authority. Such county police or any member thereof may be removed from office at any time, at the will of the county governing authority, with or without cause. A resolution or ordinance authorizing the creation of a county police force adopted by a county governing authority and approved by the qualified electors of the county in a special election as provided in subsection (b) of Code Section 36-8-1 shall not affect the power of the county governing authority to abolish a county police force at any time.

(Ga. L. 1909, p. 156, § 7; Civil Code 1910, § 855; Ga. L. 1914, p. 142, § 7; Code 1933, § 23-1407; Ga. L. 1992, p. 324, § 2.)

JUDICIAL DECISIONS

Validity of special law. - Even though a general law provides the manner for discharging county police by the county commissioners, a special law relating to this subject in a county is valid. Deason v. DeKalb County, 222 Ga. 63 , 148 S.E.2d 414 (1966).

Cited in Levine v. Perry, 204 Ga. 323 , 49 S.E.2d 820 (1948); Wolfe v. Huff, 232 Ga. 44 , 205 S.E.2d 254 (1974).

OPINIONS OF THE ATTORNEY GENERAL

Qualifications of sheriff as police officer. - When a county police department is established and the law enforcement functions of the sheriff are transferred to such department, the sheriff or the sheriff's deputies may not become members of the police department so as to exercise the police power. 1970 Op. Att'y Gen. No. U70-28.

RESEARCH REFERENCES

Am. Jur. 2d. - 70 Am. Jur. 2d, Sheriffs, Police, and Constables, § 17 et seq.

C.J.S. - 20 C.J.S., Counties, § 161 et seq.

ALR. - Sexual misconduct or irregularity as amounting to "conduct unbecoming an officer," justifying officer's demotion, removal or suspension from duty, 9 A.L.R.4th 614.

36-8-3. Bonds and actions thereon.

Upon the election of county police, each of them shall enter into a good and solvent bond, in a sum of not less than $1,000.00, to be fixed by the county governing authority, conditioned for the faithful performance of all their duties. Anyone injured or damaged by any one of such county police may bring an action upon his bond in his name or in the name of the county governing authority for his benefit or use.

(Ga. L. 1909, p. 156, § 6; Civil Code 1910, § 854; Ga. L. 1914, p. 142, § 6; Code 1933, § 23-1406.)

Law reviews. - For article on bond liability and righting the wrongs of Georgia local government officers, see 13 Ga. L. Rev. 747 (1979).

JUDICIAL DECISIONS

No change in general law. - Nothing in this chapter (especially Ga. L. 1914, p. 142, § 6 (see now O.C.G.A. § 36-8-3 )), which authorizes the appointment of county police officers, insofar as the statute may undertake to fix the liability of the sureties upon a county officer's bond, changes the general law as contained in former Civil Code 1910, § 291 (see now O.C.G.A. § 45-4-24 ). Hodge v. United States Fid. & Guar. Co., 42 Ga. App. 84 , 155 S.E. 95 (1930).

Bond refers only to official duties. - Bond required of a county police officer, wherein it is conditioned for the faithful performance by the officer of the officer's duties, has reference only to those duties which are incident to the office of county police officer, and not to those general duties incumbent upon every person as a member of society. Hodge v. United States Fid. & Guar. Co., 42 Ga. App. 84 , 155 S.E. 95 (1930).

Cited in Levine v. Perry, 204 Ga. 323 , 49 S.E.2d 820 (1948).

RESEARCH REFERENCES

Am. Jur. 2d. - 70 Am. Jur. 2d, Sheriffs, Police, and Constables, § 15.

C.J.S. - 20 C.J.S., Counties, § 160.

ALR. - Right of individual to maintain action on bond of peace officer, 19 A.L.R. 73 .

Liability on bond of sheriff or other peace officer for unlawful search, 62 A.L.R. 855 .

36-8-4. Establishment of salaries; payment; tax levy.

The county governing authority shall fix the salaries of the county police, which salaries, together with the expense of maintaining the police, shall be paid out of the county treasury. The county governing authority is authorized to levy such tax as may be necessary to pay such salaries and expenses over and above the sums for which it is otherwise authorized to levy a tax.

(Ga. L. 1909, p. 156, § 2; Civil Code 1910, § 850; Ga. L. 1914, p. 142, § 2; Code 1933, § 23-1402.)

Cross references. - Authority of counties to exercise power of taxation, Ga. Const. 1983, Art. IX, Sec. IV, Paras. I-III.

JUDICIAL DECISIONS

Commission from still destruction unauthorized. - The ordinary (now judge of the probate court) is without authority to appoint a police officer under an agreement by which the police officer is to be paid for work done in enforcing the prohibition law by destroying stills, and for which the police officer is to be paid so much for each still destroyed, to be paid out of the funds derived by fines and forfeitures from the enforcement of the prohibition law. If such work or service is rendered under a contract which the ordinary (now judge of the probate court) is not authorized to make, no implied obligation arises on the part of the county to pay for such services, even though the county receives the benefit. Eison v. Shirley, 165 Ga. 374 , 141 S.E. 295 (1927).

Receipt of salary no bar to action for share of fees. - Fact that officer making seizure of an automobile engaged in the illegal transportation of intoxicating liquors received a salary does not preclude the officer from receiving the officer's part of fees provided by statute for officers responsible for confiscation of such automobiles. Cloud v. DeKalb County, 70 Ga. App. 777 , 29 S.E.2d 441 (1944).

Cited in Levine v. Perry, 204 Ga. 323 , 49 S.E.2d 820 (1948).

RESEARCH REFERENCES

Am. Jur. 2d. - 70 Am. Jur. 2d, Sheriffs, Police, and Constables, § 41 et seq.

36-8-5. Powers of county police generally.

Under the direction and control of the county governing authority, the county police shall have:

  1. The same power to make arrests and to execute and return criminal warrants and processes in the county of their election or appointment only, as sheriffs have; and
  2. All the powers of sheriffs as peace officers in the county of their election or appointment.

    (Ga. L. 1909, p. 156, § 3; Civil Code 1910, § 851; Ga. L. 1914, p. 142, § 3; Code 1933, § 23-1403; Ga. L. 1961, p. 217, § 1.)

JUDICIAL DECISIONS

Grant of power to Jekyll Island-State Park Authority not exclusive. - This section does not give Jekyll Island-State Park Authority exclusive police power, including law enforcement on Jekyll Island nor does the statute prohibit Glynn County police from exercising the powers granted the county officers by this section. Ferguson v. Leggett, 226 Ga. 333 , 174 S.E.2d 913 (1970).

Duties and powers of deputy sheriff. - Office of sheriff carries with the office the duty to preserve the peace and protect the lives, persons, property, health, and morals of the people, and a deputy sheriff is an agent of the sheriff and in effecting the proper discharge of the deputy's duties is empowered with the same duties and powers. Veit v. State, 182 Ga. App. 753 , 357 S.E.2d 113 (1987).

Warrantless arrest outside territorial limits. - Deputy sheriff had authority to make a warrantless arrest beyond the territorial limits of the deputy's own county. Watkins v. State, 207 Ga. App. 766 , 430 S.E.2d 105 (1993), overruled on other grounds, West v. Waters, 272 Ga. 591 , 533 S.E.2d 88 (2000).

Effect on powers of sheriff. - Even when a county police force is established, the power and authority of the sheriff to enforce the law and preserve the peace is not legally diminished. Wolfe v. Huff, 232 Ga. 44 , 205 S.E.2d 254 (1974).

Fact that officers are outside jurisdiction does not make officers private citizens. - Fact that state officers making a warrantless search were, at the time of the search, outside of the officers' state-granted jurisdiction does not make such officers, thereby, merely private citizens so as to enable the federal government to freely use anything that was discovered by the state officers as evidence in a federal prosecution which would otherwise have been inadmissible. United States v. Hogue, 283 F. Supp. 846 (N.D. Ga. 1968).

Cited in Stone v. National Sur. Corp., 57 Ga. App. 427 , 195 S.E. 905 (1938); McCarty v. State, 152 Ga. App. 726 , 263 S.E.2d 700 (1979).

OPINIONS OF THE ATTORNEY GENERAL

Powers of arrest. - Arresting powers of county police are confined to the county of appointment or election. 1960-61 Op. Att'y Gen. p. 62.

Power to arrest on state property. - Within the limits of their respective territorial or statutory jurisdiction, local law enforcement authorities may arrest offenders upon state property for violations of state laws, including property under the jurisdiction of the Georgia Building Authority Police. 1992 Op. Att'y Gen. No. 92-6.

Power to return prisoner from outside county. - County police under former Code 1933, § 23-1403 (see now O.C.G.A. § 36-8-5 ) were authorized to go from the county of appointment to another county within the limits of the state to receive a prisoner who was under arrest and detention and return such prisoner to the county of appointment, according to former Code 1933, § 27-209 (see now O.C.G.A. § 17-4-25 ). 1958-59 Op. Att'y Gen. p. 73.

Misdemeanor cases. - County police officer has the same authority as the sheriff in those cases once the defendant is arrested under a warrant charging a misdemeanor, so long as the prisoner is in the police officer's custody; if the county police officer turns the prisoner over to the sheriff without bail, it would thereafter be the responsibility of the sheriff to accept bail. 1962 Op. Att'y Gen. p. 63.

RESEARCH REFERENCES

Am. Jur. 2d. - 70 Am. Jur. 2d, Sheriffs, Police, and Constables, § 31 et seq.

C.J.S. - 20 C.J.S., Counties, §§ 196, 207.

ALR. - Degree of force that may be employed in arresting one charged with a misdemeanor, 42 A.L.R. 1200 .

36-8-6. Inspection of and reports on roads and bridges.

Reserved. Repealed by Ga. L. 2005, p. 529, § 1/HB 557, effective May 1, 2005.

Editor's notes. - This Code section was based on Ga. L. 1909, p. 156, § 4; Civil Code 1910, § 852; Ga. L. 1914, p. 142, § 4; Code 1933, § 23-1404.

Ga. L. 2012, p. 775, § 36/HB 942, reserved the designation of this Code section, effective July 1, 2012.

36-8-7. Rules and regulations for conduct, management, and control of county police.

Upon the election or appointment of county police, the county governing authority shall make rules and regulations for the conduct, management, and control of such county police and shall, from time to time, enlarge, modify, or change such rules and regulations as its discretion may dictate.

(Ga. L. 1909, p. 156, § 5; Civil Code 1910, § 853; Ga. L. 1914, p. 142, § 5; Code 1933, § 23-1405.)

JUDICIAL DECISIONS

Cited in Levine v. Perry, 204 Ga. 323 , 49 S.E.2d 820 (1948); Wolfe v. Huff, 232 Ga. 44 , 205 S.E.2d 254 (1974).

RESEARCH REFERENCES

ALR. - Sexual misconduct or irregularity as amounting to "conduct unbecoming an officer," justifying officer's demotion or removal or suspension from duty, 9 A.L.R.4th 614.

CHAPTER 9 COUNTY PROPERTY GENERALLY

Sec.

Cross references. - Exercise of power of eminent domain by counties for purposes of construction and operation of watershed projects, flood-control projects, and other projects, § 22-3-100 et seq.

36-9-1. Vesting in county of title under conveyances for use of county.

All deeds, conveyances, grants, or other instruments which have been or may be made to any officer or person for the use and benefit of any county shall vest in the county the title as fully as if made to the county by name.

(Orig. Code 1863, § 466; Code 1868, § 528; Code 1873, § 494; Code 1882, § 494; Civil Code 1895, § 347; Civil Code 1910, § 395; Code 1933, § 91-601.)

JUDICIAL DECISIONS

Titling of automobiles. - Trial court properly granted summary judgment to the board of county commissioners after a wrongful death action was filed against the county arising out of a collision involving the ambulance the employee was driving on an emergency call and the decedent's vehicle; even if the ambulance was titled in the name of the board of county commissioners, the law regarded the ambulance as being titled in the name of the county and the county, not the board of county commissioners, was the proper defendant when liability was based on respondeat superior. Smith v. Bulloch County Bd. of Comm'rs, 261 Ga. App. 667 , 583 S.E.2d 475 (2003).

Cited in McElmurray v. Richmond County, 223 Ga. 47 , 153 S.E.2d 427 (1967).

OPINIONS OF THE ATTORNEY GENERAL

Property of county boards of education. - Former Code 1933, §§ 91-601 and 91-102 et seq. (see now O.C.G.A. §§ 36-9-1 and 50-16-1 et seq.) were not applicable to property belonging to county boards of education. 1958-59 Op. Att'y Gen. p. 107.

RESEARCH REFERENCES

Am. Jur. 2d. - 56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, § 470.

C.J.S. - 20 C.J.S., Counties, § 219.

36-9-2. Control and disposal of county property generally.

The county governing authority shall have the control of all property belonging to the county and may, by order entered on its minutes, direct the disposal of any real property which may lawfully be disposed of and make and execute good and sufficient title thereof on behalf of the county.

(Orig. Code 1863, § 467; Code 1868, § 529; Code 1873, § 495; Code 1882, § 495; Civil Code 1895, § 348; Civil Code 1910, § 396; Code 1933, § 91-602; Ga. L. 1935, p. 110, § 1.)

JUDICIAL DECISIONS

No disposal without legislative authority. - As a general proposition of law a county cannot, without legislative authority, dispose of real estate owned by the county. Head v. Lee, 203 Ga. 191 , 45 S.E.2d 666 (1947).

Power not necessarily exclusive. - This section does not vest in the ordinary (now judge of the probate court) exclusive power of sale of the county's property when the General Assembly confers such powers upon county commissioners of a particular county. Dyer v. Martin, 132 Ga. 445 , 64 S.E. 475 (1909) (decided prior to revision of section by Ga. L. 1935, p. 110, § 1.)

Authority for sale. - Proper resolution, duly recorded, is the authority by which the county's title for land may be divested by deed. Head v. Lee, 203 Ga. 191 , 45 S.E.2d 666 (1947).

In the absence of a recorded order authorizing the conveyance in question, or subsequent ratification of the deed, the purported conveyance by the county did not pass the county's title for the land therein described. Head v. Lee, 203 Ga. 191 , 45 S.E.2d 666 (1947).

Failure to comply with O.C.G.A. § 36-9-2 not a bar to bona fide purchaser's title. - Although a county failed to comply with O.C.G.A. § 36-9-2 by recording a transfer in the minutes when the county conveyed the county's interest in property, which the county had formerly acquired by eminent domain, to the county development authority, a subsequent purchaser was a bona fide purchaser without notice of this irregularity under O.C.G.A. § 23-1-20 , so that the county's title was superior to that of the condemnee's heirs, who sought to repurchase the property under O.C.G.A. § 36-9-3(g)(3)(B). Darling Int'l, Inc. v. Carter, 294 Ga. 455 , 754 S.E.2d 347 (2014).

When order not on minutes. - When county commissioners authorize a conveyance of land brought in by the county at a tax sale, but fail to put the order of authorization on the minutes, as required by this section, it is competent for the commissioners at a subsequent meeting of the board to ratify the deed to the purchaser from the county, and to cause the authorization to be put on the minutes. Braswell v. Palmer, 191 Ga. 262 , 11 S.E.2d 889 (1940).

Tax sale not authorized. - Fact that a purported sale of county-owned property was by tax sale did not operate to negate or otherwise nullify the requirements of O.C.G.A. § 36-9-2 . West v. Fulton County, 267 Ga. 456 , 479 S.E.2d 722 (1997).

County commissioner is a public officer occupying a fiduciary relationship requiring the commissioner to exercise the utmost good faith, fidelity, and integrity in dealing with county property as a trustee and servant of the people, which the commissioner may not sell without legislative sanction unless the property's use shall have been abandoned by or become unserviceable to the county. If county property be sold by the commissioner, the commissioner shall obtain the most advantageous price. Timbs v. Straub, 216 Ga. 451 , 117 S.E.2d 462 (1960).

County property which has become unserviceable may be sold by order of the county commissioners at private sale. Malcom v. Fulton County, 209 Ga. 392 , 73 S.E.2d 173 (1952).

Property becomes unserviceable, within the meaning of this section, when the property cannot be beneficially or advantageously used under all circumstances for county purposes. Malcom v. Fulton County, 209 Ga. 392 , 73 S.E.2d 173 (1952).

Denial or change of use of property. - County board of commissioners has right to deny use of any public property if the property is used in a wasteful or ineffective manner. Wheeler v. DeKalb County, 249 Ga. 678 , 292 S.E.2d 855 (1982).

When public property is a building constructed from funds of a designated bond issue for a particular use, the board of commissioners may change the intended use of the building when circumstances which gave rise to the bond issue change so that the building constructed from those funds is no longer needed for that purpose, and the property's continued use for that purpose would be a waste of county resources. Wheeler v. DeKalb County, 249 Ga. 678 , 292 S.E.2d 855 (1982).

Sheriff had power to modify county-owned property within exclusive use. - County sheriff had the independent authority to repaint and remark county-owned sheriff's vehicles assigned to the sheriff's exclusive use, but lacked the authority to modify portions of a county-owned building in which the sheriff's office and jail were housed, as the facility was shared with the superior, state, and magistrate courts of Clayton County, as well as the clerks of those courts, the solicitor general, and the district attorney, and hence, not under the sheriff's exclusive use. As a result, subject to compliance with O.C.G.A. § 40-8-91 , summary judgment in favor of the county as to the extent of the sheriff's authority was reversed as to the former, but affirmed as to the latter. Hill v. Clayton County Bd. of Comm'rs, 283 Ga. App. 15 , 640 S.E.2d 638 (2006), overruled on other grounds, Mayor & Aldermen of Savannah v. Batson-Cook Co., 291 Ga. 114 , 728 S.E.2d 189 (Ga. 2012).

Sale of undivided interest. - This section does not warrant the sale of an undivided one-fifth of a courthouse and lot in actual daily use for county purposes. Hunnicutt v. City of Atlanta, 104 Ga. 1 , 30 S.E. 500 (1898) (decided prior to revision of section by Ga. L. 1935, p. 110, § 1.)

Lease for ninety-nine years. - Commissioners cannot lease county property in such manner as to put the property out of the power of the county authorities for 99 years to devote the property to the exclusive use of the county. Equity will enjoin use under such a lease. Town of Decatur v. DeKalb County, 130 Ga. 483 , 61 S.E. 23 (1908) (decided prior to revision of section by Ga. L. 1935, p. 110, § 1).

Applicability to lease. - When a lease of county property ran on a month-to-month basis, giving the lessee only a usufruct with no estate passing out of the county, this section was inapplicable since there was no conveyance of county property. Overlin v. Boyd, 598 F.2d 423 (5th Cir. 1979).

Nature of duty. - When a local law gives a board of commissioners exclusive jurisdiction in governing and controlling county property, the commissioners have the duty to maintain control over county property, but this duty coexists with the duty to exercise that control in the manner the commissioners deem most beneficial to the county. Smith v. Board of Comm'rs, 244 Ga. 133 , 259 S.E.2d 74 (1979).

Usufruct of airport. - Contract by a county granting a usufruct of an airport to a private corporation for a period of years is not a disposition of county property requiring the antecedent resolution of county authorities. Southern Airways Co. v. DeKalb County, 102 Ga. App. 850 , 118 S.E.2d 234 (1960).

Power of commissioners. - Those county officers who by virtue of their office have charge of the county affairs may, by proper order to be entered on their minutes, direct the disposal of and execute good and sufficient title to lands belonging to the county which are not necessary for public use. Head v. Lee, 203 Ga. 191 , 45 S.E.2d 666 (1947).

Ordinary (now judge of the probate court) had power to lease directly to an individual certain realty for use in operating a filling station as it was then being and had been used for 13 years. Such a lease, having been so executed by the ordinary (now county governing authority) was not void on the ground that the lease was not authorized by law, or that the interest thereby created extended beyond the term of the ordinary (now judge of the probate court) then in office, or that the lease amounted to a commercial transaction in which the county was not authorized by law to engage. Black v. Forsyth County, 193 Ga. 571 , 19 S.E.2d 297 (1942).

Signature on deed. - If the county commissioners authorize the sale of county land, the deed may lawfully be signed by the chair in the name of the board. Braswell v. Palmer, 191 Ga. 262 , 11 S.E.2d 889 (1940).

Statute of limitation. - As the object of O.C.G.A. § 36-9-2 is to give information to the public, the statute of limitation in O.C.G.A. § 9-3-22 was inapplicable because the action arose from a claim that a public officer had failed to perform the officer's official duty. Dade County v. Miami Land Co., 253 Ga. 776 , 325 S.E.2d 750 (1985).

Cited in Atlanta Title & Trust Co. v. Tidwell, 173 Ga. 499 , 160 S.E. 620 (1931); Turner v. Johnston, 183 Ga. 176 , 187 S.E. 864 (1936); Mayor of Fort Valley v. Levin, 183 Ga. 837 , 190 S.E. 14 (1937); McDonald v. Marshall, 185 Ga. 438 , 195 S.E. 571 (1938); Clayton v. Taylor, 223 Ga. 346 , 155 S.E.2d 387 (1967); Shoemaker v. Department of Transp., 240 Ga. 573 , 241 S.E.2d 820 (1978); Building Auth. v. State, 253 Ga. 242 , 321 S.E.2d 97 (1984).

OPINIONS OF THE ATTORNEY GENERAL

Ability of county commissioners to lease county property. - See 1977 Op. Att'y Gen. No. U77-3.

Permit to build sewer across street. - County commissioners may grant to a private corporation a permit to construct a sewer across a street dedicated to the county. 1970 Op. Att'y Gen. No. U70-36.

RESEARCH REFERENCES

Am. Jur. 2d. - 56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, § 485 et seq.

C.J.S. - 20 C.J.S., Counties, § 223 et seq.

36-9-2.1. Demolition of certain county courthouses.

  1. Notwithstanding the provisions of Code Section 36-9-2, a county governing authority shall not have the authority to demolish or to provide for the demolition of a county courthouse which was constructed prior to January 1, 1905, and which is listed in the National Register of Historic Places unless the question of whether or not to demolish the courthouse is submitted to the qualified voters of the county for approval or rejection in a referendum called for such purpose.
  2. The ballot in the referendum required by subsection (a) of this Code section shall have written or printed thereon the words:
  3. A referendum held pursuant to this Code section shall be conducted only in conjunction with a general primary or general election and shall be conducted in accordance with the provisions of Chapter 2 of Title 21, the "Georgia Election Code." (Code 1981, § 36-9-2.1 , enacted by Ga. L. 1990, p. 133, § 1.)

"( ) YES Shall the demolition of the ( Name of County ) courthouse, as proposed by the governing authority of ( Name of County ), be approved?" ( ) NO

36-9-3. Sale or disposition of county real property generally; right of certain counties to make private sale; right of county to negotiate and consummate private sales of recreational set-asides.

    1. Except as otherwise provided in this Code section, the governing authority of any county disposing of any real property of such county shall make all such sales to the highest responsible bidder, either by sealed bids or by auction after due notice has been given.  Any such county shall have the right to reject any and all bids or cancel any proposed sale.  The governing authority of the county shall cause notice to be published once in the official legal organ of the county or in a newspaper of general circulation in the community, not less than 15 days nor more than 60 days preceding the day of the auction or, if the sale is by sealed bids, preceding the last day for the receipt of proposals. The legal notice shall include a legal description of the property to be sold.  If the sale is by sealed bids, the notice shall also contain an invitation for proposals and shall state the conditions of the proposed sale, the address at which bid blanks and other written materials connected with the proposed sale may be obtained, and the date, time, and place for the opening of bids.  If the sale is by auction, the notice shall also contain the conditions of the proposed sale and shall state the date, time, and place of the proposed sale.  Bids received in connection with a sale by sealed bidding shall be opened in public at the time and place stated in the legal notice.  A tabulation of all bids received shall be available for public inspection following the opening of all bids. All such bids shall be retained and kept available for public inspection for a period of not less than 60 days from the date on which such bids are opened.
      1. Counties may retain the services of a Georgia licensed real estate broker to assist in the disposition of surplus real property; said brokerage services shall be procured by request for proposals in response to an issued solicitation. The proposal shall include the minimum stated broker qualifications and experience.
      2. In the event a county does retain the services of a qualified and experienced Georgia licensed real estate broker to assist in the disposition of surplus real property, the broker so retained shall:
        1. Represent the county and comply with the requirements of this Code section, including, but not limited to, issuing a call or request for sealed bids from the public and causing notice to be published once in the official legal organ of the county not less than 15 days nor more than 60 days preceding the day of the auction or, if the sale is by sealed bids, preceding the last day for the receipt of proposals. The legal notice shall include a legal description of the real property to be sold. The notice shall also contain a request for proposals and shall state the conditions of the proposed sale, the address at which bid blanks and other written materials connected with the proposed sale may be obtained, and the date, time, and place for the opening of bids;
        2. Actively market the disposition of the real property;
        3. Comply with all federal, state, and local laws;
        4. Create a website which posts: the request for sealed bids; questions submitted by interested parties; responses to submitted questions as prepared by the county; dates the real property will be made available for public inspection; public information regarding the property; and other related communication and marketing information;
        5. Immediately forward the sealed bids to the governing authority of the county, which shall open such bids at the specified date, time, and place;
        6. Only serve in the capacity of a broker engaged by a seller as provided for in Code Section 10-6A-5. A real estate broker representing a county shall be prohibited from working with or aiding a prospective buyer in connection with the disposition of real property for which the real estate broker was contracted; and
        7. Agree to accept the agreed upon sales commission based on the highest responsive bid received as so adjudicated by the governing authority of the county, in its sole discretion.
      3. In the event the county decides to reject all bids and not award the sale to any of the bidders, the broker shall agree to accept the minimum payment in lieu of the commission as so agreed upon by the parties in an engagement contract.
    3. This subsection shall not apply to:
      1. Redemption of property held by any county under a tax deed; the granting of easements and rights of way; the sale, conveyance, or transfer of road rights of way; the sale, transfer, or conveyance to any other body politic; and any sale, transfer, or conveyance to a nonprofit corporation in order to effectuate a lease-purchase transaction pursuant to Code Section 36-60-13;
      2. Any option to sell or dispose of any real property belonging to any county of this state if that option was granted by said county prior to March 17, 1959;
      3. The sale of any real property belonging to any county in this state where the proper governing authority of the county advertised the property for ten consecutive days in the newspaper in which the sheriff's advertisements for the county are published, and where the sale was awarded thereafter to the highest and best bidder, in accordance with the terms of the advertisement, and an option given in accordance with the sale for the purchaser who had deposited a part of the purchase price to pay the balance within 365 days from the date of the execution of the option, where the sale was awarded and the option granted prior to May 1, 1961; or
      4. The exchange of real property belonging to any county in this state for other real property where the property so acquired by exchange shall be of equal or greater value than the property previously belonging to the county; provided, however, that within six weeks preceding the closing of any such proposed exchange of real property, a notice of the proposed exchange of real property shall be published in the official organ of the county once a week for four weeks. The value of both the property belonging to the county and that to be acquired through the exchange shall be determined by appraisals and the value so determined shall be approved by the proper authorities of said county.
  2. In any county of the state having a population of 550,000 or more according to the United States decennial census of 1980 or any future such census, where the governing authority thereof has established or constituted an advisory commission, board, or authority to study and make recommendations for the future development, use, and sale of county owned property, the governing authority of such county shall have the right, with the advice and approval of such commission, board, or authority, to negotiate and consummate a private sale of any county owned property, notwithstanding the provisions of subsection (a) of this Code section. Where there is no commission, board, or authority established in such county for the particular class or type of property, the governing authority of such county shall nevertheless have the right to negotiate a private sale of any county owned property with the advice and approval of the grand jury.
    1. Any county governing authority and the governing authority of any consolidated government may sell, grant, lease, rent, convey, or transfer any real property owned by the county or consolidated government, including real property dedicated or used as a park or recreation area, to the local board of education or other public educational institution for use as a site for a public school or other educational purpose. Any county governing authority and the governing authority of any consolidated government may sell, grant, convey, or transfer to the local board of education or other public educational institution licenses, easements, or lesser interests in such real property owned by the county or the consolidated government, including real property dedicated or used as a park or recreation area for such purposes. A county governing authority and the governing authority of any consolidated government are authorized to exchange real property, including real property dedicated or used as a park or recreation area, with the local board of education or other public educational institution for other real property for such purposes. Such a sale, grant, lease, rental, conveyance, or transfer may be made by negotiation between the governing authority and local board of education or other public educational institution without advertisement, bidding, auction, notice, publication, or referendum. This subsection shall not be construed to abrogate or impair any reverter provision or other condition of a sale, grant, conveyance, or transfer of real property to a county governing authority or governing authority of a consolidated government.
    2. Prior to executing any sale, grant, lease, rental, conveyance, or transfer pursuant to the provisions of paragraph (1) of this subsection, the governing authority proposing such action shall hold a public hearing in the immediate vicinity of the affected property. Such hearing shall be advertised by posting conspicuous notice at the place of the hearing and at the affected property. The governing authority shall have at least one representative at the public hearing to receive the comments and concerns expressed and to report such comments and concerns to the governing authority.
    3. After the public hearing provided in paragraph (2) of this subsection but before the action proposed under paragraph (1) of this subsection, the governing authority proposing the action shall hold at least one meeting to discuss the transaction in light of the comments and concerns expressed at the public hearing.
  4. Notwithstanding subsection (a) of this Code section, where the governing authority has, prior to March 1, 1987, approved and recommended the sale or disposal of county owned real property containing an area of less than 20,000 square feet, the governing authority shall have the right to negotiate and consummate a private sale of such property, provided such sale is for at least the fair market value of the property. Notice of the intention of the county governing authority to make a private sale shall be published once a week for four weeks in the official organ of the county.
  5. Notwithstanding subsection (a) of this Code section, where the governing authority has prescribed a system of recreational set-asides where developers are required to set aside a certain amount of property in each new subdivision for recreational purposes and where those recreational set-asides have been conveyed to the county governing authority at no cost to the county, the county governing authority shall have the right to negotiate and consummate a private sale of such property to a homeowners' association representing the majority of property owners in the subdivision where the recreational set-aside property is located, provided that the use of the property shall be for recreational purposes for a period of not less than five years from the date of the sale. Notice of intention of the county governing authority to make a private sale shall be published once a week for four weeks in the official organ of the county.
  6. Notwithstanding any provision of this Code section to the contrary or any other provision of law or ordinance to the contrary, whenever any county determines that the establishment of a facility of the state or one of its authorities or other instrumentalities would be of benefit to the county, by way of providing activities in an area in need of redevelopment, by continuing or enhancing local employment opportunities, or by other means or in other ways, such county may sell or grant any of its real or personal property to the state or to any of its authorities or instrumentalities and, further, may sell or grant such lesser interests, rental agreements, licenses, easements, and other dispositions as it may determine necessary or convenient.  These powers shall be cumulative of other powers and shall not be deemed to limit their exercise in any way.
    1. As used in this subsection, the term "lake" means an impoundment of water in which at least 1,000 acres of land were to be submerged.
    2. Notwithstanding any provision of this Code section or any other law to the contrary, whenever any county has acquired property for the creation or development of a lake, including but not limited to property the acquisition of which was reasonably necessary or incidental to the creation or development of that lake, and the governing authority of such county thereafter determines that all of the property is no longer needed because of a decision by the county to not construct the lake, that county is authorized to dispose of such property or interest therein as provided in this subsection.
      1. In disposing of property, as authorized under this subsection, the county shall notify the owner of such property at the time of its acquisition or, if the tract from which the county acquired its property has been subsequently sold, shall notify the owner of abutting land holding title through the owner from whom the county acquired its property. Any notice required pursuant to this subparagraph shall be in writing and delivered to the appropriate owner or by publication if such owner's address is unknown.  Such owner shall have the right to acquire such property, as provided in this subsection.
      2. If the original owner of the property at the time of the county's acquisition of such property is deceased, the original owner's spouse, child, or grandchild shall have the first opportunity to purchase the property which the county is disposing of pursuant to this subsection; provided, however, the owner's child shall have such right only if the owner's spouse is deceased or has waived his or her right to purchase the property, and the owner's grandchild shall have such right only if both the owner's spouse and child  either are deceased or have waived their right to buy the property.  If the original owner's spouse is deceased and the original owner had more than one child or grandchild and such children or grandchildren have a right to purchase the property pursuant to this paragraph, then such children or grandchildren shall be entitled to purchase the property as tenants in common. The county shall place a notice of a sale proposed pursuant to this subparagraph once in the county legal organ.  If after 45 days from the date of such publication the original owner's spouse, child, or grandchild has not come forward, or if the tract from which the county acquired its property has been subsequently sold, the county shall notify the owner of abutting land holding title through the owner from whom the county acquired its property as provided in subparagraph (A) of this paragraph.  Publication pursuant to this subparagraph, if necessary, shall be in a newspaper of general circulation in the county where the property is located.
    4. When an entire parcel acquired by the county or any interest therein is being disposed of, it may be acquired under the right created in paragraph (3) of this subsection at such price as may be agreed upon, but in no event less than the price paid for its acquisition.  When only remnants or portions of the original acquisition are being disposed of, they may be acquired for the market value thereof at the time the county decides the property is no longer needed.
    5. If the right of acquisition is not exercised within 60 days after due notice, the county shall proceed to sell such property as provided in subsection (a) of this Code section. The county shall thereupon have the right to reject any and all bids, in its discretion, to readvertise, or to abandon the sale.
  8. Notwithstanding any provision of this Code section or of any other law, ordinance, or resolution to the contrary, a county governing authority is authorized to sell and convey parcels of small or narrow strips of land, so shaped or so small as to be incapable of being used independently as zoned or under applicable subdivision or other development ordinances or land use plans, or as streets, whether owned in fee or used by easement, to abutting property owners where such sales and conveyances facilitate the enjoyment of the highest and best use of the abutting owner's property without first submitting the sale or conveyance to the process of an auction or the solicitation of sealed bids; provided, however, that each abutting property owner shall be notified of the availability of the property and shall have the opportunity to purchase said property under such terms and conditions as set out by ordinance.
    1. As used in this subsection, the terms "conservation easement" and "holder" shall have the meanings as set forth in Code Section 44-10-2.
    2. Notwithstanding any provision of this Code section or of any other law, ordinance, or resolution to the contrary, whenever the governing authority of any county determines that the establishment of a conservation easement would be of benefit to the county and to its citizens by way of retaining or protecting natural, scenic, or open-space values of real property; assuring the availability of the property for agricultural, forest, recreational, or open-space use; protecting natural resources; maintaining or enhancing air or water quality; or preserving the historical, architectural, archeological, or cultural aspects of the property, such governing authority may sell or grant to any holder a conservation easement over any of its real property, including but not limited to any of its real property set aside for use as a park. These powers shall be cumulative of other powers and shall not be deemed to limit their exercise in any way; provided, however, that a conservation easement shall not be created, granted, or otherwise conveyed for the purpose of preventing, frustrating, or interfering with the exercise of the power of eminent domain by any public utility or other entity authorized to exercise the power of eminent domain.

      (Code 1933, § 91-804.1, enacted by Ga. L. 1959, p. 325, § 1; Ga. L. 1960, p. 1124, § 1; Ga. L. 1961, p. 195, § 1; Ga. L. 1962, p. 65, § 1; Ga. L. 1965, p. 239, § 1; Ga. L. 1971, p. 678, § 1; Ga. L. 1972, p. 560, § 1; Ga. L. 1981, p. 539, § 1; Ga. L. 1982, p. 2107, § 33; Ga. L. 1983, p. 3, § 27; Ga. L. 1987, p. 3, § 36; Ga. L. 1987, p. 1100, § 1; Ga. L. 1988, p. 676, § 1; Ga. L. 1990, p. 877, § 1; Ga. L. 1992, p. 1348, § 1; Ga. L. 1992, p. 1352, §§ 1, 2; Ga. L. 1994, p. 237, § 2; Ga. L. 1998, p. 1036, § 1; Ga. L. 2010, p. 746, § 1/HB 703; Ga. L. 2010, p. 1078, § 1/SB 390; Ga. L. 2018, p. 255, § 1/SB 397.)

The 2018 amendment, effective July 1, 2018, added paragraph (a)(2); and redesignated former paragraph (a)(2) as present paragraph (a)(3).

Cross references. - Disposition of property no longer needed for public road purposes, see T. 32, C. 7.

Code Commission notes. - Ga. L. 1992, p. 1348, § 1, and Ga. L. 1992, p. 1352, § 2, both added a new subsection (g). Pursuant to Code Section 28-9-5, in 1992, the subsection as added by Ga. L. 1992, p. 1352, § 2 was redesignated as subsection (h).

JUDICIAL DECISIONS

Application. - Trial court properly granted summary judgment to a county and purchaser because the prior owner of the property condemned by the county never had a binding contract with the county to re-purchase a remnant, unused portion and there was no conflict between O.C.G.A. §§ 32-7-3 , 32-7-4 , and 36-9-3(h) and the county's code amendment. Hubert Props., LLP v. Cobb County, 318 Ga. App. 321 , 733 S.E.2d 373 (2012).

Heirs unable to repurchase because bona fide purchaser had purchased. - Although a county failed to comply with O.C.G.A. § 36-9-2 by recording a transfer in the minutes when the county conveyed the county's interest in property, which the county had formerly acquired by eminent domain, to the county development authority, a subsequent purchaser was a bona fide purchaser without notice of this irregularity under O.C.G.A. § 23-1-20 , so that the county's title was superior to that of the condemnee's heirs, who sought to repurchase the property under O.C.G.A. § 36-9-3(g)(3)(B). Darling Int'l, Inc. v. Carter, 294 Ga. 455 , 754 S.E.2d 347 (2014).

Cited in John Doe v. Roe, 234 Ga. 127 , 214 S.E.2d 880 (1975).

OPINIONS OF THE ATTORNEY GENERAL

Effect of local constitutional amendment. - A local amendment which allows resale of county real estate upon such terms and conditions as the governing authority of that county shall deem proper supersedes this section. 1976 Op. Att'y Gen. No. U76-52.

County need not follow procedures set forth in this section before conveying unserviceable county property to body corporate and politic. 1980 Op. Att'y Gen. No. U80-43.

Lease of property for school purposes. - Counties and school districts have authority under subsection (c) of O.C.G.A. § 36-9-3 and O.C.G.A. § 20-2-520 to enter into intergovernmental contracts in which the county leases real property to the school board for use as a site for a public school or other educational purpose. 1998 Op. Att'y Gen. No. 98-13.

Applicability to board of education. - This section has no application to sales of property, the title to which is vested in a county board of education. 1958-59 Op. Att'y Gen. p. 107.

Sale of property by county boards of education. - County board of education may convey property no longer needed for school purposes by a private sale. 1982 Op. Att'y Gen. No. 82-31.

Since O.C.G.A. § 20-2-520 vests title to school property in the county boards of education, as opposed to the counties themselves, public sale requirements of O.C.G.A. § 36-9-3 , which apply only to county property, do not govern disposition of such property. 1982 Op. Att'y Gen. No. 82-31.

RESEARCH REFERENCES

ALR. - Power of governing body of county to dispose of county real estate in absence of specific statutory authority, 21 A.L.R.2d 722.

36-9-4. Maintenance of insurance on books of laws and court reports.

The officer having charge of the financial affairs of each county shall keep insured, at a fair valuation against loss by fire, all volumes of the public laws and decisions of the Supreme Court and the Court of Appeals which have been furnished to the judge of the probate court and the clerk of the superior court of his county. Such policies of insurance shall be in the name of the county. The premiums therefor shall be paid out of the funds of the county. In the event of any loss or damage by fire, the county governing authority shall proceed to collect the amount of loss on the policy; when so collected, the proceeds thereof shall be used in supplying new books of the kind lost or injured, insofar as the proceeds may be sufficient to do so.

(Ga. L. 1882-83, p. 132, §§ 1, 2; Civil Code 1895, §§ 349, 350; Civil Code 1910, §§ 397, 398; Code 1933, §§ 91-603, 91-604.)

Cross references. - Property insurance, T. 33, C. 32.

RESEARCH REFERENCES

Am. Jur. 2d. - 56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, § 484.

36-9-5. Erection, repair, and furnishing of county buildings; storage of county documents.

  1. It is the duty of the county governing authorities to erect or repair, when necessary, their respective courthouses and jails and all other necessary county buildings and to furnish each with all the furniture necessary for the different rooms, offices, or cells.
  2. The county buildings shall be erected and kept in order and repaired at the expense of the county under the direction of the county governing authority which is authorized to make all necessary contracts for that purpose.
    1. As used in this subsection, the term "county document" means:
      1. Records documenting property rights, deeds, and wills; and
      2. Tax records documenting ownership of property and the latest valuations of property.
    2. A county officer, the county board of tax assessors, or any other officer of the county having the responsibility or custody of any county documents set forth in paragraph (1) of this subsection shall, at night or when the county office is closed, keep such county documents:
      1. In a fireproof safe or vault;
      2. In fireproof cabinets;
      3. On microfilm, pursuant to the standards set forth in Article 6 of Chapter 18 of Title 50, only if a security copy has been sent to the Georgia State Archives;
      4. At a location not more than 100 miles from the county in a data storage and retrieval facility approved by the county governing authority within the State of Georgia which is in a building or facility which is in compliance with the fire safety standards applicable to archives and record centers as established by the National Fire Protection Association in Standard No. 232, as such standard was adopted on August 11, 1995. If documents are stored outside the county where the documents were created, the government entity shall bear all costs of transporting such documents back to the county of origin for purposes of responding to requests under Article 4 of Chapter 18 of Title 50, relating to inspections of public records. Such documents shall be made available to the requester; or
      5. On any other electronic imaging medium that facilitates retrieval of such documents via electronic means, provided that such medium enables conversion of such documents to future electronic imaging technologies and provided that such custodian creates a daily computer-based backup of all archival documents stored on such medium.
    3. It is the duty of the county governing authorities to furnish the necessary fireproof equipment, microfilming equipment and supplies, or some other safe facility for such county documents.
    4. On and after January 1, 1985, county documents shall be stored only in accordance with the provisions of this subsection. The local fire marshal in each county shall monitor the various county offices in the county to assure compliance with the provisions of this subsection.

      (Laws 1796, Cobb's 1851 Digest, p. 182; Code 1863, §§ 468, 469; Code 1868, §§ 530, 531; Code 1873, §§ 496, 497; Code 1882, §§ 496, 497; Civil Code 1895, §§ 351, 352; Civil Code 1910, §§ 399, 400; Code 1933, §§ 91-701, 91-702; Ga. L. 1983, p. 653, § 2; Ga. L. 1997, p. 925, § 3; Ga. L. 2012, p. 173, § 1-32/HB 665.)

Law reviews. - For survey article on local government law, see 59 Mercer L. Rev. 285 (2007) and 60 Mercer L. Rev. 263 (2008).

JUDICIAL DECISIONS

Authority exclusively granted to county. - Authority granted under O.C.G.A. § 36-9-5(a) is given exclusively to the county and is not shared with the city. Therefore, the county does not need the city's approval before condemning property within the city limits when, as here, the condemnation is reasonably necessary to provide a public service. Brunswick Landing, LLC v. Glynn County, 301 Ga. App. 288 , 687 S.E.2d 271 (2009), cert. denied, No. S10C0558, 2010 Ga. LEXIS 246 (Ga. 2010).

Power of commissioners. - County commissioners with power to levy and tax also have the power to act. Dunn v. O'Neill, 144 Ga. 823 , 88 S.E. 190 (1916).

Authority to levy tax. - Ordinary (now judge of the probate court) had the power to levy an extra tax to carry into effect the provisions of this section, without the recommendation of the grand jury, but the order levying such extra tax should clearly and distinctly state the object and purpose for which the tax is levied. Barlow v. Ordinary of Sumter County, 47 Ga. 639 (1873).

Discretion of county officers. - Necessities of the various counties in regard to these matters are to be determined by the peculiar conditions surrounding each county; and, therefore, the sound judgment of the county authorities in each case must be relied upon to provide the public with proper buildings on the one hand, and to protect the taxpayer from useless and unnecessary burdens in regard to such matters on the other. Commissioners of Habersham County v. Porter Mfg. Co., 103 Ga. 613 , 30 S.E. 547 (1898).

Authority to build courthouse. - Local Act giving board of commissioners jurisdiction over county matters authorizes the board of commissioners to contract for building of county courthouse. Matthews v. Hussey, 148 Ga. 526 , 97 S.E. 437 (1918).

Officers having jurisdiction of county affairs are not deprived of all discretion as to the manner of providing a courthouse or the character of the building or the building's equipment. On that subject the county authorities have broad discretion, which should not be disturbed by the courts except cautiously, nor unless it is clear and manifest that the county authorities are abusing the discretion vested in the authorities by law. Manry v. Gleaton, 164 Ga. 402 , 138 S.E. 777 (1927); Cowart v. Manry, 166 Ga. 612 , 144 S.E. 21 (1928).

Power to donate to chamber of commerce. - When the applicable revenue statutes were construed together with Ga. Const. 1877, Art. VII, Sec. XVI, Paras. I and II and Art. VII, Sec. VI, Para. II and Art. IX, Sec. V, Para. I (see now Ga. Const. 1983, Art. III, Sec. VI, Para. VI and Art. IX, Sec. IV), it was held that the statutes did not confer power or authority on a county board of commissioners to donate county funds derived from taxation or from other sources to a chamber of commerce, freight bureau, or convention and tourist bureau even if such donations were intended to accomplish a lawful purpose. Atlanta Chamber of Commerce v. McRae, 174 Ga. 590 , 163 S.E. 701 (1932).

Sheriff had power to modify county-owned property within exclusive use. - County sheriff had the independent authority to repaint and remark county-owned sheriff's vehicles assigned to the sheriff's exclusive use, but lacked the authority to modify portions of a county-owned building in which the sheriff's office and jail were housed, as the facility was shared with the superior, state, and magistrate courts of Clayton County, as well as the clerks of those courts, the solicitor general, and the district attorney, and hence, not under the sheriff's exclusive use. As a result, subject to compliance with O.C.G.A. § 40-8-91 , summary judgment in favor of the county as to the extent of the sheriff's authority was reversed as to the former, but affirmed as to the latter. Hill v. Clayton County Bd. of Comm'rs, 283 Ga. App. 15 , 640 S.E.2d 638 (2006), overruled on other grounds, Mayor & Aldermen of Savannah v. Batson-Cook Co., 291 Ga. 114 , 728 S.E.2d 189 (Ga. 2012).

County was authorized to exercise the county's right of eminent domain in connection with the expansion of a detention center because the county had jurisdiction over the maintenance of jails in the county under O.C.G.A. § 36-9-5(a) , the operation of a jail constituted a public purpose pursuant to Ga. Const. 1983, Art. IX, Sec. II, Para. V, and the property owner did not identify any general law limiting the right of the county to exercise the county's power of eminent domain. Brunswick Landing, LLC v. Glynn County, 301 Ga. App. 288 , 687 S.E.2d 271 (2009), cert. denied, No. S10C0558, 2010 Ga. LEXIS 246 (Ga. 2010).

Cited in Atlanta Title & Trust Co. v. Tidwell, 173 Ga. 499 , 160 S.E. 620 (1931); Turner v. Johnston, 183 Ga. 176 , 187 S.E. 864 (1936); Jackson v. Gasses, 230 Ga. 712 , 198 S.E.2d 657 (1973); Wheeler v. DeKalb County, 249 Ga. 678 , 292 S.E.2d 855 (1982); Manders v. Lee, 338 F.3d 1304 (11th Cir. 2003); Lawson v. Lincoln County, 292 Ga. App. 527 , 664 S.E.2d 900 (2008).

OPINIONS OF THE ATTORNEY GENERAL

Judges' and clerks' offices at courthouse. - Judges of the probate courts and clerks of the superior courts, being constitutional county officers, have a right to maintain their offices in the county courthouse, unless special circumstances make it impractical for judges and clerks to be located there. 1978 Op. Att'y Gen. No. 78-15.

Office of county school superintendent is not required to be located in county courthouse. 1965-66 Op. Att'y Gen. No. 66-31.

Storage of records at home. - It is not proper for a county tax commissioner to store tax records in the commissioner's home. 1975 Op. Att'y Gen. No. U75-75.

Unauthorized poll. - In the absence of any statutory authority, the board of commissioners would not be authorized to expend county funds to conduct an election in the nature of a "straw vote" or public opinion poll to determine whether to construct a new county building. 1968 Op. Att'y Gen. No. 68-70.

RESEARCH REFERENCES

Am. Jur. 2d. - 56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, § 478 et seq.

C.J.S. - 20 C.J.S., Counties, § 221.

ALR. - Applicability of municipal building regulation to state or county buildings, 31 A.L.R. 450 .

36-9-6. Courthouse rooms to be used by county officers.

The county governing authority shall designate the rooms in the courthouse to be occupied by each of the county officers and enter the same on its minutes, which it may change from time to time as convenience may require.

(Orig. Code 1863, § 470; Code 1868, § 532; Code 1873, § 498; Code 1882, § 498; Civil Code 1895, § 353; Civil Code 1910, § 401; Code 1933, § 91-703.)

JUDICIAL DECISIONS

Public access. - Courthouse is a public building, and as a matter of course the public does not require any permission to enter therein at suitable times and under reasonable regulations. All persons must be allowed equal privileges, both as to access to documents and as to reasonable space within which to transact business incident to the examination of the public records. Atlanta Title & Trust Co. v. Tidwell, 173 Ga. 499 , 160 S.E. 620 (1931).

The expression "county officers," as used in this section, refers to those officers who are such in the strict sense of the term - that is, those who are constitutional county officers; and the officers are such, under the provisions of the Constitution, as shall be elected under Ga. Const. 1877, Art. XI, Sec. II, Para. I (see now Ga. Const. 1983, Art. IX, Sec. I, Para. III). It does not apply to a city court solicitor. Graham v. Merritt, 165 Ga. 489 , 141 S.E. 298 (1928).

Justice of the peace (now magistrate) elected by the people is not a "county officer" within the meaning of this section, and therefore is not, as a matter of law or right, entitled to have a room in the courthouse for use as an office or place of holding court. McDonald v. Marshall, 185 Ga. 438 , 195 S.E. 571 (1938).

Cited in Turner v. Johnston, 183 Ga. 176 , 187 S.E. 864 (1936); Truesdel v. Freeney, 186 Ga. 288 , 197 S.E. 783 (1938).

OPINIONS OF THE ATTORNEY GENERAL

Judges' and clerks' offices at courthouse. - Judges of the probate courts and clerks of the superior courts, being constitutional county officers, have a right to maintain their offices in the county courthouse, unless special circumstances make it impractical for the judges and clerks to be located there. 1978 Op. Att'y Gen. No. 78-15.

36-9-7. Furnishing of supplies for county offices.

It shall be the duty of the county governing authority to furnish fuel, lights, furniture, stationery, records, and office supplies in general for the different county offices of the county, at the expense of the county, provided that this Code section shall apply only to the offices of the officers in the courthouse in the county.

(Ga. L. 1901, p. 62, § 1; Civil Code 1910, § 402; Code 1933, § 91-704.)

JUDICIAL DECISIONS

County officer having office in courthouse is entitled to have all office supplies and equipment reasonably necessary to maintain an office in a modern up-to-date manner. Floyd County v. Graham, 24 Ga. App. 294 , 100 S.E. 728 (1919).

Telephone included. - Phrase "office supplies in general" is broad enough to include telephone. Floyd County v. Graham, 24 Ga. App. 294 , 100 S.E. 728 (1919).

Cited in Turner v. Johnston, 183 Ga. 176 , 187 S.E. 864 (1936).

OPINIONS OF THE ATTORNEY GENERAL

County officers generally. - County officer having an office in the courthouse is entitled to have all office supplies and equipment reasonably necessary to maintain an office in a modern up-to-date manner, corresponding with officers of similar character responsible for a like amount of work. 1958-59 Op. Att'y Gen. p. 39.

County governing authority is required to furnish county officials with supplies for their offices. 1960-61 Op. Att'y Gen. p. 68.

Board of education. - It is the responsibility of the county to furnish the offices of the county board of education so long as those officers remain in the courthouse. 1963-65 Op. Att'y Gen. p. 492.

School superintendent. - When a county has provided the county's school superintendent with an office in the county courthouse, the county is required to furnish and equip such office. 1963-65 Op. Att'y Gen. p. 669.

Jail. - County is responsible for keeping and cleaning the jail and for paying for the labor and materials used in such maintenance. 1967 Op. Att'y Gen. No. 67-261.

Costs of forms provided. - County commissioners must bear the cost of printed forms used in recording mortgages. 1948-49 Op. Att'y Gen. p. 39.

Remedy of mandamus. - Proper procedure for a refusal to comply with this section would be by writ of mandamus. 1958-59 Op. Att'y Gen. p. 39.

RESEARCH REFERENCES

C.J.S. - 20 C.J.S., Counties, § 260.

36-9-8. Protection of county property by sheriff.

The public grounds and other county property are placed in the keeping of the sheriff of the county, subject to the order of the county governing authority; and it is his or her duty to preserve them from injury or waste and to prevent intrusions upon them.

(Orig. Code 1863, § 471; Code 1868, § 533; Code 1873, § 499; Code 1882, § 499; Civil Code 1895, § 354; Civil Code 1910, § 403; Code 1933, § 91-705; Ga. L. 2006, p. 560, § 2/SB 462.)

JUDICIAL DECISIONS

Cited in McDonald v. Marshall, 185 Ga. 438 , 195 S.E. 571 (1938); Favors v. State, 104 Ga. App. 854 , 123 S.E.2d 207 (1961); Wheeler v. DeKalb County, 249 Ga. 678 , 292 S.E.2d 855 (1982); Dorsey v. State, 279 Ga. 534 , 615 S.E.2d 512 (2005).

36-9-9. Construction of county jails.

The county jails hereafter constructed shall be of sufficient size and strength to contain and keep securely the prisoners who may be confined therein and shall contain at least two apartments, one for males and one for females, which are properly ventilated so as to secure the health of those confined therein.

(Orig. Code 1863, § 473; Code 1868, § 535; Code 1873, § 501; Code 1882, § 501; Civil Code 1895, § 355; Civil Code 1910, § 404; Code 1933, § 91-706.)

Cross references. - Jails generally, T. 42, C. 4.

State and county correctional institutions generally, T. 42, C. 5.

RESEARCH REFERENCES

C.J.S. - 20 C.J.S., Counties, § 269.

36-9-10. Inspection of county buildings, property, and records by grand jury.

Reserved. Repealed by Ga. L. 1994, p. 607, § 12, effective July 1, 1994.

Editor's notes. - This Code section was based on Orig. Code 1863, § 476; Code 1868, § 538; Code 1873, § 504; Code 1882, § 504; Civil Code 1895, § 359; Civil Code 1910, § 408; Code 1933, § 91-708; Ga. L. 1985, p. 1053, § 2.

36-9-11. Destruction or damaging of any county building or its appurtenances or furniture.

Any person who designedly destroys, injures, or defaces any public building or its appurtenances or furniture or uses the same for an indecent purpose shall be liable for the damages and shall be guilty of a misdemeanor.

(Orig. Code 1863, § 472; Code 1868, § 534; Code 1873, § 500; Code 1882, § 500; Civil Code 1895, § 358; Penal Code 1895, § 725; Civil Code 1910, § 407; Penal Code 1910, § 777; Code 1933, §§ 91-707, 91-9903.)

Cross references. - Criminal penalty for destroying, damaging, or otherwise affecting government property, § 16-7-24 .

JUDICIAL DECISIONS

Applicability to town jail. - This section applies to all holdings owned by a state or the state's subdivisions, including a town jail. Shepherd v. State, 16 Ga. App. 248 , 85 S.E. 83 (1915).

Urinating on courthouse door-facing a misdemeanor. - Entering a courthouse and urinating against the door-facing therein is a misdemeanor, whether as a result thereof the building is injured or defaced or not. Smith v. State, 110 Ga. 292 , 35 S.E. 166 (1900).

RESEARCH REFERENCES

Am. Jur. 2d. - 52 Am. Jur. 2d, Malicious Mischief and Related Offenses, §§ 1, 3, 5, 7, 8, 22.

C.J.S. - 54 C.J.S., Malicious or Criminal Mischief, §§ 1, 2.

CHAPTER 10 PUBLIC WORKS CONTRACTS

Sec.

Cross references. - Power of counties to contract for public road purposes, § 32-4-60 et seq.

Law reviews. - For annual survey article on local government law, see 52 Mercer L. Rev. 341 (2000). For note, "The Legal Nature of Public Purpose Authorities: Governmental, Private, or Neither," see 8 Ga. L. Rev. 680 (1974).

JUDICIAL DECISIONS

Cited in Home Indem. Co. v. Battey Mach. Co., 109 Ga. App. 322 , 136 S.E.2d 193 (1964).

RESEARCH REFERENCES

ALR. - Applicability of state statutes or municipal regulations to contracts for performance of work on land owned or leased by the federal government, 91 A.L.R. 779 ; 115 A.L.R. 371 ; 127 A.L.R. 827 .

Construction and effect of "changed conditions" clause in public works or construction contract with state or its subdivision, 56 A.L.R.4th 1042.

Public contracts: low bidder's monetary relief against state or local agency for nonaward of contract, 65 A.L.R.4th 93.

What are "prevailing wages," or the like, for purposes of state statute requiring payment of prevailing wages on public works projects, 7 A.L.R.5th 400.

Employers subject to state statutes requiring payment of prevailing wages on public works projects, 7 A.L.R.5th 444.

What projects involve work subject to state statutes requiring payment of prevailing wages on public works projects, 10 A.L.R.5th 337.

Employees' private right of action to enforce state statute requiring payment of prevailing wages on public works projects, 10 A.L.R.5th 360.

36-10-1. Contracts to be in writing and entered on minutes.

All contracts entered into by the county governing authority with other persons in behalf of the county shall be in writing and entered on its minutes.

(Orig. Code 1863, § 465; Code 1868, § 527; Code 1873, § 493; Code 1882, § 493; Civil Code 1895, § 343; Civil Code 1910, § 386; Code 1933, § 23-1701.)

Law reviews. - For article surveying important general legal principles of municipal and county government purchasing and contracting in Georgia, see 16 Mercer L. Rev. 371 (1965). For article surveying 1979 developments in Georgia contract law, see 31 Mercer L. Rev. 27 (1979). For article surveying legislative and judicial developments in Georgia local government law for 1978-79, see 31 Mercer L. Rev. 155 (1979). For article surveying Georgia cases in the area of county contracts from June 1979 through May 1980, see 32 Mercer L. Rev. 283 (1980). For article, "Local Government Law," see 53 Mercer L. Rev. 389 (2001). For survey article on construction law for the period from June 1, 2002 through May 31, 2003, see 55 Mercer L. Rev. 85 (2003). For annual survey of local government law, see 58 Mercer L. Rev. 267 (2006). For survey article on local government law, see 59 Mercer L. Rev. 285 (2007) and 60 Mercer L. Rev. 263 (2008). For annual survey on local government law, see 65 Mercer L. Rev. 205 (2013).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Policy. - This section is designed to keep the public's business open to inspection. Thus, no one can seriously contend that a party has entered into a legal contract with county officers and is entitled to the benefits of a contract, unless there has been a full compliance with the requirements of this section. Graham v. Beacham, 189 Ga. 304 , 5 S.E.2d 775 (1939).

Purpose. - Purpose and effect of this section was to furnish a defense for the county against the claim of any contractor with the county who might enter into a contract with the county without compliance with the condition imposed by this section. Ward v. State Hwy. Bd., 172 Ga. 414 , 157 S.E. 328 (1931).

Not applicable to municipality. - Requirement of O.C.G.A. § 36-10-1 is not applicable to a municipality. City of Powder Springs v. WMM Properties, Inc., 253 Ga. 753 , 325 S.E.2d 155 (1985).

For construction of section as against Act creating county public school system. - See County Bd. of Educ. v. Young, 187 Ga. 644 , 1 S.E.2d 739 (1939).

Oral contracts on behalf of a county have repeatedly been held to be void. City of Warrenton v. Johnson, 235 Ga. 665 , 221 S.E.2d 429 (1975).

An oral agreement is unenforceable, even though the agreement is embodied or recited in a resolution adopted by the county commissioners and entered on the minutes. Murray County v. Pickering, 42 Ga. App. 739 , 157 S.E. 343 (1931).

Subsequent oral modification. - Subsequent modification to a contract with a county may not be oral even though the contract leaves the general purpose and effect of the subject matter of the contract intact. Lester Witte & Co. v. Rabun County, 245 Ga. 382 , 265 S.E.2d 4 (1980).

Requirement of entry on minutes not satisfied. - Entry on the minutes of a county board of commissioners concerning preparation of supplemental indexes to the public records of the county does not meet the requirement of this section. Fulton County v. Holland, 71 Ga. App. 455 , 31 S.E.2d 202 (1944).

Attempted delegation of contracting power illegal. - Authorization for a county employee to purchase a dumptruck was an attempted delegation of the authority of the commission which was illegal since only the board would have the authority to make such purchase contract. Floyd v. Thomas, 211 Ga. 656 , 87 S.E.2d 846 (1955).

Grounds for injunction. - When the petition alleges that the board of commissioners illegally entered into a contract for the purchase of certain automotive equipment by authorizing a county employee to purchase a certain type dumptruck without stating from whom it was to be purchased and at what price, and prays that the defendants be restrained and enjoined from paying for the equipment purchased, it shows a good cause of action for the relief sought, and the court did not err in overruling the general demurrer (now motion to dismiss) thereto. Floyd v. Thomas, 211 Ga. 656 , 87 S.E.2d 846 (1955).

Use of word "chairman" and signatures of board members. - When contract was signed for and on behalf of county by the board's chairman, in accordance with the board's directive, it was not necessary, as urged, for the word "chairman" to follow the signature, or for all of the members of the board to sign the contract. Malcom v. Fulton County, 209 Ga. 392 , 73 S.E.2d 173 (1952).

Presumption of warrants' validity. - Contrary not being shown, it will be presumed that county warrants when issued are based upon a valid contract duly recorded as provided in this section. Thompson v. Shurling, 184 Ga. 836 , 193 S.E. 880 (1937).

Cited in Douglas v. Austin-Western Rd. Mach. Co., 173 Ga. 834 , 161 S.E. 811 (1931); Austin-Western Rd. Mach. Co. v. Fayette County, 99 F.2d 565 (5th Cir. 1938); Rainey v. Marion County, 63 Ga. App. 35 , 10 S.E.2d 258 (1940); McCloy v. Christian, 206 Ga. 590 , 58 S.E.2d 171 (1950); Bulloch County v. Ritzert, 213 Ga. 818 , 102 S.E.2d 40 (1958); Gwinnett County v. Archer, 102 Ga. App. 813 , 118 S.E.2d 97 (1960); Polk County v. Anderson, 116 Ga. App. 546 , 158 S.E.2d 315 (1967); Robinson Explosives, Inc. v. Dalon Contracting Co., 132 Ga. App. 849 , 209 S.E.2d 264 (1974); DeKalb County v. Scruggs, 147 Ga. App. 711 , 250 S.E.2d 159 (1978); City of Saint Marys v. Stottler Stagg & Assocs., 163 Ga. App. 45 , 292 S.E.2d 868 (1982); Ogletree v. Chester, 682 F.2d 1366 (11th Cir. 1982); Ellenberg v. DeKalb County (In re Maytag Sales & Serv., Inc.), 23 Bankr. 384 (Bankr. N.D. Ga. 1982); Smith v. Gwinnett County, 182 Ga. App. 875 , 357 S.E.2d 316 (1987); City of Atlanta v. North By Northwest Civic Ass'n, 262 Ga. 531 , 422 S.E.2d 651 (1992); Faulk v. Twiggs County, 269 Ga. 809 , 504 S.E.2d 668 (1998); Maner v. Chatham County, 246 Ga. App. 265 , 540 S.E.2d 248 (2000); Montgomery County v. Sharpe, 261 Ga. App. 389 , 582 S.E.2d 545 (2003).

Enforceability of Contracts

Mandate of this law is absolute and applicable to each and every contract made and executed on behalf of a county; and to be valid and enforceable every contract must conform to these essential requirements. Graham v. Beacham, 189 Ga. 304 , 5 S.E.2d 775 (1939).

Nonconforming contracts unenforceable. - If a contract with a county is not in writing, the contract is not enforceable. Killian v. Cherokee County, 169 Ga. 313 , 150 S.E. 158 (1929).

If contracts are not in writing and not entered on the minutes, the contracts are not enforceable. Griffin v. Maddox, 181 Ga. 492 , 182 S.E. 847 (1935); Malcom v. Fulton County, 209 Ga. 392 , 73 S.E.2d 173 (1952); Ferguson v. Randolph County, 211 Ga. 103 , 84 S.E.2d 70 (1954); Lasky v. Fulton County, 145 Ga. App. 120 , 243 S.E.2d 330 (1978).

Any negotiations or oral agreements, or even written agreements that have not been entered on the minutes, fall short of being valid contracts conferring any right upon a party, and will not constitute a basis for an action against a county. Graham v. Beacham, 189 Ga. 304 , 5 S.E.2d 775 (1939).

While a person has a legal right to have a written contract made with the county entered on the official minutes, if the contracts are not in writing and not entered on the proper minutes, the contracts are not enforceable. Hatcher v. Hancock County Comm'rs of Rds. & Revenues, 239 Ga. 229 , 236 S.E.2d 577 (1977).

Contract with a county is not enforceable unless in writing and entered on the proper minutes. Though unenforceable, the oral lease agreement was not illegal. Overlin v. Boyd, 598 F.2d 423 (5th Cir. 1979).

Contracts entered into by a county were required to be written, and thus, quantum meruit was unavailable against a county; a trial court properly entered summary judgment for a board of education, a school system, a principal, and a superintendent in a former employee's quantum meruit claim against the employees for employment compensation. Harden v. Clarke County Bd. of Educ., 279 Ga. App. 513 , 631 S.E.2d 741 (2006).

Negotiations are not contract. - Mere negotiations which contemplate a written contract, followed by a vote of the governing body to accept a bid, will not constitute a contract and may later be reconsidered. Malcom v. Webb, 211 Ga. 449 , 86 S.E.2d 489 (1955).

Any negotiations or oral agreements, or even written agreements that have not been entered on the minutes, fall short of being valid contracts and will not constitute a basis for an action against the county. Commercial Credit Corp. v. Mason, 151 Ga. App. 443 , 260 S.E.2d 352 (1979).

Duty to pay inapplicable. - When one party furnishes and another accepts valuable services, the law generally imposes a duty to pay, regardless of the intention of the parties, but this theory of recovery is not available when a county is the defendant. PMS Constr. Co. v. DeKalb County, 243 Ga. 870 , 257 S.E.2d 285 (1979).

Effect of valid contract not entered upon minutes. - County contract, otherwise valid, is not rendered void by not being entered of record by those whose duty it is to record the contract upon their minutes; but it is, through such failure, rendered unenforceable until the contract is recorded, and mandamus will lie to require its record. Malcom v. Fulton County, 209 Ga. 392 , 73 S.E.2d 173 (1952).

Warrant to pay contract not entered on minutes' record illegal. - When under the facts alleged, the purchase was such a contract as must be entered on the minutes of the commissioners, and was not so entered, the issuance of the warrant to pay off the purchase price of the material was illegal, and the court was not authorized to issue a mandamus absolute, under which the commissioners are required to raise by taxation the specified amount annually as will finally pay the claim. Douglas v. Austin-Western Rd. Mach. Co., 173 Ga. 386 , 160 S.E. 409 (1931).

County can be directed to spread a written contract it has entered into on its minutes through a writ of mandamus. Lester Witte & Co. v. Rabun County, 245 Ga. 382 , 265 S.E.2d 4 (1980).

No rescission after failure of duty to record. - County commissioners cannot make a contract in behalf of the county, fail to record the contract in discharge of their official duty, and then rescind the contract because the contract is not recorded. Malcom v. Fulton County, 209 Ga. 392 , 73 S.E.2d 173 (1952).

Sovereign immunity barred contract claim. - Claim for breach of contract brought by a homeowner against a county after a sewer line flooded part of the owner's home was barred by sovereign immunity since there was no written contract. Merk v. DeKalb County, 226 Ga. App. 191 , 486 S.E.2d 66 (1997).

Contract of sale of timber was not void merely because the contract was not read in full by the county attorney when the attorney presented the contract to the county commissioners for consideration and action, and because the contract was not read by the county commissioners themselves before being acted upon. Malcom v. Fulton County, 209 Ga. 392 , 73 S.E.2d 173 (1952).

Ultra vires contract not enforceable under quantum meruit theory of recovery. - Appellate court erred by holding that an environmental engineering company could recover against a city on the company's quantum meruit claim because quantum meruit was not an available remedy against the city since the claim was based on a municipal contract that was ultra vires as the contract was never approved by city council. City of Baldwin v. Woodard & Curran, Inc., 293 Ga. 19 , 743 S.E.2d 381 (2013).

Entry upon Minutes

Duty to enter contracts upon minutes. - Law imposes a duty upon those officers who govern the county's affairs to enter the contracts the officers make in behalf of the county upon the officers' minutes, and the continued neglect on the officer's part to discharge an official duty does not cause the duty to terminate. Malcom v. Fulton County, 209 Ga. 392 , 73 S.E.2d 173 (1952).

Mandamus as remedy. - If the proper county authorities refuse to make the entry, mandamus will lie to compel the authorities to do so, upon the application of a person authorized to institute the proceeding. Jones v. Bank of Cumming, 131 Ga. 614 , 63 S.E. 36 (1908); Wagener v. Forsyth County, 135 Ga. 162 , 68 S.E. 1115 (1910); King v. Casey, 164 Ga. 117 , 137 S.E. 776 (1927).

When a person has a written contract with a county, the person has the legal right to have the contract entered on the minutes of proper authorities and if the proper county authorities fail or refuse to enter such contract, the judge of the superior court should by mandamus compel the authorities to so enter the contract. In a proceeding for mandamus to compel the performance of such duty, the court will not inquire into the validity of the contract further than to see that on the contract's face the contract is prima facie valid. Douglas v. Austin-Western Rd. Mach. Co., 173 Ga. 834 , 161 S.E. 811 (1931).

Mandamus will lie to compel a commissioner or the commissioner's successor in office to record a contract, unless the applicant for such relief has with respect thereto been guilty of gross laches, or has permitted an unreasonable period of time to lapse before applying to the proper court therefor. Southern Airways Co. v. Williams, 213 Ga. 38 , 96 S.E.2d 889 (1957).

Mandamus available only if contract valid. - The contract must be prima-facie legal to obtain mandamus. Weathers v. Easterling, 153 Ga. 601 , 113 S.E. 152 (1922); Board of Comm'rs v. MacDougald Constr. Co., 157 Ga. 595 , 122 S.E. 317 (1924).

Mandamus against successors in office. - When the successors in office of the commissioners fail and refuse to enter the contract upon the commissioners' minutes, the commissioners may be compelled by mandamus to do so. Weathers v. Easterling, 153 Ga. 601 , 113 S.E. 152 (1922).

Person who has made a valid written contract with the county authorities has a legal right, though a nonresident of the state, to have the contract entered on such minutes. If the county authorities refuse to make the entry, the judge of the superior court should by mandamus compel the county authorities to do so. Milburn v. Commissioners of Glynn County, 112 Ga. 160 , 37 S.E. 178 (1900).

Who may apply for mandamus. - When a contractor in the progress of work procured loans from a bank for the purpose of completing the loan, and gave written orders to the bank authorizing the bank to receive the remaining warrants issued under the contract, the bank had such a special interest as authorized the bank to proceed by mandamus to compel the ordinary (now judge of the probate court) to enter the building contract on the minutes. Jones v. Bank of Cumming, 131 Ga. 614 , 63 S.E. 36 (1908).

Curative effect of mandamus. - Entry after the completion of the work, in compliance with a judgment in mandamus proceedings instituted to compel the entry of the contract on the minutes, cures the defect resulting from a failure to enter the contract on the minutes before the work was begun or completed. Wagener v. Forsyth County, 135 Ga. 162 , 68 S.E. 1115 (1910).

No time limit for entering on minutes. - This section does not state when the contract must be entered on the minutes of the ordinary (now judge of the probate court) or county commission, nor does the statute say that the contract cannot be reduced to writing or signed by the parties at a date after the contract is made. Burke v. Wheeler County, 54 Ga. App. 81 , 187 S.E. 246 (1936).

Statute fixes no limit of time during which a county contract may be entered of record. Malcom v. Fulton County, 209 Ga. 392 , 73 S.E.2d 173 (1952).

Sufficiency of entry. - All the material terms of a contract entered into in behalf of a county by the county authorities having jurisdiction over county matters must be in writing and entered on their minutes. Spalding County v. Chamberlin & Co., 130 Ga. 649 , 61 S.E. 533 (1908).

When the record shows that the contract was entered upon the minutes of the board of commissioners, but that certain specifications were omitted, it was legal for the judge to order the entry of the contract on the minutes. King v. Casey, 164 Ga. 117 , 137 S.E. 776 (1927).

Specific contract must be entered. - Although the superintendent of public works had general written authority, duly entered upon the minutes, of the board of commissioners of roads and revenues to employ men, if the specific contract with the plaintiff was not in writing and had never been entered upon the minutes of the board, the plaintiff cannot recover. Garner v. Floyd County, 24 Ga. App. 693 , 101 S.E. 918 (1920).

Simple memorandum on minutes of county commissioners that designated person was elected county physician will not authorize suit against county. Laurens County v. Thomas, 6 Ga. App. 568 , 65 S.E. 302 (1909).

Signature of the chair of the board of commissioners is sufficient if authorized. Pilcher v. English, 133 Ga. 496 , 66 S.E. 163 (1909).

Types of Contracts

When fiscal affairs governed by commissioners. - When a board of commissioners, or a board consisting of a single commissioner, has been created to take the place of the ordinary (now judge of the probate court) in the management of certain county affairs, this section applies. Wood v. Puritan Chem. Co., 178 Ga. 229 , 172 S.E. 557 (1934).

When the fiscal affairs of a county have been placed in the hands of commissioners, this section is applicable to contracts made in behalf of the county by the commissioners. Graham v. Beacham, 189 Ga. 304 , 5 S.E.2d 775 (1939).

Statute is applicable to contracts made in behalf of the county by commissioners. Malcom v. Webb, 211 Ga. 449 , 86 S.E.2d 489 (1955).

When the fiscal affairs of a county have been placed in the hands of commissioners, this law is applicable to contracts made in behalf of the county by the commissioners. Commercial Credit Corp. v. Mason, 151 Ga. App. 443 , 260 S.E.2d 352 (1979).

Assignment not within section. - Assignment by a county of claims to a certain bonus was held not to be such a contract as is contemplated by this section. Brown v. Rutledge & Summerour, 20 Ga. App. 118 , 92 S.E. 774 (1917).

Creation of relation of principal and agent between a city and a county by which the former authorizes the latter to contract in behalf of the city for the paving of the city's streets, which are to constitute links in an interconnecting county seat highway which the State Highway Department (now Department of Transportation) and the county propose to construct, is not such a contract as is required to be in writing and spread upon the minutes of the board of county commissioners of such county. Faver v. Mayor of Washington, 159 Ga. 568 , 126 S.E. 464 (1925).

Effect on tax levy. - It is not essential to the validity of a tax levy for specified purposes that contracts for effectuating such purposes should have been previously made and entered on the minutes. Blalock v. Adams, 154 Ga. 326 , 114 S.E. 345 (1922).

Applicability to board of education. - This section does not apply to a county board of education. Wilson v. Strange, 235 Ga. 156 , 219 S.E.2d 88 (1975).

Contract by county board of education with a person for the transportation of pupils to and from a public school is not one which is required by this section to be in writing and spread upon its minutes. Board of Educ. v. Hunt, 159 Ga. 749 , 126 S.E. 789 (1925).

Applicability to salaries of county officials. - This section refers only to contracts, and the payment of salaries of county officials and employees is not contractual within the statute's provisions. First Nat'l Bank v. Mann, 211 Ga. 706 , 88 S.E.2d 361 (1955).

While this section provides that all contracts entered into by the governing authority with other persons in behalf of the county shall be in writing and entered on the minutes, the payment of salaries of county officials and employees is not contractual within the statute's provisions. Deason v. DeKalb County, 222 Ga. 63 , 148 S.E.2d 414 (1966).

In a dispute between a county and a county state court judge over a supplement to the judge's salary, summary judgment for the judge was proper on the county's claim for reimbursement of the judge's salary supplement because the county failed to show that the supplement was paid with the total absence or want of power. Even if the supplement was paid in violation of the Open Meetings Act, O.C.G.A. § 50-14-1 et seq., the county's counterclaim was filed well outside the 90-day limitation period in O.C.G.A. § 50-14-1 (b)(2). Heiskell v. Roberts, 342 Ga. App. 109 , 802 S.E.2d 385 (2017).

No waiver of sovereign immunity without written contract. - Developer failed to meet the developer's burden of showing waiver of sovereign immunity because even if the parties' conduct after the expiration of the contract could be found to demonstrate that the developer was to continue to perform under the original contract, as a matter of law, neither that conduct nor the internal documents created by state agency after the contract expired established a written contract to do so and without a written contract, the state's sovereign immunity was not waived. Georgia Department of Labor v. RTT Associates, Inc., 299 Ga. 78 , 786 S.E.2d 840 (2016).

County attorney. - The exercise of the implied power conferred upon the county commissioners to designate a county attorney and to fix the attorney's term and salary may be effectually executed by a resolution of the county commissioners, duly passed and spread upon their minutes. Such transaction does not fall within the purview of this section, which requires all contracts entered into with other persons on behalf of the county to be in writing and entered on their minutes. The relation between the county and the county attorney does not rest upon contract, but arises from appointment impliedly authorized by legislative enactment. Templeman v. Jeffries, 172 Ga. 895 , 159 S.E. 248 (1931).

When the relation between a county and an attorney does not rest upon contract, but arises from the appointment of the attorney as a public officer, the transaction does not fall under this section. Walker v. Stephens, 175 Ga. 405 , 165 S.E. 99 (1932).

Procedure

Compliance must be alleged in plaintiff's petition. Milburn v. Glynn County, 109 Ga. 473 , 34 S.E. 848 (1899); Carolina Metal Prods. Co. v. Taliaferro County, 28 Ga. App. 57 , 110 S.E. 331 (1922).

In an action against a county for the breach of an alleged contract with the county authorities in charge of the county's fiscal affairs, it is necessary to allege that the contract was in writing and was entered upon the minutes of such authorities in order to make the contract a valid and enforceable contract against the county. A failure to so allege makes the petition subject to general demurrer (now motion to dismiss). Sosebee v. Hall County, 50 Ga. App. 21 , 177 S.E. 71 (1934).

Suit against a county, based upon an alleged contract with the county, is defective unless it is alleged that such contract is in writing and has been entered on the minutes as required by the statute. When the petition fails to make such essential allegations, it is subject to demurrer (now motion to dismiss). Graham v. Beacham, 189 Ga. 304 , 5 S.E.2d 775 (1939).

Petition is subject to general demurrer (now motion to dismiss) which alleges that contracts have been entered into with a county but which fails to allege that the contracts were in writing and entered on the minutes of the proper county authority. Hobbs v. Howell, 204 Ga. 370 , 49 S.E.2d 827 (1948).

All contracts entered into with other persons on behalf of the county shall be in writing and entered upon its minutes. If the fiscal affairs of the county are in charge of a board of commissioners, the law applicable to judges of the probate court with respect to the management of county affairs governs. Unless there has been a full compliance with the statutory provisions relative to contracts with a county, which fact must appear from the plaintiffs' petition, the petition is subject to demurrer (now motion to dismiss). Moore v. Baker, 85 Ga. App. 234 , 68 S.E.2d 911 (1952).

Petition sufficient. - Petition alleging that county commissioners had entered into contracts with one of the commissioner's members for the construction of roads in the county without the contracts being in writing and being entered on the minutes of the board, and in violation of the contracts between the State Highway Department (now Department of Transportation) and the county was sufficient as against a general demurrer (now motion to dismiss) to show that the plaintiffs were entitled to some of the substantial relief prayed for. Ferguson v. Randolph County, 211 Ga. 103 , 84 S.E.2d 70 (1954).

Failure to record is a matter of defense against payment, when suit is brought on county warrants, and not upon the contract itself. Americus Grocery Co. v. Pitts Banking Co., 169 Ga. 70 , 149 S.E. 776 (1929).

Waiver of noncompliance. - Failure to comply with this section is waived when no objection is made until after the verdict. Early County v. Fielder & Allen Co., 4 Ga. App. 268 , 63 S.E. 353 (1908).

Objection must be timely. - Whether or not the provisions of former Code 1933, § 23-1701 (see now O.C.G.A. § 36-10-1 ), would in any event apply to a written agreement to submit a matter in suit to arbitration under former Code 1933, § 7-411 (see now O.C.G.A. § 9-9-70 ), the fact that the agreement was never so entered was not available as a defense in the instant suit for mandamus, since an objection based upon this ground, if valid, should have been made before the entry of the judgment on the award. Hall County v. Smith, 178 Ga. 212 , 172 S.E. 645 (1934).

Conformity a matter of proof at trial. - Under this section, and in view of the construction placed upon the statute by the Supreme Court, a suit based upon an alleged contract with the county cannot prevail when it is not shown that there has been compliance with this section. Spears v. Robertson, 170 Ga. 368 , 152 S.E. 903 (1930).

Plaintiff may not recover from a county on a contract unless the contract is on the minutes; this is a matter of proof at trial and not a matter of pleading. PMS Constr. Co. v. DeKalb County, 243 Ga. 870 , 257 S.E.2d 285 (1979).

OPINIONS OF THE ATTORNEY GENERAL

Statute applies to implied and written county contracts without distinction. 1980 Op. Att'y Gen. No. 80-128.

County may enforce implied contract but implied contract cannot be enforced against a county. 1980 Op. Att'y Gen. No. 80-128.

Not entered upon minutes. - Although county contracts which are written but not entered in the minutes are unenforceable, such failure is a curable defect. 1980 Op. Att'y Gen. No. 80-128.

RESEARCH REFERENCES

C.J.S. - 20 C.J.S., Counties, § 231.

ALR. - Elements bearing directly upon the quality of a contract as affecting the character of one as independent contractor, 20 A.L.R. 684 .

Construction of paving contract or contractor's bond in respect of the contractor's obligation as to repairs, 72 A.L.R. 644 .

Power of municipality to fix specific scale of wages or hours for employees of contractors or subcontractors for municipal contracts, 81 A.L.R. 349 ; 129 A.L.R. 763 .

Inclusion in contract for public work of provision regarding extension of time for performance not specifically set out in the call for bids, 114 A.L.R. 1437 .

36-10-2. Letting of contracts for public works.

Reserved. Repealed by Ga. L. 2000, p. 498, § 2, effective April 20, 2000.

Editor's notes. - This Code section was based on Ga. L. 1878-79, p. 159, § 1; Ga. L. 1880-81, p. 183, § 1; Code 1882, § 493a; Civil Code 1895, § 344; Civil Code 1910, § 387; Code 1933, § 23-1702; Ga. L. 1982, p. 3, § 36; Ga. L. 1989, p. 356, § 4.

36-10-2.1. Letting by counties with population of 800,000 or more.

In any county of this state having a population of 800,000 or more according to the United States decennial census of 2000 or any future such census, contracts for building or repairing any courthouse or other public building, jail, bridge, causeway, or other public works or public property shall be let to the lowest responsible bidder, but the governing authority of any such county shall have the right to reject any or all bids for any such contract. The governing authority of any such county, in considering whether a bidder is responsible, may consider the bidder's quality of work, general reputation in the community, financial responsibility, previous employment on public works, and compliance with a minority business enterprise participation plan or making a good faith effort to comply with the goals of such a plan.

(Code 1981, § 36-10-2.1 , enacted by Ga. L. 1986, p. 309, § 1; Ga. L. 1987, p. 166, § 1; Ga. L. 2002, p. 1473, § 1.)

JUDICIAL DECISIONS

Minority business enterprise. - Enactment of O.C.G.A. § 36-10-2.1 did not affirm a county's authority to take minority business enterprise compliance into account in letting contracts prior to 1986. S.J. Groves & Sons Co. v. Fulton County, 920 F.2d 752 (11th Cir.), cert. denied, 500 U.S. 959, 111 S. Ct. 2274 , 114 L. Ed. 2 d 725, cert. denied, 501 U.S. 1252, 111 S. Ct. 2893 , 115 L. Ed. 2 d 1057 (1991).

36-10-2.2. Letting by certain counties with population of more than 150,000.

In any county having a population of more than 150,000 in any metropolitan statistical area having a population of not less than 260,000 nor more than 360,000 according to the United States decennial census of 1980 or any future such census, contracts for building or repairing any courthouse or other public building, jail, bridge, causeway, or other public works or public property shall be let to the lowest responsible bidder, but the governing authority of any such county shall have the right to reject any or all bids for any such contract. The governing authority of any such county, in considering whether a bidder is responsible, may consider the bidder's quality of work, general reputation in the community, financial responsibility, previous employment on public works, and compliance with a minority business enterprise participation plan or making a good faith effort to comply with the goals of such a plan.

(Code 1981, § 36-10-2.2 , enacted by Ga. L. 1988, p. 989, § 1.)

36-10-3 through 36-10-5.

Reserved. Repealed by Ga. L. 2000, p. 498, § 2, effective April 20, 2000.

Editor's notes. - Former Code Sections 36-10-3 through 36-10-5, relating to contracts for public works, were based on Ga. L. 1878-79, p. 159, § 3, p. 160, §§ 2, 4; Code 1882, §§ 493b-493d; Ga. L. 1889, p. 49, § 1; Civil Code 1895, §§ 345, 346; Penal Code 1895, § 279; Civil Code 1910, §§ 388, 389; Penal Code 1910, § 283; Ga. L. 1920, p. 58, § 1; Code 1933, §§ 23-1703, 23-1704, 23-9904; Ga. L. 1939, p. 193, § 1; Ga. L. 1967, p. 547, § 1; Ga. L. 1969, p. 954, § 1; Ga. L. 1978, p. 2029, § 1; Ga. L. 1980, p. 534, § 1; Ga. L. 1987, p. 641, § 1; Ga. L. 1989, p. 278, § 2; Ga. L. 1989, p. 356, § 5.

CHAPTER 11 CLAIMS AGAINST COUNTIES

Sec.

Cross references. - Liability of Department of Transportation for actions against counties relating to public roads forming part of state highway system, § 32-2-6 .

36-11-1. Time for presentation of claims.

All claims against counties must be presented within 12 months after they accrue or become payable or the same are barred, provided that minors or other persons laboring under disabilities shall be allowed 12 months after the removal of the disability to present their claims.

(Orig. Code 1863, § 479; Code 1868, § 541; Code 1873, § 507; Code 1882, § 507; Civil Code 1895, § 362; Civil Code 1910, § 411; Code 1933, § 23-1602.)

Law reviews. - For article surveying legislative and judicial developments in Georgia local government law for 1978-79, see 31 Mercer L. Rev. 155 (1979). For article surveying developments in Georgia local government law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 187 (1981). For article surveying developments in Georgia torts law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 247 (1981). For survey article on local government law, see 34 Mercer L. Rev. 225 (1982). For article, "Claims Against Counties: The Difference a Year Makes," see 36 Mercer L. Rev. 1 (1984). For article, "Defending the Lawsuit: A First-Round Checklist," see 22 Ga. St. B. J. 24 (1985). For annual survey on local government law, see 42 Mercer L. Rev. 359 (1990). For annual survey on law of torts, see 42 Mercer L. Rev. 431 (1990). For survey article on local government law, see 67 Mercer L. Rev. 147 (2015). For annual survey on trial practice and procedure, see 67 Mercer L. Rev. 257 (2015).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Constitutionality. - This section, providing that "all claims against counties must be presented within 12 months after they accrue or become payable, or the same are barred," is not inconsistent with Ga. Const. 1976, Art. IX, Sec. VI, Para. II (see, now, Ga. Const. 1983, Art. IX, Sec. II, Para. IX). Cobb v. Board of Comm'rs of Rds. & Revenue, 151 Ga. App. 472 , 260 S.E.2d 496 (1979).

Purpose of this section is to afford the county an opportunity to investigate the claim and ascertain the evidence, and to avoid the incurrence of unnecessary litigation. Stelling v. Richmond County, 81 Ga. App. 571 , 59 S.E.2d 414 (1950).

Rationale behind presentment of claim. - Object of presenting a claim to a county before the institution of suit is to afford the county an opportunity to investigate the claim and ascertain the evidence, and to avoid the incurrence of unnecessary litigation. Davis v. Cobb County, 65 Ga. App. 533 , 15 S.E.2d 814 (1941); Sikes v. Candler County, 247 Ga. 115 , 274 S.E.2d 464 (1981).

Comparison with § 36-33-5 . - While former Code 1933, § 69-308 (see now O.C.G.A. § 36-33-5 ), providing for the filing of a claim against a municipality before suit against such municipality, is unlike the provisions of former Code 1933, § 23-1602 (see now O.C.G.A. § 36-11-1 ) relative to the presentment of claims against a county, the objects and purposes of these two statutes are similar. Davis v. Cobb County, 65 Ga. App. 533 , 15 S.E.2d 814 (1941).

Construction with O.C.G.A. § 33-24-51(b) . - Limited waiver of sovereign immunity set forth in O.C.G.A. § 33-24-51(b) does not implicate the 12-month presentation requirement under O.C.G.A. § 36-11-1 . Warnell v. Unified Gov't of Athens-Clarke County, 328 Ga. App. 903 , 763 S.E.2d 284 (2014).

Substantial compliance with statutory requirements of ante litem notice is sufficient to give notice of a claim to a county. Burton v. DeKalb County, 202 Ga. App. 676 , 415 S.E.2d 647 , cert. denied, 202 Ga. App. 905 , 415 S.E.2d 647 (1992).

Existence of cause of action. - Under this section, a cause of action against a county such as can be recovered upon does not exist unless the claim has been presented within 12 months after the claim's accrual. Atlantic Coast Line R.R. v. Mitchell County, 36 Ga. App. 47 , 135 S.E. 223 (1926).

Principle of common honesty is beside the mark in determining whether the action, whatever be its nature, is subject to the bar of the statute of limitations. Mobley v. Murray County, 178 Ga. 388 , 173 S.E. 680 (1934).

Availability of injunction. - When a nuisance is continuing, the property owner is entitled to seek an injunction, as well as damages for the 12 months preceding, upon giving notice to the county. Duffield v. DeKalb County, 242 Ga. 432 , 249 S.E.2d 235 (1978).

Trial court erred in denying the city's motion for judgment on the pleadings because it was undisputed that the property owner failed to serve either the mayor, or chair of the city council or city commission; thus, the property owner did not comply with the ante litem notice statute, O.C.G.A. § 36-33-5(f) , which was fatal to the property's owner claim. City of Albany v. GA HY Imports, LLC, 348 Ga. App. 885 , 825 S.E.2d 385 (2019).

Cited in Baggett v. Barrow, 166 Ga. 700 , 144 S.E. 251 (1928); Habersham County v. Cornwall, 38 Ga. App. 419 , 144 S.E. 55 (1928); Newsome v. Treutlen County, 168 Ga. 764 , 149 S.E. 44 (1929); Effingham County v. Zittrouer, 39 Ga. App. 115 , 146 S.E. 351 (1929); Felton v. Macon County, 43 Ga. App. 651 , 159 S.E. 730 (1931); Morris v. Floyd County, 46 Ga. App. 150 , 167 S.E. 127 (1932); MacNeill v. Steele, 186 Ga. 792 , 199 S.E. 99 (1938); Habersham County v. Knight, 63 Ga. App. 720 , 12 S.E.2d 129 (1940); State Hwy. Dep't v. McClain, 216 Ga. 1 , 114 S.E.2d 125 (1960); Lorenz v. DeKalb County, 102 Ga. App. 9 , 115 S.E.2d 487 (1960); Richmond County v. Sibert, 218 Ga. 209 , 126 S.E.2d 761 (1962); Clayton County v. Sarno, 112 Ga. App. 379 , 145 S.E.2d 283 (1965); DeKalb County v. McFarland, 223 Ga. 196 , 154 S.E.2d 203 (1967); Fulton County v. Woodside, 223 Ga. 316 , 155 S.E.2d 404 (1967); Polk County v. Anderson, 116 Ga. App. 546 , 158 S.E.2d 315 (1967); Evans County v. McDonald, 133 Ga. App. 955 , 213 S.E.2d 82 (1975); Christensen v. Floyd County, 158 Ga. App. 274 , 279 S.E.2d 723 (1981); Neely v. Richmond County, 161 Ga. App. 71 , 289 S.E.2d 258 (1982); Mullins v. Columbia County, 202 Ga. App. 148 , 413 S.E.2d 489 (1991); Clayton County v. City of College Park, 301 Ga. 653 , 803 S.E.2d 63 (2017); Department of Public Safety v. Ragsdale, Ga. , 839 S.E.2d 541 (2020).

Specific Claims

When the right to and amount of a claim is fixed by law, such claim does not come within the purview of those claims barred by this section. The claims intended to be barred by this section have reference to claims growing out of contract or breach of duty. Norris v. Nixon, 78 Ga. App. 769 , 52 S.E.2d 529 (1949); Owens v. Floyd County, 94 Ga. App. 532 , 95 S.E.2d 389 (1956) (see now O.C.G.A. § 36-11-1 ).

Applicable only to claims arising from contract. - Requirements of O.C.G.A. § 36-11-1 on presenting claims apply to claims arising from contract and do not apply to a claim when the right to and amount of the claim is fixed by law as when a hospital furnishes emergency services to pregnant indigent residents of the county under O.C.G.A. § 31-8-40 et seq. Terrell County v. Albany/Dougherty Hosp. Auth., 256 Ga. 627 , 352 S.E.2d 378 (1987).

Mandamus claim. - After federal claims were dismissed in a former employee's action against a county employer, the employee's mandamus claims against a county official for reinstatement were not straightforward so as to allow the court to accept jurisdiction of state claims under 28 U.S.C. § 1367 because it was unclear whether ante litem notice was required under O.C.G.A. § 36-11-1 and whether a one-year limitation of O.C.G.A. § 9-3-33 applied to the mandamus claim. Toma v. Columbia County, F. Supp. 2d (S.D. Ga. Apr. 20, 2007).

Affirmative action programs. - O.C.G.A. § 36-11-1 did not apply to bar plaintiffs' federal and state constitutional claims arising from defendants' operation of a county's minority and female business enterprise program. Webster v. Fulton County, 44 F. Supp. 2d 1359 (N.D. Ga. 1999).

Landowners' claims for nuisance, trespass, negligence, and violation of riparian rights. - County was entitled to summary judgment on a landowner's claims for nuisance, trespass, negligence, and violation of riparian rights because the county had sovereign immunity as to all claims which did not amount to an inverse condemnation of the land, and the condemnation claim was barred by the landowner's failure to provide proper ante-litem notice pursuant to O.C.G.A. § 36-11-1 within 12 months of when the landowner's claim accrued. Jones v. E.R. Snell Contr., Inc., 333 F. Supp. 2d 1344 (N.D. Ga. 2004).

Applicability of sovereign immunity to action between city and county. - In a case involving taxation of alcoholic beverages, the city's claims against the county were not barred by sovereign immunity since the city and county were merely exercising their own respective home rule powers by collecting tax revenues for their own purposes, and neither was acting on behalf of the State of Georgia; thus, there was no sovereignty to be maintained. City of College Park v. Clayton County, 306 Ga. 301 , 830 S.E.2d 179 (2019).

Suit to hold governmental officer personally liable. - Plaintiffs were not compelled to notify sheriff of the suit in advance of filing suit against the sheriff because a party seeking a money judgment holding a governmental officer or agent personally liable, albeit for actions in the officer's or agent's official capacity, is a suit against the individual and not the government. Strickland v. Wilson, 205 Ga. App. 91 , 421 S.E.2d 94 (1992), cert. denied, 205 Ga. App. 901 , 421 S.E.2d 94 (1992).

Actions against school districts. - In the absence of an expression of legislative intent to apply the statute of limitations to actions against school districts, and in the absence of any specific bar to limit actions against school districts, O.C.G.A. § 36-11-1 does not apply to school districts. Payne v. Blackwell, 259 Ga. 483 , 384 S.E.2d 393 (1989).

Salaries of public officers which have been fixed by law do not come within the bar of this statute. Stelling v. Richmond County, 81 Ga. App. 571 , 59 S.E.2d 414 (1950).

Salary of commissioner. - This section is not applicable to allowances for salary of the road commissioner under a local law as the commissioner's salary is an allowance provided by law for the benefit of the commissioner as a public officer, and has no reference to contract or breach of duty. Sammons v. Glascock County, 161 Ga. 893 , 131 S.E. 881 (1926).

Tax collector commissions. - Since the duty of the county authorities to pay the tax collector commissions and the amount of commissions thus payable to the tax collector, as compensation to a public officer, are both fixed and determined by law, it is not incumbent upon the tax collector to present the collector's claim within 12 months in order to prevent it from becoming barred under this section. Bibb County v. Winslett, 191 Ga. 860 , 14 S.E.2d 108 (1941).

When bond is given, any action thereon is limited to one year from the completion of the contract and acceptance of the work by proper public authorities. Standard Oil Co. v. Jasper County, 53 Ga. App. 804 , 187 S.E. 307 (1936).

Claim of payee of void note. - Claim against a county by a payee of a void note for money used by the county and paid out on outstanding valid warrants, even if enforceable against the county, was barred since it was not presented within 12 months after accrual. Farmers' Loan & Trust Co. v. Wilcox County, 2 F.2d 465 (5th Cir. 1924).

County warrants. - County warrants are not such "claims" as are required to be presented within 12 months after the claims accrue or become payable. Jackson Banking Co. v. Gaston, 149 Ga. 31 , 99 S.E. 30 (1919); Commercial Trust Co. v. Laurens County, 267 F. 897 (S.D. Ga. 1920); Central of Ga. Ry. v. Wright, 35 Ga. App. 144 , 132 S.E. 449 (1926).

Claim to be subrogated to rights of former holders of county warrants paid with money of claimant is one which must be presented within 12 months after accrual. Farmers' Loan & Trust Co. v. Wilcox County, 298 F. 772 (S.D. Ga.), aff'd, 2 F.2d 465 (5th Cir. 1924).

Assertion of ownership of land in possession of county is not such claim as must be presented within 12 months. Lynch v. Harris County, 188 Ga. 651 , 4 S.E.2d 573 (1939).

Nuisance. - When evidence shows that the extent of a nuisance has not increased, so as to amount to the additional taking of property or additional damages to the property owner inside the 12-month period, then any action is barred. However, if the nuisance occurs within or its extent is increased during the 12-month period so as to amount to an additional taking of property belonging to a party, then that portion of the property taken during the 12-month period would be actionable. Duffield v. DeKalb County, 242 Ga. 432 , 249 S.E.2d 235 (1978).

Trial court did not err by failing to allow a property owner to assert the owner's nuisance claim against a county in relation to a second notice sent to the county because at best, the owner would only be allowed to assert a claim for a second time period if the owner could show that the extent of the nuisance had increased, so as to amount to the additional taking of property or additional damages to the property owner in the second 12-month period; the owner did not show that the county's taking increased after the original 12-month period. Bailey v. Annistown Rd. Baptist Church, Inc., 301 Ga. App. 677 , 689 S.E.2d 62 (2009), cert. denied, No. S10C0669, 2010 Ga. LEXIS 468 (Ga. 2010).

Trial court did not err by denying a county's motion for directed verdict on the ground that a property owner's ante-litem notice expressly limited the owner's trespass and nuisance claims to personal property damages only because a directed verdict was not demanded when the owner's notice was ambiguous at worst, and a reasonable person could construe the notice to refer to all of the owner's property, personal and real. Bailey v. Annistown Rd. Baptist Church, Inc., 301 Ga. App. 677 , 689 S.E.2d 62 (2009), cert. denied, No. S10C0669, 2010 Ga. LEXIS 468 (Ga. 2010).

Continuing nuisance. - Property owner is not barred from recovering for damages for a continuing nuisance, even when notice is not given within 12 months of completion of construction of the roadway. Reid v. Gwinnett County, 242 Ga. 88 , 249 S.E.2d 559 (1978).

When appellee gave sufficient notice under O.C.G.A. § 36-11-1 that county had duty to abate nuisance, and when appellee was thereafter in compliance with § 36-11-1 , appellee was entitled to appellee's remedy, regardless of whether or when subsequent injuries occurred on appellee's property as a result of the continuing nuisance. DeKalb County v. Bolick, 249 Ga. 843 , 295 S.E.2d 92 (1982).

Bar provided by O.C.G.A. § 36-11-1 is applicable in suits seeking to recover against a county for depreciation in market value of the property taken due to the alleged creation and maintenance of a continuing nuisance. Puckett v. Gwinnett County, 200 Ga. App. 53 , 406 S.E.2d 561 (1991).

Taking private property. - All claims against a county for taking or damaging private property for public uses must be filed within 12 months, and suit thereon for the depreciation in the market value must be instituted within the period of limitations stipulated by the law. It is not the policy of the law to permit the bringing of suits against counties from time to time for damages which might result by reason of negligently constructed public improvements constituting a nuisance. Bibb County v. Green, 42 Ga. App. 552 , 156 S.E. 745 (1931); Jones v. Fulton County, 207 Ga. App. 397 , 427 S.E.2d 802 (1993).

Ratification of acts of agent. - Limitation of a claim against a county which is predicated on the ratification of acts of an alleged agent begins to run from the date of the ratification, and the claim is barred after the lapse of 12 months from the ratification. Standard Oil Co. v. Jasper County, 53 Ga. App. 804 , 187 S.E. 307 (1936).

Materialman's liens. - Materialman may bring suit against the county prior to the completion of the work, if the contractor is then insolvent; in such case, the time when the contractor becomes insolvent is the time when the loss results and the county becomes subject to suit. Standard Oil Co. v. Jasper County, 53 Ga. App. 804 , 187 S.E. 307 (1936).

Claim against a county, for a loss by a person who furnished material for the building of a road to a contractor who was not required by the county to give bond is barred after the lapse of one year from the date when the contractor became insolvent, and from the date when the materialman's lien against the contractor became due. Standard Oil Co. v. Jasper County, 53 Ga. App. 804 , 187 S.E. 307 (1936).

Suits by imprisoned persons. - While there is no statutorily imposed disability which would prevent an imprisoned person from suing, O.C.G.A. § 9-3-90 provides an imprisoned person the benefit of a statutory provision tolling the statutes of limitation. The result is that a person imprisoned has an option of bringing an action while incarcerated or waiting until the period of incarceration ends. If the latter option is chosen, the period of limitation begins to run from the date of release, i.e., the time the "disability" is removed. Maddox v. Hall County, 162 Ga. App. 371 , 291 S.E.2d 442 (1982).

Inmate's cause of action for negligence against county jail officials for giving the inmate another inmate's medication by mistake accrued on the date the inmate became aware of the mistake. Hayes v. Medical Dep't, 197 Ga. App. 563 , 398 S.E.2d 837 (1990).

Claim for hospital care for prisoner. - Board of Regents of the University System of Georgia was required to comply with the ante litem notice requirement with regard to medical bills incurred by a prisoner resulting from a fight in jail since, although O.C.G.A. § 42-5-2(a) provided that a governmental unit having custody of a prisoner must furnish the prisoner with needed hospital attention, there was no law requiring payment by the governmental unit for such services. Board of Regents v. Putnam County, 234 Ga. App. 427 , 506 S.E.2d 923 (1998).

Presentation of Claims

Sufficiency of presentation. - Writing should certainly show who makes the demand, for what reason the demand is made, and the amount thereof. Troup County v. Boddie, 14 Ga. App. 434 , 81 S.E. 376 (1914).

Presentation of claim to outside counsel for county satisfies presentment requirement. - Trial court erred in awarding summary judgment to the county based on the fact that the letter from the plaintiff's attorney was not a proper presentment as the attorney for the county was not employed by the county in house because, to the extent that Coweta County v. Cooper, 318 Ga. App. 41 (2012), indicated that presentment could not properly be made to an outside county attorney, the supreme court disapproved of that decision; thus, notwithstanding that the county attorney was an outside attorney, the timely delivery of the plaintiff's otherwise adequate presentation of a claim against the county to the outside county attorney satisfied the statutory presentment requirement of O.C.G.A. § 36-11-1 . Croy v. Whitfield County, 301 Ga. 380 , 801 S.E.2d 892 (2017).

Claim barred for failure to serve ante-litem notice. - Trial court did not err in granting summary judgment to the deputy sheriff on the ground that any claim in the plaintiff's complaint that could be construed as a claim against the sheriff was barred because the plaintiff did not serve an ante-litem notice upon the sheriff; O.C.G.A. § 36-11-1 applied to the counties and to the sheriffs, when sued in their official capacities; and claims against a sheriff were not sustainable without the ante-litem notice. Davis v. Morrison, 344 Ga. App. 527 , 810 S.E.2d 649 (2018).

Claim in writing. - It is essential that the claim required to be filed with a county, as provided in this section, be in writing. Griffin Realty & Constr. Co. v. Chatham County, 47 Ga. App. 545 , 171 S.E. 237 (1933).

All claims against counties must be presented in writing. A mere oral statement is insufficient. Williams v. Lowndes County, 120 Ga. App. 429 , 170 S.E.2d 750 (1969); Doyal v. DOT, 142 Ga. App. 79 , 234 S.E.2d 858 (1977).

Mere conversation not sufficient. - Conversations with members of board of commissioners looking to a compromise are not sufficient presentment. Powell v. County of Muscogee, 71 Ga. 587 (1883).

Conversations with individual commissioners or verbal proposals to compromise do not circumvent the limitation provided by O.C.G.A. § 36-11-1 . Puckett v. Gwinnett County, 200 Ga. App. 53 , 406 S.E.2d 561 (1991).

Presentation must be made within 12 months of accrual. - Claims against a county are required to be presented to the chair of the claims of commissioners within 12 months after the claims accrue. Ellenberg v. DeKalb County (In re Maytag Sales & Serv., Inc.), 23 Bankr. 384 (Bankr. N.D. Ga. 1982).

Although an ante litem notice served by subdivision owners against a county arising out of a drainage system was insufficient under O.C.G.A. § 36-11-1 , the owners' complaint complied with § 36-11-1 , but the owners' claims for negligence and permanent nuisance were barred by the one-year presentment requirement because the owners had seen standing water more than a year before serving the owners' complaint. Klingensmith v. Long County, 352 Ga. App. 21 , 833 S.E.2d 608 (2019).

Bringing of suit within time limit is sufficient presentation of claim. Dement v. DeKalb County, 97 Ga. 733 , 25 S.E. 382 (1896); Elbert County v. Brown, 16 Ga. App. 834 , 86 S.E. 651 (1915); Mitchell County v. Dixon, 20 Ga. App. 21 , 92 S.E. 405 (1917); Taylor v. Richmond County, 57 Ga. App. 586 , 196 S.E. 303 (1938).

Service within 12 months. - Petition must not only be filed but served within 12 months after claim accrues. Pearson v. Newton County, 119 Ga. 863 , 47 S.E. 180 (1904); Godfrey v. County of Jefferson, 21 Ga. App. 384 , 94 S.E. 604 (1917).

Role of county attorney in presentment. - Presentment to the county attorney, inside or outside, is presentment for the purposes of O.C.G.A. § 36-11-1 . Croy v. Whitfield County, 301 Ga. 380 , 801 S.E.2d 892 (2017).

Presentment of a claim against a county under O.C.G.A. § 36-11-1 may be submitted to the governing authority by way of the county attorney as a matter of law. Croy v. Whitfield County, 301 Ga. 380 , 801 S.E.2d 892 (2017).

Outside law firm not authorized to receive notice for county. - Trial court erred by ruling that there was substantial compliance with O.C.G.A. § 36-11-1 by the plaintiffs sending notice of the plaintiff's suit against a county to a private law firm used by the county as outside legal counsel because the firm was not in-house or any department or official of a county and, thus, was not authorized to receive notice. Coweta County v. Cooper, 318 Ga. App. 41 , 733 S.E.2d 348 (2012).

Presentment of claim to sheriff. - Trial court erred in denying the defendants' motion to dismiss on the ground that the plaintiff's claim against the sheriff was barred by the plaintiff's failure to provide the Sheriff's Office with notice of such claim under O.C.G.A. § 36-11-1 because the plaintiff was legally precluded from even naming the county as the proper defendant, and given that § 36-11-1 did not mandate otherwise, the presentment of a claim for which the sheriff can be held vicariously liable must be directed to the sheriff. Moats v. Mendez, 349 Ga. App. 811 , 824 S.E.2d 808 (2019).

Twelve-month limit not applicable to claims against school district. - When the plaintiff failed to give the defendant school district written notice of plaintiff's claim within 12 months after the accrual of plaintiff's cause of action, the trial court properly determined that this failure did not constitute a bar to the action because the claim was against a county school district rather than a county because a claim against a county school district did not constitute a claim against the county within the contemplation of O.C.G.A. § 36-11-1 . Payne v. Blackwell, 259 Ga. 483 , 384 S.E.2d 393 (1989).

When claim accrues. - Trial court erred in ruling that a subcontractor's claim against a county accrued on the day the subcontractor received notification about the contractor's cash flow problems when, for three months after the letter was written, the contractor continued to work on the project. Kelly Energy Sys. v. Board of Comm'rs, 196 Ga. App. 519 , 396 S.E.2d 498 (1990).

No substitute for presentation. - When the suit was not brought within 12 months after the accrual of the right of action, it cannot be urged as a substitute for or an equivalent of the presentation of a claim. Newsome v. Treutlen County, 168 Ga. 764 , 149 S.E. 44 (1929).

Letter to board of commissioners sufficient. - Letter sent to the county board of commissioners by a party, a copy of which was sent to the Department of Transportation, did constitute a presentation of the claim being sued on, since the letter contained sufficient information to afford the recipients thereof an opportunity to investigate the claim and ascertain the evidence prior to suit. Sikes v. Candler County, 247 Ga. 115 , 274 S.E.2d 464 (1981).

Statement of damages. - O.C.G.A. § 36-11-1 does not create an inflexible requirement that presentation to county of claim must always contain statement of amount of damages in order to be sufficient. Sikes v. Candler County, 247 Ga. 115 , 274 S.E.2d 464 (1981).

Letter met ante litem requirements. - Landowners substantially complied with statutory ante litem requirements of O.C.G.A. § 36-33-5 when the letter the landowners sent to the city alleging damages from a continuing nuisance the city allegedly maintained on the landowners' property and identifying the nature and location of the damage, the cause, and the nature of the potential cause of action, sufficiently put the city on notice of the problem occurring on their property. City of Columbus v. Barngrover, 250 Ga. App. 589 , 552 S.E.2d 536 (2001).

Claim need not be presented while governing authority actually in session. - This section does not require that a claim against the county be presented at a time when the governing authority or authorities of the county are actually in session, either at a regular or called meeting, for the transaction of county affairs. Davis v. Cobb County, 65 Ga. App. 533 , 15 S.E.2d 814 (1941).

Notice to insurer insufficient. - Formal, written notice to the county is required in presentation of an insurance claim, and notice to the county's liability insurer does not satisfy the statute. Cobb v. Board of Comm'rs of Rds. & Revenue, 151 Ga. App. 472 , 260 S.E.2d 496 (1979).

Presentation for auditing. - Charge by the party presenting a claim need not use the word "audit," but it is sufficient if the party presents it for that purpose, and the ordinary (now judge of the probate court) examines it and refuses to allow it, that is, refuses to audit it and approve it but rejects and disallows it, is not erroneous. County of Cobb v. Adams, 68 Ga. 51 (1881).

Procedure

Defense must be set forth affirmatively. - It is incumbent on a party pleading to a preceding pleading to set forth affirmatively any statute of limitation as a defense to an action. Failure to do so results in the court's determination that this issue is not raised, even though it may be present and could operate as a bar to recovery. Nipper v. Crisp County, 120 Ga. App. 583 , 171 S.E.2d 652 (1969).

Defense under Ga. L. 1971, p. 180, §§ 6, 9 (see now O.C.G.A. § 36-11-1 ) must be specially pled under Ga. L. 1967, p. 226, § 8 (see now O.C.G.A. § 9-11-8(c) ). Gordy Constr. Co. v. KHM Dev. Co., 128 Ga. App. 648 , 197 S.E.2d 426 (1973).

In the absence of distinct averments of the presentation of valid claims against the county within the time prescribed by the statute, the petition was subject to demurrer (now motion to dismiss). Commissioners of Rds. & Revenue v. Howard, 59 Ga. App. 541 , 1 S.E.2d 222 (1939).

Writing must be alleged. - An allegation that the claim was presented "as provided by law" will not supply the place of a distinct allegation that it was presented in writing. Sparks v. Floyd County, 15 Ga. App. 80 , 82 S.E. 583 (1914).

Plaintiff was not dilatory in filing plaintiff's motion to amend to add the county as a new party when the plaintiff filed a negligence suit against a motor company approximately four months after a fatal incident occurred, and moved to add the county for faulty sign-posting approximately two months after filing the original suit. Although O.C.G.A. § 36-11-1 did not require plaintiff to wait for a response from the county after plaintiff notified them of plaintiff's claim, plaintiff's two-month delay in adding the county was not dilatory. Jarriel v. GMC, 835 F. Supp. 639 (N.D. Ga. 1993).

Petition subject to dismissal when petition does not show presentation of claim. - When it did not appear in the petition in a suit against a county that the claim sued on was presented to the county within 12 months after the claim accrued or became payable, and when it did not appear that the petition was filed and service thereon perfected upon the county within this period, the petition failed to set out a cause of action, and was subject to dismissal. Griffin Realty & Constr. Co. v. Chatham County, 47 Ga. App. 545 , 171 S.E. 237 (1933); Commissioners of Rds. & Revenue v. Howard, 59 Ga. App. 541 , 1 S.E.2d 222 (1939).

Sufficiency of averment of presentation. - Statement by plaintiff that plaintiff had in writing demanded compensation from those commissioners, who had refused payment thereof, is sufficient averment of presentation. Adkins v. Crawford County, 135 Ga. 679 , 70 S.E. 335 (1911).

Allegation of time. - Allegations that the claim arose "some time during the year 1910," and that the plaintiff's claim for damages was filed on October 14, 1911, are not sufficient to show presentation within 12 months. Elbert County v. Chapman, 15 Ga. App. 197 , 82 S.E. 808 (1914).

An action against a county, brought in 1923, to recover taxes alleged to have been illegally levied and collected in 1919, and alleging that a month before the filing of the suit a demand that the taxes so collected be refunded was made upon the county authorities and refused, was barred. Atlantic Coast Line R.R. v. Mitchell County, 36 Ga. App. 47 , 135 S.E. 223 (1926).

Time to submit claim. - Claim by a hospital for services rendered to a prisoner injured in a fight in jail was untimely when the prisoner was discharged on December 5, 1996, and a claim was not submitted to the defendant county until December 6, 1997; notwithstanding a hospital policy that bills are not due and payable until 30 days after discharge, the 12 month period began to run at the date of discharge. Board of Regents v. Putnam County, 234 Ga. App. 427 , 506 S.E.2d 923 (1998).

In a suit against a county after county workers performed work on private property, it was undisputed that no written ante litem notice was provided to the county of any claim in connection with work performed by the county's workers until August 2003, and by this time, any action either contesting or contrary to the terms of a settlement agreement was barred by the statute of limitations. Meadows v. Houston County, 295 Ga. App. 183 , 671 S.E.2d 225 (2008).

Under O.C.G.A. § 36-11-1 , all claims against counties must be presented within 12 months after the claims accrue or become payable or the claims are barred, provided that minors or other persons laboring under disabilities shall be allowed 12 months after the removal of the disability to present their claims. Coweta County v. Cooper, 318 Ga. App. 41 , 733 S.E.2d 348 (2012).

Trial court did not err by denying a county's motion for summary judgment because an issue of fact existed as to when the parties expected the project to be complete; thus, it followed that there was an issue of fact regarding when, if ever, the county breached the county's agreement to provide water and sewer lines and when the plaintiff's claim of breach of contract accrued and therefore whether the bankruptcy trustee timely filed notice as required by O.C.G.A. § 36-11-1 . Effingham County v. Roach, 329 Ga. App. 805 , 764 S.E.2d 600 (2014), overruled on other grounds, Rivera v. Washington, 298 Ga. 770 , 784 S.E.2d 775 (2016).

Trial court properly granted a county's motion for summary judgment because the record showed that the plaintiffs failed to present notice of the plaintiffs' claim to the county with the 12-month statutory period and admittedly failed to present the county with formal written notice before the plantiffs filed the plaintiffs' suit, which the plaintiffs did not file against the county until more than 22 months after the accident. Warnell v. Unified Gov't of Athens-Clarke County, 328 Ga. App. 903 , 763 S.E.2d 284 (2014).

Averment of presentation of note evidencing loan insufficient. - When a plaintiff seeks to recover money loaned to a county and used by the county, an allegation that the plaintiff presented the notes evidencing the loan is not a sufficient averment of presentation. The notes were illegal. This section contemplates present legal action. Butts County v. Wright, 143 Ga. 253 , 84 S.E. 443 (1915).

Garnishment not allowed. - System provided by law for the payment of claims against counties is to be adopted in all cases. This system cannot be preserved by allowing counties to be garnished. Dotterer v. Bowe, 84 Ga. 769 , 11 S.E. 896 (1890).

OPINIONS OF THE ATTORNEY GENERAL

Governing authority subject to general law when remitting or crediting county taxes. - Governing authority of the county in exercising the county's authority under former Code 1933, §§ 92-3812 and 92-6502 (see now O.C.G.A. § 48-5-241 ) was subject to the general law set forth in former Code 1933, § 20-1007 (see now O.C.G.A. § 13-1-13 ), and was also subject to the limitation prescribed in former Code 1933, § 23-1602 (see now O.C.G.A. § 36-11-1 ). 1958-59 Op. Att'y Gen. p. 379.

RESEARCH REFERENCES

Am. Jur. 2d. - 56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, § 609 et seq.

C.J.S. - 20 C.J.S., Counties, § 390 et seq.

ALR. - Power of city, town, or county or its officials to compromise claim, 105 A.L.R. 170 ; 15 A.L.R.2d 1359.

Waiver of, or estoppel to assert, defects in notice of claim against county or municipality, 148 A.L.R. 637 .

Local government tort liability: minority as affecting notice of claim requirement, 58 A.L.R.4th 402.

Sufficiency of notice of claim against local political entity as regards time when accident occurred, 57 A.L.R.5th 689.

36-11-2. Audit and registration of claims against county; issuance of order on treasurer for claim; specification of fund on which order drawn.

Except where otherwise provided by law, each county governing authority shall audit all claims against its respective county. Every such claim, or such part as may be allowed, must be registered. The county governing authority or its clerk must give the claimant an order on the treasurer for the same; in the order, it shall specifically designate upon what particular fund such order is drawn, out of which payment is to be made.

(Orig. Code 1863, § 478; Code 1868, § 540; Ga. L. 1871-2, p. 69, § 1; Code 1873, § 506; Code 1882, § 506; Civil Code 1895, § 361; Civil Code 1910, § 410; Code 1933, § 23-1601.)

JUDICIAL DECISIONS

Application to county commissioners. - When the fiscal affairs of a county are in charge of a board of county commissioners, the authority to audit and settle claims conferred by Ga. L. 1872, p. 479 (see O.C.G.A. §§ 36-5-1 (now repealed) and 36-11-2 ) upon the ordinary (now judge of the probate court) must be exercised by the board of county commissioners. Walker v. Stephens, 175 Ga. 405 , 165 S.E. 99 (1932).

The statute applies to county commissioners when commissioners, instead of the ordinary (now judge of the probate court), have control of county affairs. Walden v. Smith, 203 Ga. 207 , 45 S.E.2d 660 (1947).

Duty nondelegable. - Duty of the board of county commissioners to audit and pass upon any claims arising against the county in connection with a construction project is a duty which cannot be delegated, and the funds in controversy should not be used for the payment of any such charges before a determination of their correctness by such commissioners. McGinty v. Pickering, 180 Ga. 447 , 179 S.E. 358 (1935).

Presumption that order or warrant valid. - It will be presumed that an order or warrant of the commissioners is a valid judgment, unless it shows that the commissioners had no jurisdiction to issue the order or warrant. Blue Island State Bank v. McRae, 169 Ga. 279 , 150 S.E. 151 (1929).

Cited in Armistead v. MacNeill, 203 Ga. 204 , 45 S.E.2d 652 (1947); DeKalb County v. Bolick, 249 Ga. 843 , 295 S.E.2d 92 (1982).

RESEARCH REFERENCES

Am. Jur. 2d. - 56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, § 722.

C.J.S. - 20 C.J.S., Counties, § 395.

ALR. - Waiver of, or estoppel to assert, defects in notice of claim against county or municipality, 148 A.L.R. 637 .

36-11-3. When orders to be paid; registration of orders issued.

No order shall be paid until after five days from its date and delivery, unless otherwise specially ordered. In the meantime, the county governing authority may furnish the county treasurer with a full statement of all orders issued, which shall be immediately registered by him; when so registered, such orders shall be paid according to law, without further notice to the treasurer previous to the time of payment.

(Orig. Code 1863, § 531; Code 1868, § 595; Code 1873, § 557; Code 1882, § 557; Civil Code 1895, § 464; Civil Code 1910, § 580; Code 1933, § 23-1605.)

JUDICIAL DECISIONS

Sections 7-4-2 and 7-4-15 not repealed and construed in pari materia. - Former Code 1933, § 23-1604 et seq. (see now O.C.G.A. § 36-11-3 et seq.) did not expressly or by necessary implication repeal former Code 1933, §§ 57-101 and 57-110 (see now O.C.G.A. §§ 7-4-2 and 7-4-15 ). The statutes all were to be considered together, and when so considered, the sections first mentioned contemplate administrative action by the county officers in regard to the order in which lawful county orders shall be paid. Marion County v. First Nat'l Bank, 193 Ga. 263 , 18 S.E.2d 475 (1942).

Failure to register a warrant drawn by the ordinary (now judge of the probate court) of a county may subordinate the payment of the warrant to that of others duly registered, but it does not render the warrant void. Neal Loan & Banking Co. v. Chastain, 121 Ga. 500 , 49 S.E. 618 (1904).

Mandamus to compel furnishing of statement. - Mandamus issued requiring by virtue of this section the ordinary (now judge of the probate court) to furnish a statement of all orders drawn by a predecessor in office on funds derived from the sale of courthouse bonds. Aaron v. German, 114 Ga. 587 , 40 S.E. 713 (1901).

Interest. - County warrant, which is a liquidated demand, even though the warrant does not express any date for payment, is as a matter of law payable on demand, when made five days after the date on which the warrant is issued, and will ordinarily bear interest from and after demand was so made. Marion County v. First Nat'l Bank, 193 Ga. 263 , 18 S.E.2d 475 (1942).

RESEARCH REFERENCES

C.J.S. - 20 C.J.S., Counties, § 400.

36-11-4. Order in which county debts paid.

  1. When there are enough funds to pay all outstanding orders and other forms of indebtedness due which the treasurer is authorized to pay, such debts may be paid indiscriminately without regard to their dates. When there are enough funds to pay all forms of indebtedness dated prior to some particular date, all such forms of indebtedness may likewise be paid indiscriminately. When there are insufficient funds to pay all forms of indebtedness of equal degree, they shall be paid ratably. Under all other circumstances, debts should be paid in the order of their dates.
  2. If any person holding county orders fails to present them by December 1 to the county treasurer for payment, such orders shall be postponed in favor of all orders which were so presented and were not paid for want of funds.

    (Orig. Code 1863, §§ 530, 532; Code 1868, §§ 594, 596; Code 1873, §§ 556, 558; Code 1882, §§ 556, 558; Civil Code 1895, §§ 463, 465; Civil Code 1910, §§ 579, 581; Code 1933, §§ 23-1604, 23-1607.)

JUDICIAL DECISIONS

Sections 7-4-2 and 7-4-15 not repealed and construed in pari materia. - Former Code 1933, § 23-1604 et seq. (see now O.C.G.A. § 36-11-3 et seq.) did not expressly or by necessary implication repeal former Code 1933, §§ 57-101 and 57-110 (see now O.C.G.A. §§ 7-4-2 and 7-4-15 ). The statutes were to be considered together, and when so considered, the sections first mentioned contemplate administrative action by the county officers in regard to the order in which lawful county orders shall be paid. Marion County v. First Nat'l Bank, 193 Ga. 263 , 18 S.E.2d 475 (1942).

Compliance with section. - Former Code 1933, § 23-1306 (see now O.C.G.A. § 36-11-6 ) was substantially complied with by an endorsement upon the order by a designated county officer as follows: "presented for payment" on a named date - "insf. funds," meaning insufficient funds; and this was true notwithstanding it was provided by former Code 1933, §§ 23-1604 and 23-1607 (see now O.C.G.A. § 36-11-4 ) "when there is not enough to pay all [county orders] of equal degree, they shall be paid ratably." Candler v. W.A. Neal & Son, 46 Ga. App. 625 , 168 S.E. 265 (1933), aff'd, 180 Ga. 89 , 178 S.E. 285 (1935).

Applicability of section when warrants aggregate sum larger than treasury. - When warrants for current expenses, which have been paid by another from the proceeds of a loan which the other person made to the county (to the rights of the several holders of which warrants such person has become subrogated), and other warrants issued by the county commissioners, aggregate a sum larger than that which the county has in the county's treasury, raised from the revenues of the year in which the various liabilities were incurred, payment must be made in accordance with the rules prescribed in former Civil Code 1895, §§ 361 et seq. and 463 et seq. (see now O.C.G.A. § 36-11-2 et seq.). Butts County v. Jackson Banking Co., 129 Ga. 801 , 60 S.E. 149 (1907).

Cited in Maddox v. Anchor Duck Mills, 167 Ga. 695 , 146 S.E. 551 (1929).

RESEARCH REFERENCES

Am. Jur. 2d. - 56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, § 722.

36-11-5. Interest on orders presented and not paid.

  1. On December 1 of each year, the county treasurer and the county governing authority shall together make an entry of all orders entitled to payment which were not so presented for payment and what orders not of equal dignity have been paid instead, in whole or in part, and what other orders are entitled to payment before such nonpresented orders. Persons holding such orders who present them without receiving payment before such day may have the treasurer annually mark thereon "Presented," the day of presentation, and that they were not paid for want of funds. Such county orders, when legally issued and duly presented, as provided in this Code section, and not paid for want of funds, shall bear interest at such rate as may be prescribed by the county governing authority, by resolution duly adopted and entered upon the minutes of the county governing authority, which rate of interest shall in no event be more than 7 percent per annum from date of entry of presentation and nonpayment for want of funds. The rate so fixed shall be plainly written or printed upon the face of the order. However, interest shall not be paid on such warrant or warrants after July 1 following the year in which they were presented unless the warrant or warrants are again presented and payment is refused for want of funds. The treasurer or keeper of county funds shall endorse on the warrant the words "Presented for payment; no funds on hand with which to pay same. This the ________ day of ________________________, ______."
  2. Any county order issued by any county governing authority shall bear interest at the rate specified by resolution at the time of the issuance of the order, as provided in this Code section. The rate of interest which the warrant shall thereafter bear shall not be changed or affected by any subsequent resolution or change of rate of interest that may be adopted thereafter by the county governing authority; rather the warrant shall bear the rate of interest written or printed upon the face of the order and established by the county governing authority at the time of the issuance thereof.

    (Orig. Code 1863, § 533; Code 1868, § 597; Code 1873, § 508; Code 1882, § 508; Civil Code 1895, § 466; Civil Code 1910, § 582; Ga. L. 1920, p. 65, § 1; Code 1933, § 23-1608; Ga. L. 1935, p. 110, §§ 1, 2; Ga. L. 1999, p. 81, § 36.)

JUDICIAL DECISIONS

Sections 7-4-2 and 7-4-15 not repealed and construed in pari materia. - Former Code 1933, § 23-1604 et seq. (see now O.C.G.A. § 36-11-3 et seq.) did not expressly or by necessary implication repeal former Code 1933, §§ 57-101 and 57-110 (see now O.C.G.A. §§ 7-4-2 and 7-4-15 ). The statutes all were to be considered together, and when so considered, the sections first mentioned contemplate administrative action by the county officers in regard to the order in which lawful county orders shall be paid. Marion County v. First Nat'l Bank, 193 Ga. 263 , 18 S.E.2d 475 (1942).

Compliance with section. - Former Code 1933, § 23-1608 (see now O.C.G.A. § 36-11-5 ) was substantially complied with by an endorsement upon the order by a designated county officer as follows: "presented for payment" on a named date - "insf. funds," meaning insufficient funds; and this was true notwithstanding it was provided by former Code 1933, §§ 23-1604 and 23-1607 (see now O.C.G.A. § 36-11-4 ), "when there is not enough to pay all [county orders] of equal degree, they shall be paid ratably." Candler v. W.A. Neal & Son, 46 Ga. App. 625 , 168 S.E. 265 (1933), aff'd, 180 Ga. 89 , 178 S.E. 285 (1935).

When interest begins. - County warrants do not bear interest, unless the warrants are presented for payment and payment is not made for want of funds, and an entry of such presentation and such nonpayment is made by the county treasurer on the warrant, with the date of presentation. When the above requirements are complied with, such warrants bear interest from the date of entry of such presentation and nonpayment until the first day of July of the year following in which such entry is made. Americus Grocery Co. v. Pitts Banking Co., 169 Ga. 70 , 149 S.E. 776 (1929).

Former Code 1933, § 23-1608 (see now O.C.G.A. § 36-11-5 ) assumed that the county treasurer would pay the warrant when payment was demanded, and if the treasurer failed to pay, contemplated that interest would run in virtue of former Code 1933, §§ 57-101 and 57-110 (see now O.C.G.A. §§ 7-4-2 and 7-4-15 ) from the date of the demand. Marion County v. First Nat'l Bank, 193 Ga. 263 , 18 S.E.2d 475 (1942).

Interest if funds available. - Provision in former Code 1933, § 23-1608 (see now O.C.G.A. § 36-11-5 ) that county orders when legally issued and duly presented as therein provided "and not paid for want of funds, shall bear interest" if endorsed by the treasurer as set forth, did not mean that interest allowed generally on liquidated demands as under former Code 1933, §§ 57-101 and 57-110 (see now O.C.G.A. §§ 7-4-2 and 7-4-15 ), would be disallowed if sufficient available funds were in hand to pay the warrant. Marion County v. First Nat'l Bank, 193 Ga. 263 , 18 S.E.2d 475 (1942).

Recovery of full value of instrument. - In a suit by the endorsee against the endorser to recover upon the contract of endorsement, the plaintiff is entitled to recover the full face value of the order with any interest legally due thereon as provided in this section. Candler v. W.A. Neal & Son, 46 Ga. App. 625 , 168 S.E. 265 (1933), aff'd, 180 Ga. 89 , 178 S.E. 285 (1935).

Treasurer cannot go behind judgment. - Order drawn by the ordinary (now judge of the probate court) of a county on the treasurer for the payment of a debt due by the county is evidence of an adjudication by the ordinary (now judge of the probate court) that the amount stated in the order is due; and the treasurer cannot go behind this judgment, except for fraud or mistake as to the amount of the indebtedness. Thompson v. Shurling, 184 Ga. 836 , 193 S.E. 880 (1937).

Duty of treasurer when payment refused. - An official duty of a county treasurer, to whom a regularly issued warrant drawn by the ordinary (now judge of the probate court) having control of the finances of the county is presented for payment, when payment is refused, is to make the entry on the warrant prescribed by the statute. Thompson v. Shurling, 184 Ga. 836 , 193 S.E. 880 (1937).

Orders drawn upon nonexistent funds. - This section clearly contemplates the existence of county orders drawn upon funds not in esse, and the warrants are not for that reason illegal. Walker v. Stephens, 175 Ga. 405 , 165 S.E. 99 (1932).

Mandamus. - Court did not err in granting mandamus absolute requiring county treasurer to make entry on a county warrant issued by the ordinary (now judge of the probate court) in favor of petitioner indicating that the warrant was prevented and not paid for by lack of funds. Thompson v. Shurling, 184 Ga. 836 , 193 S.E. 880 (1937).

Cited in Hartley v. Nash, 157 Ga. 402 , 121 S.E. 295 (1924).

RESEARCH REFERENCES

C.J.S. - 20 C.J.S., Counties, § 405.

36-11-6. Negotiability of county orders.

All county orders are transferable by delivery or endorsement; and the endorser shall be liable according to the terms of his endorsement, as in commercial paper, provided that no transfer can take place so as to prevent a treasurer from setting off any sum that the payee may owe the county at the date of the order.

(Orig. Code 1863, § 534; Code 1868, § 598; Code 1873, § 560; Code 1882, § 560; Civil Code 1895, § 467; Civil Code 1910, § 583; Code 1933, § 23-1606.)

JUDICIAL DECISIONS

Sections 7-4-2 and 7-4-15 not repealed and construed in pari materia. - Former Code 1933, § 23-1604 et seq. (see now O.C.G.A. § 36-11-3 et seq.) did not expressly or by necessary implication repeal former Code 1933, §§ 57-101 and 57-110 (see now O.C.G.A. §§ 7-4-2 and 7-4-15 ). The statutes all were to be considered together, and when so considered, the sections first mentioned contemplate administrative action by the county officers in regard to the order in which lawful county orders shall be paid. Marion County v. First Nat'l Bank, 193 Ga. 263 , 18 S.E.2d 475 (1942).

Effect of endorsement. - Payee may have authorized the delivery of a warrant to the payee's son-in-law only for the purpose of safekeeping, yet, if at that time the warrant bore the payee's genuine signature as an endorsement thereon, the payee thereby gave to the depositary such external indicia of the right of disposing of the warrant that the depositary could, by pledging the same to an innocent person for a present consideration, divest the payee's title. Lilly v. Citizens' Bank & Trust Co., 44 Ga. App. 653 , 162 S.E. 639 (1932).

Discounting of warrants. - Inasmuch as the law authorizes a sale of county warrants and provides the method by which the vendor shall be liable to the vendee, and how the county shall be liable for interest, there is nothing illegal in the arrangement which was made between the county and the banks in discounting the legal warrants issued by the county. Southern Ry. v. Fulton County, 170 Ga. 248 , 152 S.E. 567 (1930).

An order or warrant is prima-facie evidence of indebtedness on the part of the county to the payee, transferee, or endorsee, of the validity of the claim for which the warrant is issued, and the burden of proving the warrant invalid is upon the commissioners or the ordinary (now judge of the probate court), as the case may be. Blue Island State Bank v. McRae, 169 Ga. 279 , 150 S.E. 151 (1929).

Subrogation of rights of maker of illegal loan to rights of warrant holder. - When a county incurs a lawful liability for a current expense, and issues a warrant on the treasury for the warrant's payment, and subsequently procures another to pay the warrant out of a loan which the other person makes to the county, upon disaffirmance of the illegal loan by the county the lender is subrogated to the rights of the warrant holder whose warrant was paid out of the proceeds of the illegal loan. Butts County v. Jackson Banking Co., 129 Ga. 801 , 60 S.E. 149 (1907).

RESEARCH REFERENCES

C.J.S. - 10 C.J.S., Bills and Notes, §§ 127, 129.

36-11-7. Satisfaction of judgment against county.

The private property of the citizens of a county shall not be bound by any judgment obtained against the county. Such judgment, if binding, shall be satisfied from money raised by lawful taxation.

(Orig. Code 1863, § 480; Code 1868, § 542; Code 1873, § 508; Code 1882, § 508; Civil Code 1895, § 363; Civil Code 1910, § 412; Code 1933, § 23-1603.)

JUDICIAL DECISIONS

Appropriation of moneys for liability policy premiums and for damages exceeding policy limits. - Board of commissioners must appropriate moneys for insurance premiums on any policy which might pay a plaintiff if plaintiff's suit is ultimately successful in plaintiff's claim against the county or must appropriate moneys to pay actual damages should plaintiff's recovery exceed the policy limits. Dodson v. Floyd, 529 F. Supp. 1056 (N.D. Ga. 1981).

RESEARCH REFERENCES

C.J.S. - 20 C.J.S., Counties, §§ 419, 420.

ALR. - County as subject to garnishment process, 60 A.L.R. 823 .

CHAPTER 12 SUPERVISION AND SUPPORT OF PAUPERS

Sec.

Cross references. - Provision of hospital care for the indigent generally, § 31-8-1 .

Establishment of county departments of family and children's services, § 49-3-1 .

36-12-1. General supervision of paupers.

The general supervision of all paupers is vested in the county governing authority.

(Laws 1792, Cobb's 1851 Digest, p. 346; Laws 1818, Cobb's 1851 Digest, p. 347; Code 1863, § 710; Code 1868, § 776; Code 1873, § 754; Code 1882, § 754; Civil Code 1895, § 426; Civil Code 1910, § 541; Code 1933, § 23-2101.)

JUDICIAL DECISIONS

Inquiry as to chargeability. - Until there has been some inquiry into the circumstances of the poor who will be treated as paupers and who shall become chargeable to the county, no persons can be properly said to be so chargeable. Justices of Inferior Court v. Chapman, 16 Ga. 89 (1854).

Confederate soldiers, referred to in the expression "indigent pensioners," as used in Ga. L. 1909, p. 17, § 2, cannot be classed as paupers. Clark v. Walton, 137 Ga. 277 , 73 S.E. 392 (1911).

RESEARCH REFERENCES

ALR. - Presumption and burden of proof of settlement in action by one town or poor district against another for support of pauper, 99 A.L.R. 457 .

Tort liability of municipality or other governmental subdivision in connection with poor relief activities, 134 A.L.R. 762 .

36-12-2. Eligibility for benefits.

No person who is able to maintain himself by labor or who has sufficient means shall be entitled to the benefits of the provision for the poor. In cases where women are unable to maintain themselves and the helpless children they may have, they may be aided to the extent required in the furnishing of food, clothing, or shelter.

(Orig. Code 1863, § 715; Code 1868, § 785; Code 1873, § 763; Code 1882, § 763; Civil Code 1895, § 438; Civil Code 1910, § 553; Code 1933, § 23-2301.)

JUDICIAL DECISIONS

Levy valid even if Act unconstitutional. - An item of a county tax levy for the "support of paupers," as provided under the Constitution, will not be enjoined on the ground that it is null and void, even if, as alleged, the moneys are to be expended as provided under an unconstitutional Act, unless it also appears that the levy itself is for some reason invalid. If the Act is invalid, the tax must nevertheless be levied. J.G. McCrory Co. v. Board of Comm'rs of Rds. & Revenues, 177 Ga. 242 , 170 S.E. 18 (1933) (decided under former Civil Code 1910, §§ 550 and 553.)

36-12-3. Duty of relatives to support paupers generally; right of county to recover from relatives for provisions furnished.

The father, mother, or child of any pauper contemplated by Code Section 36-12-2, if sufficiently able, shall support the pauper. Any county having provided for such pauper upon the failure of such relatives to do so may bring an action against such relatives of full age and recover for the provisions so furnished. The certificate of the judge of the probate court that the person was poor and was unable to sustain himself and that he was maintained at the expense of the county shall be presumptive evidence of such maintenance and the costs thereof.

(Orig. Code 1863, §§ 716, 717; Code 1868, §§ 786, 787; Code 1873, §§ 764, 765; Code 1882, §§ 764, 765; Civil Code 1895, §§ 439, 440; Civil Code 1910, §§ 554, 555; Code 1933, §§ 23-2302, 23-2303.)

Cross references. - Duty of parents to support child, § 19-7-2 .

Child Support Recovery Act, § 19-11-1 et seq.

Uniform Reciprocal Enforcement of Support Act, § 19-11-40 et seq.

JUDICIAL DECISIONS

Considering former Code 1933, §§ 23-2302 and 23-2303 (see now O.C.G.A. § 36-12-3 ) in connection with cognate sections, the words "any pauper contemplated by former Code 1933, § 23-2301 (see now O.C.G.A. § 36-12-2 )," refer to one who is completely destitute. Citizens & S. Nat'l Bank v. Cook, 182 Ga. 240 , 185 S.E. 318 (1936).

When mother must support children. - On the death of a father the duty of supporting the children devolves upon the mother, when the mother has the ability, and the infant child is without means, and is unable to earn a maintenance. Thompson v. Georgia Ry. & Power Co., 163 Ga. 598 , 136 S.E. 895 (1927).

Child must be destitute. - Child has no right to recover unless the child is completely destitute. Crane v. Crane, 225 Ga. 605 , 170 S.E.2d 392 (1969).

Mother's right of support from child. - Destitute mother being a pauper within the meaning of this section and having a son of sufficient ability to support her, has a right to such support from the son, and when the destitute mother has the right to support from her son, a court of equity may provide a remedy to enforce the right. Citizens & S. Nat'l Bank v. Cook, 182 Ga. 240 , 185 S.E. 318 (1936).

Wrongful birth damages. - In action for damages under federal wrongful birth claim, extraordinary expenses of the child's care are recoverable beyond the child's eighteenth birthday if the child will be completely destitute as Georgia law imposes the duty to support on parents of a destitute adult. Campbell v. United States, 795 F. Supp. 1118 (N.D. Ga. 1990), aff'd, 962 F.2d 1579 (11th Cir. 1992), cert. denied, 507 U.S. 909, 113 S. Ct. 1254 , 122 L. Ed. 2 d 653 (1993).

Confederate soldiers, referred to in the expression "indigent pensioners," as used in Ga. L. 1909, p. 173, § 2, cannot be classed as paupers. Clark v. Walton, 137 Ga. 277 , 73 S.E. 392 (1911).

Jurisdiction of petition for wife's support. - If a petition by a wife for support from her husband is considered as an action for alimony against the defendant husband, the petition must be brought in the county of his residence, and a court would be without jurisdiction of the cause in another county. Davenport v. Davenport, 215 Ga. 496 , 111 S.E.2d 57 (1959).

Cited in Owens v. Parham, 350 F. Supp. 598 (N.D. Ga. 1972); Still v. Still, 199 Ga. App. 723 , 405 S.E.2d 762 (1991).

RESEARCH REFERENCES

Am. Jur. 2d. - 79 Am. Jur. 2d, Welfare Laws, §§ 80 et seq., 89 et seq.

C.J.S. - 41 C.J.S., Husband and Wife, §§ 16, 66 et seq. 67A C.J.S., Parent and Child, §§ 44, 45.

ALR. - Liability of parent for dental services to minor child, 7 A.L.R. 1070 .

Criminal liability of father for failure to support child who is living apart from him without his consent, 23 A.L.R. 864 .

Survival of statutory liability for support of relative, 96 A.L.R. 537 .

Nature of care contemplated by statute imposing general duty to care for indigent relatives, 92 A.L.R.2d 348.

Constitutionality of statutory provision requiring reimbursement of public by child for financial assistance to aged parents, 75 A.L.R.3d 1159.

36-12-4. Liability of person sending pauper to county for support purposes.

Any inhabitant of any county, city, town, or village in or out of this state who sends a pauper to some county in this state by paying the expense of his transportation or otherwise has him removed for the purpose of burdening some other community shall be personally liable for the support of the pauper in the county where he locates. If the person who transports a pauper is insolvent or does not respond to such demand from any cause, the county from which the transportation took place shall be liable.

(Orig. Code 1863, §§ 718, 719; Code 1868, §§ 789, 790; Code 1873, §§ 767, 768; Code 1882, §§ 767, 768; Civil Code 1895, §§ 442, 443; Civil Code 1910, §§ 557, 558; Code 1933, §§ 23-2305, 23-2306.)

RESEARCH REFERENCES

Am. Jur. 2d. - 79 Am. Jur. 2d, Welfare Laws, § 86.

36-12-5. Interment or cremation of deceased indigents.

  1. Whenever any person dies in this state and the decedent, his or her family, and his or her immediate kindred are indigent and unable to provide for the decedent's decent interment or cremation, the governing authority of the county wherein the death occurs shall make available from county funds a sum sufficient to provide a decent interment or cremation of the deceased indigent person or to reimburse such person as may have expended the cost thereof voluntarily, the exact amount thereof to be determined by the governing authority of the county but shall not exceed the lesser of the actual costs of interment or cremation.
  2. The Department of Corrections is authorized to reimburse the governing authority of the county where expenditures have been made in accordance with this Code section for the burial or cremation of any inmate under the authority, jurisdiction, or control of the Department of Corrections; but in no case shall the governing authority of the county be entitled to reimbursement where the decedent was in the custody of a county correctional institution or other county correctional facility. (Ga. L. 1863-64, p. 60, § 1; Code 1868, § 788; Code 1873, § 766; Code 1882, § 766; Civil Code 1895, § 441; Civil Code 1910, § 556; Code 1933, § 23-2304; Ga. L. 1967, p. 616, § 1; Ga. L. 1972, p. 971, § 1; Ga. L. 1974, p. 616, § 1; Ga. L. 1978, p. 1048, § 1; Ga. L. 1980, p. 722, § 1; Ga. L. 1982, p. 2107, § 34; Ga. L. 1983, p. 3, § 27; Ga. L. 1985, p. 265, § 1; Ga. L. 1985, p. 283, § 1; Ga. L. 1991, p. 431, §§ 1, 2; Ga. L. 2013, p. 669, § 1/SB 83.) Notifying of commissioner of corrections and county coroner upon sudden death of inmate or death of inmate under unusual circumstances, § 42-5-7 .

Cross references. - Embalming, transportation, and care of bodies generally, T. 31, C. 21.

JUDICIAL DECISIONS

Coroner's right to reimbursement. - When a coroner, not officially but as an individual, caused dead paupers, the victims of a storm, to be buried decently, the coroner was entitled to be reimbursed by the county. Walker v. Sheftall, 73 Ga. 806 (1884).

OPINIONS OF THE ATTORNEY GENERAL

Nature of county's responsibility. - County has fulfilled the county's responsibility under this section when the county makes available from county funds at least $75.00, but not more than $125.00, to provide a decent interment for a deceased pauper; whether these funds are used to provide a lined pine coffin, plus normal burial expenses, or any other means of decent interment, is at the option of the county. 1971 Op. Att'y Gen. No. U71-129 (decided prior to 1991 amendment deleting provisions relating to minimum and maximum amounts from O.C.G.A. § 36-12-5 ).

CHAPTER 13 BUILDING, ELECTRICAL, AND OTHER CODES

Sec.

Cross references. - Adoption by counties and municipalities of the Georgia State Plumbing Code, the Georgia State Electrical Code, § 8-2-20 et seq. Local Government Code Enforcement Boards, § 36-74-1 et seq.

JUDICIAL DECISIONS

Authority of county to impose additional tax on building permits. - Ga. L. 1960, p. 560, § 1 et seq. does not give a county the authority to impose a tax or charge in addition to all charges currently imposed for building permits, when those funds are allocated directly to the board of education. DeKalb County v. Brown Bldrs. Co., 227 Ga. 777 , 183 S.E.2d 367 (1971).

36-13-1. Creation, adoption, amendment, and repeal of codes.

The county governing authority in this state is authorized to make, adopt, amend, and repeal building, housing, electrical, plumbing, gas, and other similar codes relating to the construction, livability, sanitation, erection, equipment, alteration, repair, occupancy, or removal of buildings and structures located outside of the corporate limits of any municipality in the county.

(Ga. L. 1961, p. 560, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d. - 13 Am. Jur. 2d, Buildings, §§ 2 et seq., 44.

ALR. - Rights of permittee under illegally issued building permit, 6 A.L.R.2d 960.

Zoning authority as estopped from revoking legally issued building permit, 26 A.L.R.5th 736.

36-13-2. Matters which may be covered by county codes.

The codes authorized in Code Section 36-13-1 may embrace such matters as the preparation and submission of plans and specifications; issuance of permits; standards governing the kind, quality, and performance of materials, equipment, and workmanship; establishment of fire zones; fireproofing; means of egress and ingress; floor area per occupant; and sanitary facilities and usage proceedings in connection with unsafe, unsanitary, or inadequate structures. The enumeration in this Code section shall not be construed as being exclusive.

(Ga. L. 1961, p. 560, § 2.)

RESEARCH REFERENCES

Am. Jur. 2d. - 13 Am. Jur. 2d, Buildings, § 13 et seq.

C.J.S. - 101A C.J.S., Zoning and Land Planning, § 255 et seq.

36-13-3. Adoption of codes by reference to national or regional codes.

The codes authorized in Code Section 36-13-1 may be adopted by reference to national or regional codes.

(Ga. L. 1961, p. 560, § 3.)

JUDICIAL DECISIONS

Cited in Wilson v. Auto-Owners Ins. Co., 159 Ga. App. 315 , 283 S.E.2d 308 (1981).

36-13-4. Contracts with other political subdivisions to issue building permits and enforce codes.

The county governing authority is permitted to contract with municipalities and other political subdivisions of the state possessing the authority to issue building permits and to enforce building, electrical, plumbing, gas, housing, and other similar codes, in order to administer efficiently the powers granted under this chapter.

(Ga. L. 1961, p. 560, § 4.)

RESEARCH REFERENCES

Am. Jur. 2d. - 56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, § 423 et seq.

36-13-5. Appointment of inspectors and assistants.

The county governing authority shall have the authority to appoint building, electrical, plumbing, gas, and housing inspectors for its county and to appoint such other assistants as the authority may deem necessary.

(Ga. L. 1961, p. 560, § 5.)

36-13-5.1. Issuance of citations for violation in certain counties; jurisdiction; warrant for arrest for failure to appear in response to citation.

In all counties of this state having a population of 550,000 or more according to the United States decennial census of 1970 or any future such census, any employee who is authorized to enforce any county code, ordinance, regulation, rule, or other order, including such related ordinances, codes, and regulations as drainage regulations, soil erosion and sedimentation control regulations, subdivision and zoning regulations, water and sewer regulations, and any other land development or construction regulations of such county, shall have the authority to issue citations to any person who shall violate any such county code, ordinance, regulation, or order which shall be in effect in such counties. Such citations shall command the appearance of such person at a designated regular session of a court in such county having the jurisdiction of a commitment court throughout the entire county. At such time and place such court shall act as a court of inquiry with all the powers and authorities as specified in Code Section 17-8-5. In the event that any such person shall fail to appear in response to a citation, a warrant shall be issued for the arrest of such person for violation of such county code, ordinance, regulation, rule, or order without the necessity of any further action.

(Ga. L. 1981, p. 3261, § 1; Code 1981, § 36-13-5.1 , enacted by Ga. L. 1982, p. 2107, § 35; Ga. L. 1983, p. 3, § 27; Ga. L. 1987, p. 3, § 36.)

36-13-6. Promulgation of rules and regulations concerning permits and inspections; establishment of fees or charges.

The county governing authority shall have the authority to make rules and regulations concerning permits for and inspections of construction equipment and the alteration, repair, or removal of buildings, signs, and other structures outside the corporate limits of municipalities located in its county. It may prescribe fees or charges for permits and inspections, which fees shall be fixed and charged by the governing authority and shall be paid to the county treasurer by the applicant for such permits or inspections.

(Ga. L. 1961, p. 560, § 6.)

RESEARCH REFERENCES

Am. Jur. 2d. - 13 Am. Jur. 2d, Buildings, § 9 et seq.

C.J.S. - 101A C.J.S., Zoning and Land Planning, §§ 64, 65, 131, 255, 256.

36-13-7. Areas to which codes, rules, and regulations may be made applicable.

The county governing authority shall have the authority to make such codes, rules, and regulations as are permitted under this chapter for:

  1. The entire unincorporated area of the county;
  2. Any militia district within the unincorporated area of the county;
  3. Any land lot;
  4. Any land and water areas 500 feet wide on either side of any state or county highway or any section of such highway within the unincorporated area of the county;
  5. Any land or water areas 500 feet wide on either side of any water line of the stream or water reservoir or section thereof within the unincorporated area of the county; or
  6. Any portion of the unincorporated area of the county lying within a specified distance of the boundaries of a municipality in the county.

    (Ga. L. 1961, p. 560, § 8.)

36-13-8. Notice and hearing prior to enactment of codes, rules, or regulations.

Before enacting any of the codes, rules, or regulations permitted in this chapter, the county governing authority shall hold a public hearing thereon. At least 15 days' notice of the time and place of the hearing shall be published in a newspaper of general circulation in the county.

(Ga. L. 1961, p. 560, § 7.)

RESEARCH REFERENCES

C.J.S. - 101A C.J.S., Zoning and Land Planning, § 14.

ALR. - What constitutes newspaper of "general circulation" within meaning of state statutes requiring publication of official notices and the like in such newspaper, 24 A.L.R.4th 822.

36-13-9. Appropriation and expenditure of funds.

The county governing authorities are authorized to appropriate and expend funds for the purposes of this chapter.

(Ga. L. 1961, p. 560, § 12.)

36-13-10. Remedies for actual or proposed violations of codes, rules, or regulations.

When any violation of any of the codes, rules, and regulations which are adopted by the county governing authority under this chapter is or is proposed to be committed, the inspectors appointed under this chapter, the county attorney, some other appropriate authority of the county, or any adjacent or neighboring property owner who would be damaged by the violation, in addition to other remedies, may institute injunction, mandamus, or other appropriate action or proceeding to prevent, correct, or abate the violation or threatened violation.

(Ga. L. 1961, p. 560, § 11.)

RESEARCH REFERENCES

C.J.S. - 101A C.J.S., Zoning and Land Planning, § 432 et seq.

36-13-11. Compliance as prerequisite to issuance of permit; failure to secure required permit.

Full compliance with all rules, regulations, and requirements set up under this chapter shall be a prerequisite to issuance of any permit. Failure to secure such permit as is required is declared to be a misdemeanor.

(Ga. L. 1961, p. 560, § 9.)

RESEARCH REFERENCES

Am. Jur. 2d. - 13 Am. Jur. 2d, Buildings, § 8 et seq.

C.J.S. - 101A C.J.S., Zoning and Land Planning, § 255 et seq.

36-13-12. Criminal penalty for violations of codes, rules, or regulations.

The violation of any of the codes, rules, and regulations adopted by the county governing authority under this chapter is declared to be a misdemeanor. Any person violating any such codes, rules, and regulations shall be guilty of a misdemeanor. Each and every day such violation continues shall be deemed a separate offense.

(Ga. L. 1961, p. 560, § 10.)

RESEARCH REFERENCES

C.J.S. - 101A C.J.S., Zoning and Land Planning, § 449 et seq.

CHAPTER 14 COUNTY BRIDGES

Sec.

Cross references. - Acquisition of property by counties and municipalities for transportation purposes generally, T. 32, C. 3.

Bridge repair bonds, § 32-4-70 et seq.

36-14-1. Erection of bridges across navigable streams.

The consent of the state is given to and authority is vested in the county governing authority to erect bridges across the navigable streams that lie wholly within the state, whenever in the judgment of the county governing authority the public interest may be subserved thereby, upon its compliance with the law of Congress requiring the approval of the secretary of transportation and the chief of engineers of the United States, as embodied in the statutes of the United States passed by the Fifty-fifth Congress and approved March 3, 1899.

(Ga. L. 1904, p. 100, § 1; Civil Code 1910, § 427; Code 1933, § 23-2004.)

U.S. Code. - The federal Act referred to in this Code section is codified at 33 U.S.C. §§ 401, 403.

RESEARCH REFERENCES

Am. Jur. 2d. - 39 Am. Jur. 2d, Highways, Streets, and Bridges, §§ 44 et seq., 92 et seq.

C.J.S. - 11 C.J.S., Bridges, § 4 et seq.

36-14-2. Building and maintaining bridges over rivers bordering adjacent states.

Counties lying adjacent to any river on the border or forming the boundary between this state and another shall have the same power, acting by and through the proper county authorities, to build and maintain bridges over such river as the counties now have to build and maintain bridges over streams lying wholly within their borders, provided that this power shall not be exercised except to cooperate with the proper authorities of the adjacent state in building and maintaining such bridges, on the principle that each state is to build simultaneously from its own bank to the middle of the river and afterwards to maintain and keep up the part of the bridge which it has built; and provided, further, that no bridge shall be erected under this Code section at any point where the river exceeds, at low-water mark, 2,000 feet in breadth.

(Ga. L. 1895, p. 78, § 1; Civil Code 1895, § 372; Civil Code 1910, § 424; Ga. L. 1920, p. 62, § 1; Code 1933, § 23-2001; Ga. L. 1987, p. 3, § 36.)

JUDICIAL DECISIONS

Cited in Havird v. Richmond County, 47 Ga. App. 580 , 171 S.E. 220 (1933).

36-14-3. Contracts with federal government for bridges across streams bordering land ceded to United States.

  1. The county governing authority may contract and pay out of the funds of the county such sums of money as it deems equitable and just to the authorities of the United States for the county's fair proportion of the cost of building any bridge which it deems necessary to erect across any stream dividing the county or some part thereof from lands over which the jurisdiction has been ceded to the government of the United States for any purpose, provided that it shall thereafter be the duty of the authorities of the United States to keep such bridges in repair, to renew them as often as may be necessary, and to keep them open for the free and uninterrupted travel of the public.
  2. The United States is vested with full and complete jurisdiction over grounds necessary for the erection of piers and approaches to such bridges on each side of such streams, so far as may be necessary for the erection, repair, and protection of the bridges and approaches.

    (Ga. L. 1895, p. 76, §§ 1, 2; Civil Code 1895, §§ 373, 374; Civil Code 1910, §§ 425, 426; Code 1933, §§ 23-2002, 23-2003.)

RESEARCH REFERENCES

Am. Jur. 2d. - 39 Am. Jur. 2d, Highways, Streets, and Bridges, § 45.

CHAPTER 15 COUNTY LAW LIBRARY

Sec.

Cross references. - County and regional public libraries, § 20-5-40 et seq.

OPINIONS OF THE ATTORNEY GENERAL

Assistant district attorneys eligible to serve on library board. - Assistant district attorneys are practicing attorneys within the meaning of Ga. L. 1971, p. 180, § 1 et seq.; therefore, an assistant district attorney is eligible to serve as a member of the board of trustees of a county law library. 1973 Op. Att'y Gen. No. U73-112.

36-15-1. Board of trustees created in each county; composition; chairperson; quorum.

There is created in each county in this state a board to be known as the board of trustees of the county law library, hereafter referred to as the board. The board shall consist of the chief judge of the superior court of the circuit in which the county is located; the judge of the probate court; the senior judge of the state court, if any; the chief judge of the magistrate court; the district attorney of the circuit in which the county is located; a solicitor-general of the state court, if any; the clerk of the superior court; and two practicing attorneys of the county. The practicing attorneys shall be selected by the other trustees and shall serve at their pleasure. All of the trustees shall serve without pay. The chief judge of the superior court shall be chairperson of the board. A majority of the members of the board shall constitute a quorum for the purpose of transacting all business that may come before the board.

(Ga. L. 1971, p. 180, § 1; Ga. L. 1973, p. 430, § 1; Ga. L. 1997, p. 392, § 1; Ga. L. 2016, p. 435, § 2/HB 851; Ga. L. 2017, p. 548, § 1/HB 453.)

The 2017 amendment, effective July 1, 2017, inserted "the chief judge of the magistrate court;" in the middle of the second sentence.

36-15-2. Secretary-treasurer of board; designation and compensation of librarian.

  1. There is created an office to be known as secretary-treasurer of the board of trustees of the county law library in each county. The secretary-treasurer shall be selected and appointed by the board and shall serve at the pleasure of the board. The board may appoint one of its own members as secretary-treasurer or, in its discretion, may designate some other person to act as secretary-treasurer of the board. The secretary-treasurer of the board shall perform the duties provided for the treasurer in this chapter.
  2. The board of trustees may designate the judge of the probate court or a deputy clerk of the superior court of each county to act as librarian; any such official shall not receive any additional compensation for the performance of such duties. The board, however, in its discretion, may designate some other person to act as librarian and shall fix the compensation for such person.

    (Ga. L. 1971, p. 180, § 2; Ga. L. 1973, p. 430, § 2; Ga. L. 1976, p. 700, § 1.)

OPINIONS OF THE ATTORNEY GENERAL

Dual capacity prohibited. - Librarian designated and compensated under this section may not serve in dual capacity as librarian-secretary. 1975 Op. Att'y Gen. No. U75-16.

36-15-3. Bond of secretary-treasurer.

The secretary-treasurer of the board shall give a good and sufficient surety bond, payable to the county, in such an amount as may be determined by the board, to account faithfully for all funds received and disbursed by him. The premium on the bond shall be paid out of the county law library fund.

(Ga. L. 1971, p. 180, § 8.)

RESEARCH REFERENCES

C.J.S. - 20 C.J.S., Counties, § 160.

36-15-4. Powers and duties of board of trustees generally.

The board of trustees is given the following powers and duties:

  1. To provide for the collection of all money provided for in this chapter;
  2. To select the books, reports, texts, and periodicals;
  3. To make all necessary rules and regulations governing the use of the library;
  4. To keep records of all its meetings and proceedings;
  5. To exercise all other powers necessary for the proper administration of this chapter; and
  6. To enter into agreements with the boards of trustees of other county law libraries within the same judicial circuit for the purpose of pooling funds to purchase books, reports, texts, and periodicals and to purchase or lease computer related research equipment and programs; to provide for the joint use of such books, reports, texts, periodicals, and computer related research equipment and programs within the same judicial circuit; and to provide where said books, reports, texts, periodicals, and computer related research equipment and programs may be maintained.

    (Ga. L. 1971, p. 180, § 4; Ga. L. 1994, p. 1923, § 1.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1994, "computer related" was substituted for "computer-related" in three places in paragraph (6).

36-15-5. Control, deposit, and investment of funds.

The board shall have control of the funds provided for in this chapter. All funds received shall be deposited in a special account to be known as the county law library fund. The board shall have authority to expend the funds in accordance with this chapter and to invest any of the funds so received in any investments which are legal investments for fiduciaries in this state.

(Ga. L. 1971, p. 180, § 3.)

36-15-6. Receipt and investment of money and property.

The board may take, by gift, grant, devise, or bequest, any money, real or personal property, or other thing of value and may hold or invest the same for the uses and purposes of the library.

(Ga. L. 1971, p. 180, § 5.)

RESEARCH REFERENCES

C.J.S. - 20 C.J.S., Counties, § 219 et seq.

36-15-7. Use of funds.

  1. The money paid into the hands of the treasurer of the board of trustees of the county law library shall be used for the purchase of law books, reports, texts, periodicals, supplies, desks, and equipment and for the maintenance, upkeep, and operation of the law library, including the services of a librarian and, within the discretion of the board of trustees, payment for purchases made by a county's superior court, state court, probate court, magistrate court, or juvenile court, and for the purchase or leasing of computer related legal research equipment and programs, and, at the discretion of the county governing authority, for the establishment and maintenance of the codification of county ordinances. However, the amount transferred to the county governing authority for codification pursuant to this subsection shall not exceed the cost of establishing or maintaining the codification.
  2. In addition to the uses specified in subsection (a) of this Code section, the board of trustees of a county law library shall be authorized to use funds to establish a law library or libraries for the judges of the superior courts of the judicial circuit and for the judges of the state court in which the county lies. A request for the establishment of one or more such libraries shall be made to the board of trustees by the chief judge of the judicial circuit with the assent of a majority of the superior court judges of the circuit or by the chief judge of the state court of the county with the assent of a majority of the state court judges of the county. Additionally, the probate judge, chief magistrate, presiding juvenile court judge, or any chief judge of any county court may make a similar request. It shall be in the discretion of the board of trustees of each county whether to grant such a request. Any one or more county boards of trustees in the judicial circuit may participate in the establishment of the law library or libraries and, for the purpose of such participation, may enter into agreements regarding the proportional share of expenditures to be borne by each county board of trustees. Purchases made from county law library funds under this subsection shall not duplicate the law books and materials supplied to each judge by the state or by other sources. Such purchases shall become the property of the judge who requested the purchase and shall be passed on to his or her successor in office.
  3. In the event the board of trustees determines in its discretion that it has excess funds, such funds as may be designated by the board of trustees shall be disbursed by the board of trustees to charitable tax-exempt organizations which provide civil legal representation for low-income people; used to purchase software, equipment, fixtures, or furnishings for any office related to county judicial facilities or services, including, but not limited to, courtrooms and jury rooms; or turned over to the county commissioners and used by the county commissioners for the purchase of software, equipment, fixtures, or furnishings for the courthouse.
  4. Except as provided in subsection (b) of this Code section, all law books, reports, texts, and periodicals purchased by the use of gifts and from the funds of the county law library shall become the property of the county.

    (Ga. L. 1971, p. 180, § 7; Ga. L. 1973, p. 430, § 4; Ga. L. 1982, p. 1103, § 1; Ga. L. 1983, p. 3, § 27; Ga. L. 1987, p. 843, § 1; Ga. L. 1994, p. 1923, § 2; Ga. L. 1997, p. 392, § 2; Ga. L. 2000, p. 865, § 1; Ga. L. 2002, p. 785, § 1; Ga. L. 2010, p. 555, § 1/HB 858; Ga. L. 2016, p. 435, § 3/HB 851.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1994, "computer related" was substituted for "computer-related" in the first sentence of subsection (a).

OPINIONS OF THE ATTORNEY GENERAL

Subscription to computer assisted legal research. - County law libraries may execute base subscription agreements for computer assisted legal research and purchase or lease related equipment. 1983 Op. Att'y Gen. No. U83-22.

36-15-8. Furnishing of space and utilities by county governing authority.

The county governing authority shall furnish necessary space, offices, lights, heat, and water for the maintenance of the county law library.

(Ga. L. 1976, p. 700, § 3.)

36-15-9. Collection of additional costs in court cases; amount; determination of need as prerequisite to collection; collection in certain criminal cases.

  1. For the purpose of providing funds for those uses specified in Code Section 36-15-7, a sum not to exceed $5.00, in addition to all other legal costs, may be charged and collected in each action or case, either civil or criminal, including, without limiting the generality of the foregoing, all adoptions, certiorari, applications by personal representatives for leave to sell or reinvest, trade name registrations, applications for change of name, and all other proceedings of civil or criminal or quasi-criminal nature, filed in the superior, state, probate, and any other courts of record, except county recorders' courts or municipal courts. The amount of such additional costs to be charged and collected, if any, in each such case shall be fixed by the chief judge of the superior court of the circuit in which such county is located. Such additional costs shall not be charged and collected unless the chief judge first determines that a need exists for a law library in the county. The clerk of each and every such court in such counties in which such a law library is established shall collect such fees and remit the same to the treasurer of the board of trustees of the county law library of the county in which the case was brought, on the first day of each month. Where fees collected by the treasurer have been allocated for the purpose of establishing or maintaining the codification of county ordinances, the allocated amount shall in turn be remitted by the treasurer to the county governing authority for said purpose on a monthly basis or as otherwise agreed by the treasurer and the county governing authority. The county ordinance code provided for in subsection (a) of Code Section 36-15-7 shall be maintained by the county governing authority. When the costs in criminal cases are not collected, the cost provided in this Code section shall be paid from the fine and bond forfeiture fund of the court in which the case is filed, before any other disbursement or distribution of such fines or forfeitures is made.

    (a.1) In any county having a population of more than 550,000 according to the United States decennial census of 1980 or any future such census, the power and authority provided in subsection (a) of this Code section for the chief judge shall be exercised by the superior court judge who has the most service as a superior court judge.

  2. A case, within the meaning of subsection (a) of this Code section, shall mean and be construed as any matter which is docketed upon the official dockets of the enumerated courts and to which a number is assigned, whether such matter is contested or not.
  3. Reserved.
  4. Notwithstanding that provision of subsection (a) of this Code section which excepts recorders' courts from the requirement of charging and collecting the additional costs provided for by said subsection (a), said subsection (a) and subsection (b) of this Code section shall be applicable to the recorder's court of each county of this state having a population of not less than 200,000 nor more than 275,000 according to the United States decennial census of 1980 or any future such census.
  5. Notwithstanding that provision of subsection (a) of this Code section which excepts county recorders' courts and municipal courts from the requirement of charging and collecting the additional costs provided for by that subsection (a), subsections (a) and (b) of this Code section shall apply to any municipal court of a municipality if the governing authority thereof, by ordinance or resolutions, approves the charging and collecting of such costs pursuant to subsections (a) and (b) of this Code section.
  6. Reserved.
  7. In counties where a law library authorized by this chapter has not been established, upon request of the county governing authority, the chief judge of a circuit shall direct that the fees authorized by this Code section be charged and collected for the purpose of the establishment and maintenance of the codification of county ordinances. However, the amount transferred to the county governing authority pursuant to this subsection shall not exceed the cost of establishing or maintaining the codification. The clerk of each and every court in such counties in which costs are collected for the purpose of carrying out the provisions of this subsection shall remit the same to the county governing authority on the first day of each month. The county ordinance code provided for in this subsection shall be maintained by the county governing authority. When the costs in criminal cases are not collected, the cost provided in this Code section shall be paid from the fine and bond forfeiture fund of the court in which the case is filed before any other disbursement or distribution of such fines or forfeitures is made.

    (Ga. L. 1971, p. 180, §§ 6, 9; Ga. L. 1973, p. 430, § 3; Ga. L. 1976, p. 700, § 2; Ga. L. 1982, p. 520, §§ 1, 2; Ga. L. 1982, p. 591, § 1; Ga. L. 1982, p. 1103, § 2; Ga. L. 1983, p. 3, § 27; Ga. L. 1985, p. 999, § 1; Ga. L. 1987, p. 3, § 36; Ga. L. 1987, p. 843, § 2; Ga. L. 1991, p. 1324, § 6; Ga. L. 1993, p. 91, § 36; Ga. L. 1994, p. 237, § 2; Ga. L. 1994, p. 1923, § 3; Ga. L. 1997, p. 392, §§ 3, 4; Ga. L. 1999, p. 81, § 36; Ga. L. 2000, p. 865, § 2; Ga. L. 2015, p. 693, § 3-33/HB 233; Ga. L. 2016, p. 435, § 4/HB 851.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1986, "recorders'" was substituted for "recorder's" in subsection (e).

Editor's notes. - Ga. L. 2015, p. 693, § 4-1/HB 233, not codified by the General Assembly, provides that: "This Act shall become effective on July 1, 2015, and shall apply to seizures of property for forfeiture that occur on or after that date. Any such seizure that occurs before July 1, 2015, shall be governed by the statute in effect at the time of such seizure."

Law reviews. - For article on the 2015 amendment of this Code section, see 32 Ga. St. U. L. Rev. 1 (2015).

OPINIONS OF THE ATTORNEY GENERAL

Costs not authorized in addition to costs for filing articles of incorporation. - Clerks of superior courts are not authorized to collect costs in support of county law libraries as authorized in Ga. L. 1976, p. 700, § 2 (see now O.C.G.A. § 36-15-9 ) in addition to those costs set forth in former Code 1933, § 22-803 (see now O.C.G.A. § 14-2-122(1)) for the filing of articles of incorporation. 1977 Op. Att'y Gen. No. 77-23.

Surcharge is an additional penalty to be added to the fine. 1996 Op. Att'y Gen. No. U96-8.

Section applicable to probate courts. - Probate court is expressly authorized to collect costs in support of county law libraries in all actions specified by O.C.G.A. § 36-15-9 . 1988 Op. Att'y Gen. No. U88-3.

Actions filed under Family Violence Act. - Clerk of the superior court would be authorized to collect costs in support of county law libraries as authorized by the chief judge in any action filed under the Family Violence Act, O.C.G.A. § 19-13-1 et seq. 1988 Op. Att'y Gen. No. U88-11.

36-15-10. Prior actions, decisions, contracts, and purchases of boards prior to March 19, 1971, ratified.

All actions, decisions, contracts, and purchases made by any board of trustees of a county law library or any other person charged with the responsibility of operating or maintaining a county law library under any law of this state enacted prior to March 19, 1971, are ratified.

(Ga. L. 1971, p. 180, § 10.)

36-15-11. Receipt and disbursement of funds by counties having population of 950,000 or more.

Reserved. Repealed by Ga. L. 2019, p. 723, § 1/HB 134, effective May 7, 2019.

Editor's notes. - This Code section was based on Ga. L. 1981, p. 959, § 1; Ga. L. 2001, p. 1031, § 1; Ga. L. 2010, p. 555, § 3/HB 858.

36-15-12. Applicability to city court of city having population of 300,000 or more.

Notwithstanding any other provision of this chapter, this chapter shall not apply to a city court, which is authorized to try state traffic offenses, of any city of this state having a population of 300,000 or more according to the United States decennial census of 1980 or any future such census.

(Ga. L. 1982, p. 586, § 1; Code 1981, § 36-15-12 , enacted by Ga. L. 1982, p. 586, § 2.)

36-15-13. Annual audit required.

Each board created pursuant to this chapter shall, at the end of each fiscal year for the preceding year, have an annual audit of its financial affairs, books, and accounts performed by the county accountant as employed pursuant to Code Section 36-1-10; the internal auditor employed by the governing authority of the county, if such internal auditor is a certified public accountant; or a certified public accountant. The determination of the performance of such audit by the county accountant, the internal auditor, or a certified public accountant shall be made by the board. Such audit shall be conducted in accordance with generally accepted accounting principles, including, but not limited to, a report on whether the control, deposit, and investment of funds, the receipt and investment of money and property, and the use of funds by such board have been conducted as provided for under this chapter. A copy of such audit shall be made available to the governing authority of the county and shall be a public document.

(Code 1981, § 36-15-13 , enacted by Ga. L. 2016, p. 435, § 5/HB 851.)

CHAPTER 16 COUNTY HISTORICAL CONTAINER

Sec.

36-16-1. Furnishing of historical container.

The county governing authority shall furnish, purchase, or cause to be furnished or purchased a suitable filing case or other container to be placed in the office of the judge of the probate court of the county and labeled "Historical."

(Ga. L. 1935, p. 383, § 1.)

36-16-2. Receipt of historical data for preservation in container.

The judge of the probate court of the county shall be required to receive from any responsible citizen or citizens any data of a historical nature and place the same on file in the historical container provided for in Code Section 36-16-1, for safe preservation and historical reference. The matter to be entered for preservation must be of general interest and not of a personal nature; it may include records, proceedings, or minutes of any religious body or organization; school records not otherwise preserved; records of civic, patriotic, or fraternal organizations; and records of purely community affairs when of such nature as to be of general interest and not otherwise recorded by court procedure.

(Ga. L. 1935, p. 383, § 2.)

36-16-3. Determination of admissibility of documents submitted for filing; deposit of documents relating to soldiers and widows.

The judge of the probate court and the county board of education are made the sole judges of the admissibility of any matter or document which may be submitted to the judge of the probate court for filing, should any question arise as to the historical value of such matter or document so submitted; and the judge of the probate court and the board of education sitting in regular session shall have authority to accept or reject any matter so submitted, provided that the judge of the probate court shall be required to deposit in the historical container all documents in his office pertaining to records of Confederate soldiers and widows of such soldiers, as well as soldiers and their surviving spouses of all other wars of our nation, a record of which he may have in his office, and to make proper notations thereof in the book of record.

(Ga. L. 1935, p. 383, § 4.)

36-16-4. Maintenance of record and index; fee for filing of documents.

The judge of the probate court shall be required to keep a suitable record and index in a book prepared for that purpose of all matter placed in the historical container, with notations as to the nature of the matter on file, by whom, and when placed on file. He shall be entitled to a fee of 25 › , payable by the person filing such historical matter, for each article or document so deposited by such person for preservation with him, provided that the county historian may submit documents for preservation without payment of a fee to the judge of the probate court.

(Ga. L. 1935, p. 383, §§ 3, 4.)

36-16-5. Applicability of chapter.

This chapter shall not become operative in any county of this state until it has been adopted and recommended by a majority vote of two successive regular grand juries of the county.

(Ga. L. 1935, p. 383, § 5.)

CHAPTER 17 GRANTS OF STATE FUNDS TO COUNTIES

Article 1

Grants for Public Purposes Based upon Road Mileage.

Article 2

Grants to Counties for County Roads and Maintenance.

Cross references. - Grants by state to county and municipal hospital authorities, § 31-7-94 .

ARTICLE 1 GRANTS FOR PUBLIC PURPOSES BASED UPON ROAD MILEAGE

36-17-1. Legislative purpose and intent.

It is declared to be the purpose and intent of the General Assembly that state funds be made available to the governing authorities of the counties of this state to be expended for any public purposes.

(Ga. L. 1967, p. 888, § 1.)

RESEARCH REFERENCES

C.J.S. - 81A C.J.S., States, § 404 et seq.

36-17-2. Computation of individual county grants.

To the extent that funds are made available by the budget authorities pursuant to the general appropriations Acts or any other laws for the purposes set out in Code Section 36-17-1, except for the grants to counties which are appropriated as a part of the appropriation to the Department of Transportation designated "For grants to counties for aid in county road construction and maintenance," the Office of the State Treasurer is authorized and directed to grant such funds to the counties of this state in the same proportion which the total public road mileage of each county bears to the total public road mileage in the state, as such mileage information is furnished by the Department of Transportation. The computation of individual county grants, as provided for in this Code section, shall be prepared and certified by the state treasurer, who shall make such payments.

(Ga. L. 1967, p. 888, § 2; Ga. L. 1993, p. 1402, § 18; Ga. L. 2010, p. 863, §§ 2, 3/SB 296.)

OPINIONS OF THE ATTORNEY GENERAL

Use of funds for social security. - Appropriated grant moneys allocated to a county under the authority of this section may be withheld by the Department of Administrative Services and released to the Employees' Retirement System of Georgia to protect the system from delinquent social security reports and remittances for which the county is liable. 1975 Op. Att'y Gen. No. 75-65.

36-17-3. Disbursement and expenditure of funds.

Funds distributed under this article by the Office of the State Treasurer shall be paid to the counties in the name of the county treasurer or other fiscal authority authorized to receive county funds. Such funds shall be expended by the county only for the purposes prescribed in Code Section 36-17-1.

(Ga. L. 1967, p. 888, § 3; Ga. L. 1993, p. 1402, § 18; Ga. L. 2010, p. 863, § 2/SB 296.)

ARTICLE 2 GRANTS TO COUNTIES FOR COUNTY ROADS AND MAINTENANCE

Cross references. - Schedule of amounts of money to be appropriated to counties for use exclusively for construction and maintenance of public roads, § 48-14-3 .

JUDICIAL DECISIONS

Constitutionality of Ga. L. 1973, p. 475. - Georgia Laws 1973, p. 475, which authorized the grant of state funds "to aid in the construction of county roads and maintenance thereof," to the counties of the state, upon each county's providing a property tax credit in accordance with formulas prescribed in the Act, was a constitutionally permissible legislative grant, and did not violate the due process or equal protection provisions of the Constitution of Georgia or the United States. Brown v. Wright, 231 Ga. 686 , 203 S.E.2d 487 (1974).

Provision in Ga. L. 1973, p. 475 that no county was eligible to receive any funds unless a tax credit was given on homesteads first and then on tangible property (exclusive of motor vehicles and trailers), in accordance with the formulas prescribed in the Act, was not a forbidden gratuity within the meaning of the Georgia Constitution. Brown v. Wright, 231 Ga. 686 , 203 S.E.2d 487 (1974).

RESEARCH REFERENCES

C.J.S. - 81A C.J.S., States, § 404 et seq.

36-17-20. Authorization of grants.

Pursuant to the authority granted to the General Assembly in Article III, Section IX, Paragraph II(c) of the Constitution of Georgia and in order to provide for a more effective management and fiscal administration of the state and pursuant to Article III, Section IX, Paragraph VI(b) of the Constitution of Georgia, in order to provide funds to counties to aid in the construction and maintenance of county roads and, in addition to funds provided pursuant to other laws, there may be allotted to each county annually for county road construction and maintenance certain grants as provided in Code Sections 36-17-21 and 36-17-22.

(Ga. L. 1973, p. 475, § 1; Ga. L. 1975, p. 1079, § 1; Ga. L. 1983, p. 3, § 57; Ga. L. 1985, p. 149, § 36.)

36-17-21. Allocation of funds; grant of tax credit to homesteads as prerequisite to receipt of funds; use of surplus funds.

  1. In any year in which the General Assembly appropriates by line item, and with reference to this Code section, funds necessary to provide grants to counties to aid in the construction and maintenance of county roads, such grants shall be allotted to each county pro rata according to each county's share of the total number of homesteads in the state for the immediately preceding year. For purposes of this Code section and Code Section 36-17-22, the term "homestead" shall mean and include all that tangible property upon which an ad valorem property tax homestead exemption was claimed and allowed.
  2. In order to provide better fiscal management, the funds provided pursuant to this Code section are intended to be utilized for the relief of ad valorem taxation on tangible property. No county shall be entitled to receive any of the funds provided for in this Code section unless and until a credit against county ad valorem property taxes levied and expended by the county governing authority is granted by the governing authority of the county to each homestead located within the county. Each credit shall equal an amount computed as follows: the amount of the grant allotted, pursuant to this Code section, to the county to aid in the construction and maintenance of county roads, divided by the number of homesteads in the county.
  3. No credit granted pursuant to this Code section shall exceed one-half of the credit recipient's total tax liability for county ad valorem property taxes levied and expended by the county governing authority.
  4. If a surplus remains from the funds allotted to such county by this Code section after complying with this Code section, such remaining funds shall be deemed appropriated and allotted to the county under Code Section 36-17-22.

    (Ga. L. 1973, p. 475, § 3; Ga. L. 1975, p. 1079, § 2; Ga. L. 1982, p. 3, § 36.)

36-17-22. Allocation of funds; grant of credit on certain tangible property taxes as prerequisite to receipt of funds.

  1. In any year in which the General Assembly appropriates by line item, and with reference to this Code section, funds necessary to provide grants to counties to aid in the construction and maintenance of county roads, such grants shall be allotted to each county pro rata according to each county's share of the total number of homesteads in the state for the immediately preceding year.
  2. In order to provide better fiscal management, the funds provided pursuant to this Code section are intended to be utilized for the relief of ad valorem taxation on tangible property. No county shall be entitled to receive any of the funds provided for in this Code section unless and until a credit against county ad valorem property taxes levied and expended by the county governing authority is granted by the governing authority of the county to all eligible tangible property, as defined in subsection (c) of this Code section, except motor vehicles and trailers, located within the county. Each credit shall equal an amount computed as follows: a pro rata share of the sum of the grant allotted, pursuant to this Code section, to the county to aid in the construction and maintenance of county roads and the surplus, if any, from the funds allotted to such county by subsection (a) of Code Section 36-17-21, after compliance by the county with the provisions of subsection (b) of Code Section 36-17-21.
  3. As used in this Code section, the term "eligible tangible property" means all tangible property except that tangible property required to be returned to and assessed by the state revenue commissioner pursuant to statutes passed by the General Assembly under the authority of Article VII, Section I, Paragraph III of the Constitution of Georgia.

    (Ga. L. 1975, p. 1079, § 3; Ga. L. 1982, p. 3, § 36.)

36-17-23. Limits on granting of credits; claim and certification of credits by taxpayer; recovery of credits erroneously or illegally granted; payment of tax liability prerequisite to credit.

  1. No credit or combination of credits granted pursuant to this article shall exceed the lesser of (1) $1,000.00 or (2) the credit recipient's total tax liability for county ad valorem property taxes levied and expended by the county governing authority. No credit authorized by such Code sections shall be granted unless the taxpayer claims his entitlement to such credit and certifies that the sum of all such credits so claimed by him does not exceed $1,000.00. The state revenue commissioner shall provide by regulation for the forms and procedures by which taxpayers shall claim credits and certify the sum thereof. The governing authorities of the various counties shall make available to the taxing authorities of such counties funds sufficient to defray the administrative costs of this article. Any person who, with intent to receive credit not authorized by this article, claims a credit to which he is not lawfully entitled or falsely certifies the sum of credits claimed by him shall be guilty of a misdemeanor. Any credit erroneously or illegally granted, whether due to negligence or any other cause, shall be recoverable by the county granting such credit in the same fashion as any other delinquent property tax.
  2. No credit authorized under this article shall be granted to any taxpayer unless the taxpayer pays his then current tax liability for county ad valorem property taxes levied and expended by the county governing authority on or before the date such liability becomes due. However, in order to comply with this subsection, the governing authority of any county may, by appropriate resolution, extend the date that such tax liability becomes due.

    (Ga. L. 1975, p. 1079, § 4.)

36-17-24. Credits and surplus to be shown on tax bills; disbursal of funds on certification of state revenue commissioner.

The taxing authority of each county receiving funds pursuant to this article shall show in a prominent manner on the tax bill of each ad valorem taxpayer the dollar amount of credit against ad valorem property taxes which the taxpayer is receiving as a result of the funds allocated and shall show that such credit is a result of the passage of such Code sections by the General Assembly. Each such tax bill shall also show in a prominent manner the amount of any surplus, from the funds allotted to the county by such Code sections, after compliance by the county with subsection (b) of Code Section 36-17-21 and subsection (b) of Code Section 36-17-22, retained by the governing authority of the county. The form of the notice shall be as prescribed by the state revenue commissioner, who shall determine and certify to the appropriate state fiscal officer the amount of funds to which each county is entitled pursuant to this article. The determination of the state revenue commissioner shall be final and the appropriate state fiscal officer shall disburse the funds pursuant to the certification.

(Ga. L. 1973, p. 475, § 4; Ga. L. 1975, p. 1079, § 5.)

36-17-25. Administration of article by state revenue commissioner; promulgation of rules and regulations.

It shall be the duty of the state revenue commissioner to administer this article. The commissioner shall have the authority to promulgate such rules and regulations as he may deem necessary for the effective administration of this article.

(Ga. L. 1975, p. 1079, § 6.)

CHAPTER 18 REGULATION OF CABLE TELEVISION SYSTEMS

Sec.

Cross references. - Theft of telecommunication services, § 46-5-2 et seq.

RESEARCH REFERENCES

ALR. - Validity and construction of provision of Cable Communications Policy Act (47 USC § 541(a)(2)) allowing cable companies access to utility easements on private property, 113 A.L.R. Fed. 523.

36-18-1. "Cable television system" defined.

As used in this chapter, the term "cable television system" means a nonbroadcast facility consisting of a set of transmission paths and associated generation, reception, transmission, and control equipment, under common ownership and control, that distributes or is designed to distribute to subscribers the signals of one or more television broadcast stations and programs received via satellite, microwave, video tape, or video discs or produced by the franchised cable system.

(Ga. L. 1981, p. 865, § 1.)

36-18-2. Powers of governing authorities.

The governing authority of each county in this state is authorized to limit the operation of cable television systems within its territorial limits, except as limited by Code Section 36-18-3, to operators licensed and franchised by the county; to grant, in its sole discretion, one or more franchise licenses for the operation of cable television systems within the territorial limits of that county, except as limited by Code Section 36-18-3; and to regulate by ordinance or resolution the operation of cable television systems licensed and franchised by that county. The governing authority of each such county, in connection with the grant of such franchises, is further authorized to charge franchise fees to cable television systems for the right to operate the systems within the unincorporated areas of the county and within any incorporated areas which are subject to the limitation contained in Code Section 36-18-3. Cable television system franchise fees shall be negotiated between each county and each franchisee, in an amount not to exceed that amount authorized under applicable federal law and regulations.

(Ga. L. 1981, p. 865, § 2.)

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

Law reviews. - For article surveying developments in Georgia local government law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 187 (1981).

JUDICIAL DECISIONS

No authorization of municipalities. - O.C.G.A. § 36-18-2 confers authority only upon the governing authority of each county in the state, and there is no similar authorization of municipalities. Cable Holdings of Battlefield, Inc. v. Lookout Cable Servs., Inc., 178 Ga. App. 456 , 343 S.E.2d 737 (1986).

Cited in Cable Holdings of Battlefield, Inc. v. Cooke, 764 F.2d 1466 (11th Cir. 1985).

RESEARCH REFERENCES

Am. Jur. 2d. - 36 Am. Jur. 2d, Franchises from Public Entities, §§ 36, 37.

C.J.S. - 37 C.J.S., Franchises, §§ 26, 27.

ALR. - Validity and construction of municipal ordinances regulating community antenna television service (CATV), 41 A.L.R.3d 384.

Standing to contest award of, or acquisition of right to operate, cable TV certificate, license, or franchise in state court action, 78 A.L.R.3d 1255.

36-18-3. Restriction on authority of counties and municipalities to regulate.

A county shall neither grant a franchise nor collect a franchise fee for the operation of cable television systems within the corporate limits of any municipality except by agreement with the municipality. A municipality shall neither grant a franchise nor collect a franchise fee for the operation of cable television systems within the unincorporated area of a county except by agreement with the county.

(Ga. L. 1981, p. 865, § 3.)

Law reviews. - For article surveying developments in Georgia local government law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 187 (1981).

RESEARCH REFERENCES

Am. Jur. 2d. - 36 Am. Jur. 2d, Franchises from Public Entities, §§ 36, 37.

C.J.S. - 37 C.J.S., Franchises, §§ 26, 27.

36-18-4. Intent and construction of chapter.

It is the intent of this chapter to confirm expressly the authority of counties to grant franchises for, and to regulate by ordinance or resolution, cable television systems within their territorial limits, except as limited by Code Section 36-18-3. Nothing in this chapter shall be construed to impair any cable television system franchise license lawfully issued by a county or municipality prior to April 9, 1981; and any such license shall be entitled to the benefits of this chapter.

(Ga. L. 1981, p. 865, § 4.)

JUDICIAL DECISIONS

Pre-1981 franchises which were not lawfully issued, as the franchises purported to be "exclusive," were not entitled to the benefits bestowed by O.C.G.A. Ch. 18, T. 36. Cable Holdings of Battlefield, Inc. v. Lookout Cable Servs., Inc., 178 Ga. App. 456 , 343 S.E.2d 737 (1986).

RESEARCH REFERENCES

Am. Jur. 2d. - 36 Am. Jur. 2d, Franchises from Public Entities, §§ 36, 37.

C.J.S. - 37 C.J.S., Franchises, §§ 26, 27.

36-18-5. Applicability of chapter.

This chapter shall not apply to any cable television system owned or operated by a city, a county, or a school system as to operations within the geographical area of such city, county, or school system.

(Ga. L. 1981, p. 865, § 5; Ga. L. 2004, p. 990, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d. - 36 Am. Jur. 2d, Franchises from Public Entities, §§ 36, 37.

C.J.S. - 37 C.J.S., Franchises, §§ 26, 27.

CHAPTER 19 IMMUNITY FROM ANTITRUST LIABILITY

36-19-1 and 36-19-2. Redesignated.

Editor's notes. - Chapter 19 of Title 36 and §§ 36-19-1 and 36-19-2, relating to immunity from antitrust liability, were redesignated as Chapter 65 of Title 36 and §§ 36-65-1 and 36-65-2 , respectively, by Ga. L. 1985, p. 149, § 36.

CHAPTER 20 COUNTY LEADERSHIP TRAINING

Sec.

Law reviews. - For annual survey on local government law, see 42 Mercer L. Rev. 359 (1990).

36-20-1. Short title.

This chapter shall be known and may be cited as the "Georgia County Leadership Act."

(Code 1981, § 36-20-1 , enacted by Ga. L. 1990, p. 1642, § 1.)

36-20-2. Legislative findings and intent.

The General Assembly finds and declares that it is in the best interests of the citizens of this state to require newly elected members of a county governing authority, prior to taking office, to attend a course of training and education on matters pertaining to the administration and operation of county government. The purpose of such course shall be to instruct such individuals in the powers, duties, and responsibilities of their positions of public trust.

(Code 1981, § 36-20-2 , enacted by Ga. L. 1990, p. 1642, § 1.)

36-20-3. Definitions.

As used in this chapter, the term:

  1. "Academy" means the Georgia County Leadership Academy.
  2. "Board" means the Board of the Georgia County Leadership Academy.
  3. "County governing authority" means the governing authority as defined in paragraph (7) of Code Section 1-3-3 and an elected chief executive officer of a county.
  4. "State" means the State of Georgia and any department, board, bureau, commission, or other agency thereof. (Code 1981, § 36-20-3 , enacted by Ga. L. 1990, p. 1642, § 1.)

36-20-4. Training of elected members of county governing authority.

  1. All persons elected as members of a county governing authority who were not serving as members of a county governing authority on July 1, 1990, shall enroll in, attend, and satisfactorily complete a course of training and education of at least 18 hours on matters pertaining to the administration and operations of county governments.  Such course of training and education shall include, but not be limited to, orientation in local government finance and budgeting; methods of taxation; planning; public works and utilities; parks and recreation; environmental management; public safety, health, and welfare; personnel management; responsiveness to the community; the ethics, duties, and responsibilities of members of a county governing authority or a chief executive officer; and such other matters as may be deemed necessary and appropriate by the academy.
  2. All expenses incurred by a newly elected member of a county governing authority related to the course of training and education authorized and required by subsection (a) of this Code section, including the reasonable costs of housing, travel, and meals, shall be paid from public funds appropriated for such purposes.  All expenses not paid for by state funds shall be paid from county funds by the county governing authority whose newly elected member or members shall attend such course. (Code 1981, § 36-20-4 , enacted by Ga. L. 1990, p. 1642, § 1.)

36-20-5. Georgia County Leadership Academy.

  1. There is created and established the Georgia County Leadership Academy. Except as otherwise provided in Code Section 36-20-4, all costs of operating and conducting the academy shall be paid for from public funds appropriated for such purposes.
  2. The academy shall have the power, duty, and authority to design, implement, and administer the course of training and education required by Code Section 36-20-4.
  3. The initial course of training and education required by Code Section 36-20-4 shall be conducted by the academy on the Tuesday after the first Monday in November of 1990 and completed before January 1, 1991. Subsequent courses shall be conducted by the academy biennially between the Tuesday after the first Monday in November and before January 1 of the following year or as otherwise changed by general law.  The academy shall have sole responsibility for determining the exact date or dates the course of training and education shall be conducted.
  4. The academy shall establish guidelines and procedures to permit any person elected or appointed as a member of a county governing authority after January 1 of a calendar year or any person who is unable to attend or complete the course of training and education when offered by the academy due to medical disability, providential cause, or any other reason deemed sufficient by the academy, to comply with the requirements of Code Section 36-20-4.
  5. The academy shall perform such other duties and have such other powers and authority as may be necessary and proper or as prescribed by general law. (Code 1981, § 36-20-5 , enacted by Ga. L. 1990, p. 1642, § 1.)

36-20-6. Board supervision of Georgia County Leadership Academy.

  1. The academy shall be under the direction and supervision of the board of the Georgia County Leadership Academy.  The board shall have the power and duty to organize, administer, control, oversee, and advise the academy so that the academy is operated in accordance with the provisions of this article.
  2. The academy is assigned to the Department of Community Affairs for administrative purposes only, as prescribed in Code Section 50-4-3 . (Code 1981, § 36-20-6 , enacted by Ga. L. 1990, p. 1642, § 1.)

36-20-7. Membership of board.

The board shall consist of seven members and shall be composed of the commissioner of the Department of Community Affairs, the director of the Carl Vinson Institute of Government of the University of Georgia, the administrator of Governmental Training of the Carl Vinson Institute of Government of the University of Georgia, the president of the Association County Commissioners of Georgia, the executive director of the Association County Commissioners of Georgia, and two members appointed by the Governor. Members of the board appointed by the Governor shall serve for four-year terms.

(Code 1981, § 36-20-7 , enacted by Ga. L. 1990, p. 1642, § 1.)

36-20-8. Acceptance by board of federal, state, or local appropriations, grants, or contributions; authority to enter into contracts, leases, or agreements.

  1. The board may accept appropriations, grants, gifts, donations, or contributions from the federal government; the state government; any county, municipal, or local government; any board, bureau, commission, agency, or establishment of any such government; any other organization, firm, or corporation, public or private; and any individual or groups of individuals in furtherance of the services, purposes, duties, responsibilities, or functions vested in the board and academy.
  2. The board is authorized to make such contracts, leases, or agreements as may be necessary and convenient to carry out the duties and purposes for which the board is created.  The board is authorized to enter into contracts, leases, or agreements with any person, firm, or corporation, public or private, upon such terms and for such purposes as may be deemed advisable by the board. (Code 1981, § 36-20-8 , enacted by Ga. L. 1990, p. 1642, § 1.)

36-20-9. Report on accomplishments of academy.

On or before February 1 of each year, the director of the Carl Vinson Institute of Government, on behalf of the board, shall make a report to the Governor, the chairman of the Senate State and Local Governmental Operations Committee, and the chairman of the State Planning and Community Affairs Committee of the House of Representatives. The report shall include a summary of the accomplishments of the academy during the preceding calendar year, including, but not limited to, the total number of members of a county governing authority who attended the course of training and education offered by the academy; an outline of the academy's programs for the current calendar year; an evaluation of the programs and services offered by the academy; and recommendations, if any, for legislation as may be necessary to improve the programs and services offered by the academy.

(Code 1981, § 36-20-9 , enacted by Ga. L. 1990, p. 10, § 1; Ga. L. 1995, p. 10, § 36.)

CHAPTER 21 GROUP HEALTH BENEFITS PROGRAM

Sec.

Cross references. - Health care plans, T. 33, C. 20.

36-21-1. Legislative intent.

It is declared to be the intent of the General Assembly that a method be provided whereby counties and certain other entities of this state may, in the discretion of their respective governing bodies, provide group health and other employee benefits to their employees through a common administrative and investment system. Such a system based on joint participation will permit counties and other entities, regardless of size, to provide certain benefits to their employees, will reduce overall administrative costs which might be prohibitive if undertaken individually, and will make possible better investment opportunities. It is intended that this chapter be liberally construed to effectuate this intent.

(Code 1981, § 36-21-1 , enacted by Ga. L. 1999, p. 1190, § 1.)

36-21-2. Definitions.

As used in this chapter, the term:

  1. "Benefit system" or "system" means the plan or plans of employee benefits offered and administered pursuant to this chapter.
  2. "Board" means the board of directors of the ACCG Group Health Benefits Program, Inc.
  3. "Contract" means a contract executed pursuant to this chapter between the board and a county.
  4. "Corporation" means the ACCG Group Health Benefits Program, Inc., a corporation established under Chapter 3 of Title 14, the "Georgia Nonprofit Corporation Code," created to provide benefits pursuant to this chapter.
  5. "County" means the group health benefits program operated by the corporation; the Association County Commissioners of Georgia and any affiliate; any Georgia county government; any consolidated city-county government; or any public authority, commission, board, or similar body created or activated by an Act of the General Assembly or by resolution or ordinance of the county governing authority, individually or jointly with any other political subdivision or subdivisions of the State of Georgia, pursuant to the Constitution or an Act of the General Assembly and which carries out its function on a county-wide basis, a multicounty basis, or wholly within the unincorporated area of a county.
  6. "Employee" means any salaried or hourly rated person employed by a county. Notwithstanding any laws to the contrary, the term also includes any appointed or elected member of the governing authority of a county, the chief legal officer and any associate legal officer, and any other elected or appointed county official.
  7. "Employee benefits" means group health benefits, group short-term disability benefits, group death benefits, group accidental death and dismemberment benefits, and such other benefits as from time to time the board may deem advisable.
  8. "Member county" means a county which has contracted to become a member of the benefit system as provided for in this chapter. (Code 1981, § 36-21-2 , enacted by Ga. L. 1999, p. 1190, § 1.)

36-21-3. Corporation governed by a board of directors; powers, duties, and operations; bond; administrative expenses.

  1. Any county in this state may enter into a contract with the board for the purpose of providing employee benefits to its employees.
  2. The corporation shall be governed by a board of directors, which shall be appointed and shall serve in accordance with the bylaws of the corporation. The board shall be authorized to operate and administer the benefit system in accordance with its bylaws and such other rules and regulations as may be established by the board as necessary or desirable for the administration of the benefit system.
  3. The board shall maintain a fidelity bond, and errors and omissions coverage or other appropriate liability insurance, in an amount deemed sufficient by the board.
  4. The administrative expenses of the board, including all operational expenses, fees, compensation, and other costs, shall be paid from funds held by it and may be chargeable by it to either principal or income or both, as determined by it, as of any valuation date. Further, the board shall have the authority to allocate expenses among member counties on the basis of costs. (Code 1981, § 36-21-3 , enacted by Ga. L. 1999, p. 1190, § 1.)

36-21-4. Annual audits.

The benefit system authorized under this chapter shall have an annual audit of its books and accounts performed by a certified public accountant. Such audit shall be conducted in accordance with generally accepted accounting principles. A copy of such audit shall be made available to member counties.

(Code 1981, § 36-21-4 , enacted by Ga. L. 1999, p. 1190, § 1.)

36-21-5. Establishment of benefit plans.

    1. The board has the power to establish one or more plans which may be adopted by any county that meets the criteria established by the board. The employees to be covered, the benefits to be provided, and the terms and conditions for benefits shall be provided in the plan. A county is empowered to adopt such a plan by ordinance and to execute an agreement with the board to provide employee benefits as provided in the plan. The agreement and plan entered into by each member county may constitute a separate plan, unless the contract between the board and one or more counties specifically provides that funds of the counties are to be pooled and treated as a single plan. A plan providing employee benefits may provide for the method of funding such benefits through the use of insurance, self-funding, or otherwise.
    2. Any agreement between the board and a county which provides for self-funded benefits shall contain a provision that such benefits are to be provided, to the extent fixed in the plan, by the county and that the corporation does not guarantee the benefits.
  2. The board is authorized to specify in the plan reasonable employee classifications.
  3. Counties are authorized to appropriate funds to provide the benefits specified in such plan and to pay their portion of the administrative costs of the board in administering the system. Each county is authorized to pay the total contribution on behalf of its employees or to provide that a portion be deducted from the salaries of participating employees.
  4. Contributions paid by a county shall be paid from county funds which are on hand or which will be collected in the year the contribution is made and shall not be deemed to create a debt of the county. (Code 1981, § 36-21-5 , enacted by Ga. L. 1999, p. 1190, § 1.)

36-21-6. Investment of funds.

The board is authorized to invest and reinvest funds held by it, in accordance with the bylaws of the corporation, in any investments which are legal investments for domestic insurance companies under the laws of this state or in any investments authorized for trustees of private employee benefit plans by the federal Employees Retirement Income Security Act of 1974, as amended.

(Code 1981, § 36-21-6 , enacted by Ga. L. 1999, p. 1190, § 1.)

36-21-7. Funds not subject to process, levy, or attachment; nonassignability.

Funds held by the board of trustees or for its account shall not be subject to process, levy, or attachment; nor shall benefits arising under this chapter or any contract pursuant to this chapter be assignable unless otherwise specifically permitted under the plan of benefits.

(Code 1981, § 36-21-7 , enacted by Ga. L. 1999, p. 1190, § 1.)

36-21-8. Chapter exempt from regulation under Title 33.

The provision of employee benefits pursuant to this chapter shall not be subject to regulation under Title 33.

(Code 1981, § 36-21-8 , enacted by Ga. L. 1999, p. 1190, § 1.)

36-21-9. Tax-exempt status.

The employee benefit system shall be exempt from state and local taxes and fees.

(Code 1981, § 36-21-9 , enacted by Ga. L. 1999, p. 1190, § 1.)

36-21-10. State debt not created.

Nothing in this chapter shall create a debt of the State of Georgia.

(Code 1981, § 36-21-10 , enacted by Ga. L. 1999, p. 1190, § 1.)

CHAPTER 22 LAND CONSERVATION

36-22-1 through 36-22-15. Redesignated.

Editor's notes. - Code Sections 36-22-1 through 36-22-4 and Code Sections 36-22-8 through 36-22-15, relating to land conservation, were redesignated as Chapter 6A of Title 12 by Ga. L. 2008, p. 90, § 1-1/HB 1176, effective July 1, 2008.

Code Sections 36-22-5 through 36-22-7 were previously reserved and repealed by Ga. L. 2005, p. 175, § 2/HB 98, effective April 14, 2005, and were based on Code 1981, §§ 36-22-5 through 36-22-7, enacted by Ga. L. 2000, p. 392, § 1.

CHAPTER 23 THROUGH 29

Reserved

PROVISIONS APPLICABLE TO MUNICIPAL CORPORATIONS ONLY

CHAPTER 30 GENERAL PROVISIONS

Sec.

Cross references. - Self authentication, § 24-9-902 .

Jurisdiction and authority of municipalities as to public roads, § 32-4-90 et seq.

Procedure for abatement of nuisances in cities generally, § 41-2-5 .

Prohibition against requiring municipal or county officers or employees to reside within boundaries of municipality or county, § 45-2-5 .

Municipal Electric Authority of Georgia, § 46-3-110 et seq.

Ad valorem taxation of property by municipalities, § 48-5-350 et seq.

Law reviews. - For annual survey of local government law, see 35 Mercer L. Rev. 233 (1983). For annual survey article on local government law, see 50 Mercer L. Rev. 263 (1998).

36-30-1. Meaning of terms "city," "town," "municipality," or "village."

Wherever the words "city," "town," "municipality," or "village" appear in the statutory laws of this state, such words shall be construed as synonymous, and the General Assembly so declares this to be its intention in the use of these words; such words shall be held to mean a municipal corporation as defined by statutory law and judicial interpretation.

(Ga. L. 1964, p. 170, § 1.)

Law reviews. - For article, "Selected Oddities in Georgia Municipal Law," see 9 Ga. L. Rev. 783 (1975). For article, "Researching Georgia Law," see 34 Ga. St. U. L. Rev. 741 (2015).

JUDICIAL DECISIONS

This section is not unconstitutional for being a legislative restriction of the judiciary. Holloway v. Mayor of Whitesburg, 225 Ga. 152 , 166 S.E.2d 576 (1969).

This section does not operate to diminish the power of a city to impose a sentence after violations of penal ordinances of the city. City of Albany v. Key, 124 Ga. App. 16 , 183 S.E.2d 20 (1971).

Cited in City of Jonesboro v. Clayton County Water Auth., 136 Ga. App. 768 , 222 S.E.2d 76 (1975).

RESEARCH REFERENCES

Am. Jur. 2d. - 56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, § 1 et seq.

C.J.S. - 62 C.J.S., Municipal Corporations, § 1 et seq.

ALR. - Irrigation district as municipality within the tax laws, 17 A.L.R. 81 ; 55 A.L.R. 639 .

36-30-2. Management and disposition of property.

The council or other governing body of a municipal corporation has discretion in the management and disposition of its property. Where such discretion is exercised in good faith, equity will not interfere therewith.

(Civil Code 1895, § 746; Civil Code 1910, § 895; Code 1933, § 69-203.)

History of section. - This Code section is derived from the decision in Semmes v. Columbus, 19 Ga. 471 (1856) and Mayor of Athens v. Camak, 75 Ga. 429 (1885).

Law reviews. - For article, "Cities and Towns in Georgia: A Distinction with a Difference?," see 14 Mercer L. Rev. 385 (1963). For note discussing governmental immunity from tort liability in Georgia, see 5 Ga. St. B. J. 494 (1969).

JUDICIAL DECISIONS

Property held by municipality for governmental or public uses cannot be sold without express legislative authority, but must be devoted to the use and purpose for which the property was intended. McPherson v. City of Dawson, 221 Ga. 861 , 148 S.E.2d 298 (1966).

This section authorizes a city to sell any property owned in the city's purely proprietary capacity. McPherson v. City of Dawson, 221 Ga. 861 , 148 S.E.2d 298 (1966).

Rule of judicial noninterference. - Court of equity will not interfere with the discretionary action of the governing officers of a city within the sphere of their legally delegated powers, unless such action is arbitrary, and amounts to an abuse of discretion. McMaster v. Mayor of Waynesboro, 122 Ga. 231 , 50 S.E. 122 (1905); Mayor of Gainesville v. Dunlap, 147 Ga. 344 , 94 S.E. 247 (1917); South Ga. Power Co. v. Baumann, 169 Ga. 649 , 151 S.E. 513 (1929).

Courts cannot inquire into the motives of the mayor and general council of a municipality in enacting an ordinance, and cannot set the same aside if it is not unreasonable, ultra vires, or unconstitutional. South Ga. Power Co. v. Baumann, 169 Ga. 649 , 151 S.E. 513 (1929).

Municipality having discretion under this section in the management and disposition of the municipality's property, in the absence of illegality, fraud, or clear abuse of discretion of the municipal authorities, equity will not interfere therewith, nor inquire into the propriety, economy, and general wisdom of the undertaking. Kirkland v. Johnson, 209 Ga. 824 , 76 S.E.2d 396 (1953).

Business affairs of a municipality are committed to the corporate authorities, and the courts will not interfere except in a clear case of mismanagement or fraud. J.C. Lewis Motor Co. v. Mayor of Savannah, 210 Ga. 591 , 82 S.E.2d 132 (1954); Singer v. City of Cordele, 225 Ga. 323 , 168 S.E.2d 138 (1969); Hamsley v. City of Unadilla, 265 Ga. 494 , 458 S.E.2d 627 (1995).

Allegations that the city was employing extra police officer's and expending large sums of money to protect property during an emergency brought about by a strike were insufficient to show such abuse of city council's discretion as would entitle the petitioners, suing as "citizens and taxpayers," to the injunctive relief prayed for. Gulledge v. Augusta Coach Co., 210 Ga. 377 , 80 S.E.2d 274 (1954), criticized, Head v. Browning, 215 Ga. 263 , 109 S.E.2d 798 (1959).

Board of a municipality empowered to perform a particular act in the board's discretion will not be interfered with or controlled by the courts in the board's discretionary acts unless the board's discretion is manifestly abused, nor will the court inquire into the propriety, economy, or wisdom of the undertaking, or into the details of the manner adopted to carry the matter into execution. Macon Ambulance Serv., Inc. v. Snow Properties, Inc., 218 Ga. 262 , 127 S.E.2d 598 (1962).

Governing body of city is not answerable for erroneous exercise of that body's discretion, although injurious consequences may result therefrom. Semmes v. Mayor of Columbus, 19 Ga. 471 (1856); Mayor of Athens v. Camak, 75 Ga. 429 (1885).

Municipal corporation may bind itself, and cannot abrogate any contract which the municipality has the right to make under the municipality's charter. Jonesboro Area Athletic Ass'n v. Dickson, 227 Ga. 513 , 181 S.E.2d 852 (1971).

Cited in Jarrett v. City of Boston, 209 Ga. 530 , 74 S.E.2d 549 (1953); Pittman v. City of Jesup, 232 Ga. 635 , 208 S.E.2d 456 (1974); Silver v. City of Rossville, 253 Ga. 13 , 315 S.E.2d 898 (1984).

RESEARCH REFERENCES

Am. Jur. 2d. - 56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, §§ 128 et seq., 160 et seq.

C.J.S. - 62 C.J.S., Municipal Corporations, § 148. 63 C.J.S., Municipal Corporations, §§ 1153, 1154, 1162.

ALR. - Validity of municipal ordinance as affected by motive of members of council which adopted it, 32 A.L.R. 1517 .

Power of municipal corporation to purchase or charter a boat or barge, 39 A.L.R. 1332 .

Power to detach land from municipal corporations, towns, or villages, 117 A.L.R. 267 .

Injunction against legislative body of state or municipality, 140 A.L.R. 439 .

Power of municipal corporation to lease or sublet property owned or leased by it, 47 A.L.R.3d 19.

36-30-3. Ordinances of a council not to bind succeeding councils; exceptions.

  1. One council may not, by an ordinance, bind itself or its successors so as to prevent free legislation in matters of municipal government.
  2. The governing authorities of municipal corporations having a population of not less than 100,000 and not more than 135,000 according to the United States decennial census of 1970 or any future such census may on behalf of such municipal corporations enter into contracts with respect to the ownership, maintenance, construction, or reconstruction of street overpasses and underpasses of railroad properties which shall be binding upon such authorities and successors. Contracts executed by the governing authorities of such municipal corporations prior to December 31, 1977, with respect to the ownership, maintenance, construction, or reconstruction of street overpasses and underpasses of railroad properties are ratified and confirmed.
    1. The governing authorities of municipal corporations having a population of not less than 350,000 according to the United States decennial census of 1980 or any future such census may, on behalf of such municipal corporations, authorize the mayor to enter into contracts with private or public entities not involving the incurring of indebtedness by such municipal corporations or security for indebtedness of such private and public entities for periods not exceeding 50 years and for a valuable consideration, which contracts shall be binding on such municipal corporations and on such authorities and successors, with respect to the leasing, subleasing, maintenance, or management of property for retail facilities, restaurants, or office or other commercial use, or for residential use, or with respect to property or facilities used for nonprofit museum purposes, which property or facilities are located in its downtown development area, as defined in paragraph (3) of Code Section 36-42-3; and to authorize the mayor to include in any such contracts for use of property which is located in a downtown development area and is in or contiguous to an urban redevelopment area established pursuant to Chapter 61 of this title or to enter into amendments to any such existing or future contracts for use of property which is located in such areas in order to include terms and conditions which provide for renewals or extensions of the term of such contracts for a period of time not to exceed an additional 50 years.  The limitation involving the incurring of indebtedness by such municipal corporations or security for indebtedness of such private and public entities shall not apply to contracts for the use of property for nonprofit museum purposes, nor shall such limitation apply to contracts for the leasing, subleasing, maintenance, or management of property or facilities which, in addition to being located in a downtown development area, are also located in or contiguous to an urban redevelopment area established pursuant to Chapter 61 of this title, the "Urban Redevelopment Law."
    2. The governing authorities of any municipal corporation in this state having a population of 350,000 or more according to the United States decennial census of 1980 or any future such census may authorize the mayor to execute contracts on behalf of such municipal corporation for periods not exceeding 50 years and for valuable consideration with public or private entities to support certificates of participation in a principal amount of not more than $100 million, which contracts shall be for the development, construction, leasing, subleasing, maintenance, or management of property or facilities used for criminal justice purposes and located within the downtown development area of such municipal corporation as defined in paragraph (3) of Code Section 36-42-3 and shall be binding on such municipal corporation and such authorities and their successors.
  4. The governing authority of any municipal corporation in this state may authorize the execution of one or more contracts which specify the rates, fees, or other charges which will be charged and collected by the municipal corporation for electric, natural gas, or water utility services to be provided by the municipal corporation to one or more of its utility customers. Nothing in this subsection, however, shall be construed to grant to any municipal governing authority the right or power to specify the rates, fees, or charges to be collected for electric, natural gas, or water utility services provided by a local authority, as defined in subsection (a) of Code Section 36-80-17, where the right or power to specify such rates, fees, or charges is otherwise vested by local constitutional amendment, general statute, or local law in the governing body of such local authority. Any such contract shall be subject to the following conditions and limitations:
      1. Except as provided in subparagraph (B) of this paragraph, no such contract shall be for a term in excess of ten years.
      2. No such contract for solar utility services or for wind utility services shall be for a term in excess of 20 years;
    2. Any such contract which is for a term in excess of two years shall include commercially reasonable provisions under which the rates, fees, or other charges shall be adjusted with respect to inflationary or deflationary factors affecting the provision of the utility service in question; and
    3. Any such contract shall include commercially reasonable provisions relieving the municipal corporation from its obligations under the contract in the event that the municipal corporation's ability to comply with the contract is impaired by war, natural disaster, catastrophe, or any other emergency creating conditions under which the municipal corporation's compliance with the contract would become impossible or create a substantial financial burden upon the municipal corporation or its taxpayers.

      (Civil Code 1895, § 743; Civil Code 1910, § 892; Code 1933, § 69-202; Ga. L. 1979, p. 521, § 1; Ga. L. 1982, p. 2107, § 36; Ga. L. 1986, p. 841, § 1; Ga. L. 1987, p. 3, § 36; Ga. L. 1987, p. 175, § 1; Ga. L. 1987, p. 275, § 1; Ga. L. 1989, p. 1287, § 1; Ga. L. 1990, p. 286, § 1; Ga. L. 1991, p. 989, § 1; Ga. L. 1998, p. 1113, § 2; Ga. L. 2019, p. 605, § 2/SB 95.)

The 2019 amendment, effective July 1, 2019, rewrote paragraph (d)(1), which read: "No such contract shall be for a term in excess of ten years;".

History of section. - This Code section is derived from the decision in Williams v. City Council, 68 Ga. 816 (1882).

Cross references. - Constitutional provisions placing limitations on debt which may be incurred by a county, municipality, or political subdivision, Ga. Const. 1983, Art. IX, Sec. V, Para. I.

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1986, "United States" was substituted for "United State" in subsection (c).

Law reviews. - For article, "Local Government and Contracts that Bind," see 3 Ga. L. Rev. 546 (1969). For article, "Binding Contracts in Georgia Local Government Law: Recent Perspectives," see 11 Ga. St. B. J. 148 (1975). For article discussing the origin and construction of Georgia statute concerning the authority of a council to bind its successors, see 14 Ga. L. Rev. 239 (1980). For annual survey of local government law, see 38 Mercer L. Rev. 289 (1986). For article, "Binding Contracts in Georgia Local Government Law: Configurations of Codification," see 24 Ga. L. Rev. 95 (1989). For article, "The Georgia Supreme Court and Local Government Law: Two Sheets to the Wind," see 16 Ga. St. U. L. Rev. 361 (1999). For article, "Local Government Litigation: Some Pivotal Principles," see 55 Mercer L. Rev. 1 (2003). For annual survey of local government law, see 56 Mercer L. Rev. 351 (2004). For annual survey of local government law, see 57 Mercer L. Rev. 289 (2005). For survey article on local government law, see 60 Mercer L. Rev. 263 (2008). For annual survey on local government law, see 64 Mercer L. Rev. 213 (2012). For survey article on local government law, see 67 Mercer L. Rev. 147 (2015). For note on 1990 amendment of this Code section, see 7 Ga. St. U. L. Rev. 324 (1990).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

Origin of section. - This statute is not of statutory origin, and is not peculiar to Georgia. The statute is a codification of a principle which is applicable generally to legislative or governmental bodies. Aven v. Steiner Cancer Hosp., 189 Ga. 126 , 5 S.E.2d 356 (1939).

Legislative intent. - Framers of this section intended to preserve for municipal governments freedom from ordinances which bind and prevent free legislation in matters such as operating budgets. Brown v. City of E. Point, 152 Ga. App. 801 , 264 S.E.2d 267 (1979), aff'd, 246 Ga. 144 , 268 S.E.2d 912 (1980).

Standing of citizen-taxpayer. - Absent expenditures of public revenue or performance of a duty owed to the public, a citizen-taxpayer has no standing in equity to challenge a council's action which allegedly binds future councils unless the citizen has special damages not shared by the general public. Juhan v. City of Lawrenceville, 251 Ga. 369 , 306 S.E.2d 251 (1983).

Power to contract for future. - All legislative bodies are limited in their legal capacity in such a manner as not to deprive succeeding bodies of the right to deal with matters involving the same questions as may arise from time to time in the future, and as the then present exigencies may require. But a municipal corporation may make a valid contract to continue for a reasonable time beyond the official term of the officers entering into the contract for the municipality. Horkan v. City of Moultrie, 136 Ga. 561 , 71 S.E. 785 (1911).

No power to cede away governmental powers. - Powers are conferred upon municipal corporations for public purposes, and as their legislative powers cannot be delegated, so they cannot be bargained or bartered away. Such corporations may make authorized contracts, but they have no power, as a party, to make contracts or pass bylaws which shall cede away, control, or embarrass their legislative or governmental powers, or which shall disable them from performing their public duties. Horkan v. City of Moultrie, 136 Ga. 561 , 71 S.E. 785 (1911).

Effect of section. - This section prohibits, as ultra vires, the enactment of ordinances or the execution of contracts which are effective beyond the term of the commissioners then in office. Ledbetter Bros. v. Floyd County, 237 Ga. 22 , 226 S.E.2d 730 (1976).

Contract which restricts governmental or legislative functions of a city council has been traditionally held to be a nullity, ultra vires, and void even though it may present a trap for the unwary in dealing with municipal corporations; the municipality would not be estopped from asserting the invalidity of such a contract at any time. Brown v. City of East Point, 246 Ga. 144 , 268 S.E.2d 912 (1980).

Action void as ultra vires. - Settlement agreement entered into by a county and the county's board of commissioners was void as an ultra vires act because it purported to forever bind the hands of future boards of commissioners regarding land use and zoning decisions for certain property. Buckhorn Ventures, LLC v. Forsyth County, 262 Ga. App. 299 , 585 S.E.2d 229 (2003).

Applicability to counties. - Principle stated in O.C.G.A. § 36-30-3 applies to counties as well as to municipalities. Madden v. Bellew, 260 Ga. 530 , 397 S.E.2d 687 (1990).

When power to grant franchises stems from Ga. L. 1976, p. 188, § 1 (see now O.C.G.A. § 36-34-2(7) ), there was no violation of former Code 1933, § 69-202 (see now O.C.G.A. § 36-30-3 ). City of Lithonia v. Georgia Pub. Serv. Comm'n, 238 Ga. 339 , 232 S.E.2d 832 (1977).

Section applicable to governmental, not proprietary functions. - This section does not apply to a situation where a political subdivision is operating in a proprietary rather than a governmental capacity. Southern Airways Co. v. DeKalb County, 102 Ga. App. 850 , 118 S.E.2d 234 (1960).

While long-term commitments which could be characterized as proprietary have been permitted, attempts at binding arrangements with respect to governmental functions have been prohibited. Brown v. City of E. Point, 152 Ga. App. 801 , 264 S.E.2d 267 (1979), aff'd, 246 Ga. 144 , 268 S.E.2d 912 (1980).

Rules of procedure passed by one legislative body are not binding upon subsequent legislative bodies operating within same jurisdiction; no legislative body can divest that body's successor of its legislative powers by passing ordinances or resolutions which deprive their successor of the power to exercise fully their legislative discretion, and each legislative body, when it meets, and unless restrained by the authority which created it, is without rules of procedure, and has inherent power to make its own rules without reference to the action of preceding bodies. South Ga. Power Co. v. Baumann, 169 Ga. 649 , 151 S.E. 513 (1929).

Applicability to authorities. - This section does not prohibit authorities, as distinguished from municipalities, from entering long-term contracts: there is no basis for the assertion that it applies to authorities. City of Jonesboro v. Clayton County Water Auth., 136 Ga. App. 768 , 222 S.E.2d 76 (1975).

Dismissal of a probationer's claims, seeking to invalidate the service contract between the state court and the private company that contracted to supervise the court's probationers and for money had and received, was proper due to failure to state a claim because there was no challenge to the alternative ground that the district court had relied on. Keen v. Judicial Alternatives of Ga., Inc., F.3d (11th Cir. Dec. 17, 2015), cert. denied, 137 S. Ct. 55 , 196 L. Ed. 2 d 30 (U.S. 2016)(Unpublished).

If this section is too rigidly applied, there would be few contracts which municipalities could legally enter into, since contracts, by definition, must be binding, and many of the contracts, to be practical and effective, must extend beyond the existing councils' terms because of the nature of their subject matter. Jonesboro Area Athletic Ass'n v. Dickson, 227 Ga. 513 , 181 S.E.2d 852 (1971).

One municipal council may not by ordinance bind itself or the council's successors so as to prevent free legislation in matters of municipal government. Aven v. Steiner Cancer Hosp., 189 Ga. 126 , 5 S.E.2d 356 (1939); Lawson v. City of Moultrie, 194 Ga. 699 , 22 S.E.2d 592 (1942).

What cannot be done by an ordinance cannot be done by a contract. Screws v. City of Atlanta, 189 Ga. 839 , 8 S.E.2d 16 (1940).

Ratification of contracts by subsequent council. - Future council may be bound by the terms of a contract if that council either approves the terms of the contract or ratifies the contract. Brown v. City of E. Point, 246 Ga. 144 , 268 S.E.2d 912 (1980).

Duration of contracts. - Municipal corporation may make a valid contract to continue for a reasonable time beyond the official term of the officers entering into the contract for the municipality. Jonesboro Area Athletic Ass'n v. Dickson, 227 Ga. 513 , 181 S.E.2d 852 (1971).

O.C.G.A. § 36-30-3(a) does not prevent a contract from extending beyond the term of the commission in office at the time of the contract's execution. Unified Gov't v. North, 250 Ga. App. 432 , 551 S.E.2d 798 (2001).

While a municipality is not estopped to deny the validity of a contract wholly beyond the municipality's powers, the municipality may be estopped by the exercise of contractual powers legally vested in the municipality, and even by the exercise of governmental powers, to prevent manifest injustice and wrongs to private persons, where the restraint placed upon a municipality to accomplish that purpose does not interfere with the exercise of governmental powers of the municipality. Brown v. City of E. Point, 246 Ga. 144 , 268 S.E.2d 912 (1980).

Post-retirement benefits of Community Service Board's Executive Director not gratuities. - After the community service board filed a declaratory judgment action against the board's former executive director, contending that the director's contract violated public policy and that the director was not entitled to payment and benefits for various reasons, and the director counterclaimed against the board, the trial court did not err in ruling in favor of the director because the board's broad powers encompassed all of the benefits paid to the director, and it did not show that any of the director's benefits fell outside of the provisions of the enabling legislation; the director was entitled to payment for any compensation related to performance already rendered; and the director's post-retirement benefits were not gratuities. Gateway Cmty. Serv. Bd. v. Bonati, 346 Ga. App. 653 , 816 S.E.2d 743 (2018).

Cited in DeJarnette v. Hospital Auth., 195 Ga. 189 , 23 S.E.2d 716 (1942); Mayor of Waynesboro v. McDowell, 213 Ga. 407 , 99 S.E.2d 92 (1957); Smith v. Hayes, 217 Ga. 94 , 121 S.E.2d 113 (1961); Glendale Estates, Inc. v. Mayor of Americus, 222 Ga. 610 , 151 S.E.2d 142 (1966); McElmurray v. Richmond County, 223 Ga. 47 , 153 S.E.2d 427 (1967); Housing Auth. v. Mercer, 123 Ga. App. 38 , 179 S.E.2d 275 (1970); Pittman v. City of Jesup, 232 Ga. 635 , 208 S.E.2d 456 (1974); Frazer v. City of Albany, 245 Ga. 399 , 265 S.E.2d 581 (1980); Wilson v. Southerland, 258 Ga. 479 , 371 S.E.2d 382 (1988); CSX Transp., Inc. v. City of Garden City, 196 F. Supp. 2d 1288 (S.D. Ga. 2002); Marlowe v. Colquitt County, 278 Ga. App. 184 , 628 S.E.2d 622 (2006); CSX Transp., Inc. v. City of Garden City, 418 F. Supp. 2d 1366 (S.D. Ga. 2006); Sherman v. Dev. Auth., 320 Ga. App. 689 , 740 S.E.2d 663 (2013).

Street Overpasses and Railroad Underpasses

Subsection (b) inapplicable to easement involving grade crossing. - Subsection (b) of O.C.G.A. § 36-30-3 , which speaks specifically of "the ownership, maintenance, construction, or reconstruction of street overpasses and underpasses of railroad properties," is inapplicable to an easement involving grade crossings. Chatham County Comm'rs v. Seaboard C.L.R.R., 169 Ga. App. 607 , 314 S.E.2d 449 (1984).

Specific Contracts

Contracts made by virtue of express authority granted in the city charter are outside this prohibition. Brown v. City of E. Point, 246 Ga. 144 , 268 S.E.2d 912 (1980).

Employment contracts. - Provisions of county's personnel handbook regarding merit salary increases for employees could not bind the board of commissioners to approve the funding of future increases. International Bhd. of Police Officers Local 471 v. Chatham County, 232 Ga. App. 507 , 502 S.E.2d 341 (1998).

Judgment in favor of former employee was reversed because the contract was renewed automatically and the severance package required the city to pay the employee the employee's salary and benefits for an entire year after the year in which the contract was terminated; as such, the contract was ultra vires and void under O.C.G.A. § 36-30-3(a) . City of McDonough v. Campbell, 289 Ga. 216 , 710 S.E.2d 537 (2011).

Ordinance providing severance pay for retiring city employees fell into express authority exception to O.C.G.A. § 36-30-3 in view of charter provisions conferring broad authority upon the city to establish a pension system upon such terms and conditions as the mayor and council deemed proper. City of Athens v. McGahee, 178 Ga. App. 76 , 341 S.E.2d 855 (1986).

O.C.G.A. § 36-30-3 does not apply to construction contracts, which typically extend beyond the term of the officer entering into the contract for the municipality. City of Atlanta v. Brinderson Corp., 799 F.2d 1541 (11th Cir. 1986).

Construction of county buildings. - Agreements authorized by the County Building Authority Act, in regard to the acquisition and construction of certain county buildings, were not in violation of O.C.G.A. § 36-30-3 , for the necessary authority of the county and the building authority to enter into contracts for up to 50 years was contained in the intergovernmental contracts provision (Ga. Const., 1983, Art. IX, Sec. III, Para. I). Building Auth. v. State, 253 Ga. 242 , 321 S.E.2d 97 (1984).

Construction of roads. - O.C.G.A. § 36-30-3(a) did not prevent a unified government's liability on a contract with a developer to build a road diverting traffic from a water treatment plant away from the developer's subdivision after the road was not completed on time. Unified Gov't v. North, 250 Ga. App. 432 , 551 S.E.2d 798 (2001).

Agreement to construct and maintain parking area and sidewalk. - Agreement entered in 1954 between a city and an apartment owner for the construction of a parking lot and sidewalk to relieve traffic congestion was not subject to O.C.G.A. § 36-30-3(a) 's prohibition against binding successor councils because the construction and maintenance of the sidewalk and parking area were in the nature of a government's proprietary functions. Unified Gov't of Athens-Clarke Co. v. Stiles Apts., 295 Ga. 829 , 764 S.E.2d 403 (2014).

Contracts limiting governmental powers. - Restriction against one council binding itself or a successor also applies to contracts which limit a municipality's legislative or governmental powers. City of Jonesboro v. Clayton County Water Auth., 136 Ga. App. 768 , 222 S.E.2d 76 (1975).

Provisions of Ga. L. 1937, p. 761, § 1 et seq. (see now O.C.G.A. § 36-82-60 et seq.), do not render meaningless the mandate of former Code 1933, § 69-202 (see now O.C.G.A. § 36-30-3 ). The express statutory authority for a municipality to contract with the bond holders as to specified future utility rates does not extend to contracts with the wholesaler of electrical power. Johnson v. State, 107 Ga. App. 16 , 128 S.E.2d 651 (1962).

Each case must stand on the case's own peculiar factual situation. Jonesboro Area Athletic Ass'n v. Dickson, 227 Ga. 513 , 181 S.E.2d 852 (1971).

This section does not prohibit a contract that will be completed within the term of the commissioners, even though the depreciable life of the property contracted for extends beyond the term of the commissioners. Ledbetter Bros. v. Floyd County, 237 Ga. 22 , 226 S.E.2d 730 (1976).

Option to purchase land. - Lease by city of parcel of land accompanied by ten-year option to purchase land at a fixed price did not bind council or the council's successors so as to prevent free legislation in matters of municipal government. Silver v. City of Rossville, 253 Ga. 13 , 315 S.E.2d 898 (1984).

Lease of land for hospital. - Lease of land owned by the city for a rental or consideration to the city in the form of medical and surgical treatment to be furnished to the poor by the lessee corporation would have the effect of preventing free legislation in a matter of municipal government and for this reason would be illegal and void. Aven v. Steiner Cancer Hosp., 189 Ga. 126 , 5 S.E.2d 356 (1939).

Lease of property to airport. - When a county through the county's proper authority leases property which the county owns for use as an airport, the county is engaging in a proprietary and not a governmental function. Southern Airways Co. v. DeKalb County, 102 Ga. App. 850 , 118 S.E.2d 234 (1960).

Furnishing water to lessee. - When a municipality leases certain property for a term of 25 years, a provision of such contract obligating the city to supply the leased premises with water free of charge during the term of the lease is ultra vires and void. Screws v. City of Atlanta, 189 Ga. 839 , 8 S.E.2d 16 (1940).

Furnishing water and sewage facilities to airport. - Provision in a contract requiring a county to furnish water and sewage facilities to airport leased to private party without charge during 15 years, to begin at an undetermined future date, is invalid. Southern Airways Co. v. DeKalb County, 102 Ga. App. 850 , 118 S.E.2d 234 (1960).

Municipality's agreement to provide access to sewer system does not impair governmental function and therefore is not subject to subsection (a) of O.C.G.A. § 36-30-3 , which prohibits a council from binding itself or others so as to prevent free legislation in matters of municipal government. City of Powder Springs v. WMM Properties, Inc., 253 Ga. 753 , 325 S.E.2d 155 (1985).

Franchise granted by a city council to a public service corporation, under the charter powers of the city, constitutes a binding contract, and as such is not violative of this section. City of Summerville v. Georgia Power Co., 205 Ga. 843 , 55 S.E.2d 540 (1949).

Rezoning is legislative in nature and one county commission cannot deprive or restrict a succeeding commission in the exercise of the commission's legislative power by the device of entering into a contract or agreement purporting to limit the authority of the county commission to legislate in this regard. Barton v. Atkinson, 228 Ga. 733 , 187 S.E.2d 835 (1972).

Use of bond funds. - County commission cannot limit the commission's successors in the exercise of legislative power by ordinance or by contract; however, this principle has no application to the legitimate use of bond funds for an authorized public purpose. Lindsey v. Guhl, 237 Ga. 567 , 229 S.E.2d 354 (1976).

Holding title on easement to land. - There is no inhibition against the acquisition by a municipality of title to or of an easement in land to be held in perpetuity for the public use such as streets, alleys, sidewalks, parks, water and sewerage systems, cemeteries, and the like. The power was recognized as inherent at common law and is generally provided specifically or in the general welfare provisions of the municipality's charter, for without it a municipality could not effectively function. City of Douglas v. Cartrett, 109 Ga. App. 683 , 137 S.E.2d 358 (1964).

Municipal corporation acts in proprietary rather than governmental capacity in operating an electric distribution system. - Restriction placed upon municipal corporations by this section relates only to its governmental functions. Therefore, there is generally no objection to a contract by a municipal corporation for a supply of electrical power which extends beyond the term of office of the officers making the contract. The only restriction is that it must be reasonable in length of time for which it is to extend. Johnson v. State, 107 Ga. App. 16 , 128 S.E.2d 651 (1962).

Agreement to accept payment in lieu of ad valorem taxes void. - Any agreement reached by plaintiff city that it would accept a reasonable annual amount from defendant in lieu of ad valorem taxes was void as an ultra vires act because the effect of the agreement would be to bind successive city commissions indefinitely. Georgia Presbyterian Homes, Inc. v. City of Decatur, 165 Ga. App. 395 , 299 S.E.2d 900 , aff'd, 251 Ga. 290 , 304 S.E.2d 908 (1983).

No agreement as to schedule of payments to city. - When a contract is fully executed by a city and the only remaining obligations are payments owed to the city by the other party to the contract, but there is no agreement as to the annual sum to be paid beyond a certain year, no contract exists; the fact that the other party expects to pay some amount to be agreed upon, and does pay a certain amount annually for several years, does not show an agreement by it to pay, or by the city to accept, that amount. City of Decatur v. Georgia Presbyterian Homes, Inc., 251 Ga. 290 , 304 S.E.2d 908 (1983).

Power of a municipality to fix and regulate water rates is a legislative or governmental power and falls within the limitation placed upon councils of municipalities by this section. Screws v. City of Atlanta, 189 Ga. 839 , 8 S.E.2d 16 (1940); City of Warm Springs v. Bulloch, 212 Ga. 149 , 91 S.E.2d 13 (1956); Johnson v. State, 107 Ga. App. 16 , 128 S.E.2d 651 (1962).

Contract for exemption from sewer assessments. - Under the provisions of this section, a contract made by a municipality with property owners, to exempt the owners from future sewer assessments, is ultra vires, even though upon faith of the agreement the property owners conveyed rights of way to the city and the city accepted and entered upon the contract. Accordingly, a subsequent council of the municipality is not prevented from levying and enforcing proper sewer assessments against such property owners. J.S.H. Co. v. City of Atlanta, 193 Ga. 1 , 17 S.E.2d 55 (1941).

An agreement whereby the city would aid plaintiff in collecting a "tap-on" fee to sewer and water mains constructed by plaintiff and hooked to the city lines would attempt to bind governing authorities and would therefore be illegal. Simmons v. City of Clarkesville, 234 Ga. 530 , 216 S.E.2d 826 (1975).

Easement for effluent line. - Collateral agreements in the grant of an easement to a municipality for the purpose of constructing and maintaining an effluent line which relate to the manner of the line's maintenance cannot be effective beyond the term of the mayor and council accepting the easement and making the agreements, and beyond that time are void. City of Douglas v. Cartrett, 109 Ga. App. 683 , 137 S.E.2d 358 (1964).

Contract for placement of bus stop benches. - Pretermitting the applicability of O.C.G.A. § 36-30-3(a) to counties, the subsection would not invalidate a county's contract with a company for the placement of bus benches at transit system stops. Board of Comm'rs v. Chatham Advertisers, 258 Ga. 498 , 371 S.E.2d 850 (1988).

Employee pay raises. - County employees could not establish a promissory estoppel claim that the county could not promise mandatory annual four percent pay raises. Johnson v. Fulton County, 235 Ga. App. 277 , 509 S.E.2d 355 (1998).

City not bound by county's issuance of fifteen year alcohol license. - Although a nude dancing business had entered into a 15-year contract with the newly-incorporated city's predecessor (the county) for an alcohol license, the city was not bound by the county's agreement pursuant to O.C.G.A. § 36-30-3(a) . Trop, Inc. v. City of Brookhaven, 296 Ga. 85 , 764 S.E.2d 398 (2014).

OPINIONS OF THE ATTORNEY GENERAL

Acts which a city cannot do by an ordinance cannot be done by a contract. 1965-66 Op. Att'y Gen. No. 65-42.

Contract restricting governmental powers. - While a contract can be entered into which extends beyond the terms of office of a mayor and council members, the fact must be noted that a municipal corporation has no power to make contracts restricting or limiting the municipality's legislative or governmental powers, and a contract which restricts the legislative and governmental powers of future councils is ultra vires and void. 1965-66 Op. Att'y Gen. No. 65-42.

Water supply contract. - Municipalities may enter into a valid and binding contract to provide a system of water supply mutual to all for a period not to exceed 50 years; further, municipalities may not bind themselves by any agreement respecting the sewage system or regulation of the rates of water or sewage, for a period longer than the life of the present council. 1952-53 Op. Att'y Gen. p. 126.

Fixing of water rates is a legislative and governmental power, and one council may not, by contract or ordinance, deprive succeeding councils of this legislative or governmental power; the prohibition extends to counties as well as municipalities. 1969 Op. Att'y Gen. No. 69-336.

Waste water treatment services contracts. - O.C.G.A. § 36-60-2 , permitting municipalities to enter into multi-year contracts to provide industrial waste water treatment services, provides an explicit statutory exception to O.C.G.A. § 36-30-3 and allows contracts between municipalities and certain private entities for periods up to 50 years. The contract must enable the municipality to comply with the state and federal pollution standards and to receive public allotments. In addition, the contract must comply with the statutory requirement that the private corporation be charged a rate never less than the actual cost to the municipality. A contract meeting the above requirements would not violate the statutory prohibition against binding successors in office. 1992 Op. Att'y Gen. No. 92-4.

RESEARCH REFERENCES

Am. Jur. 2d. - 56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, § 137.

C.J.S. - 64 C.J.S., Municipal Corporations, § 1183.

ALR. - Power of board to appoint officer or make contract extending beyond its own term, 70 A.L.R. 794 ; 149 A.L.R. 336 .

36-30-4. Eligibility of members of municipal councils or boards of aldermen for other municipal offices.

A councilman or alderman of a municipal corporation shall be ineligible to hold any other municipal office during the term of office for which the councilman or alderman was chosen unless he first resigns as councilman or alderman before entering such other office. This Code section shall apply to all elected officials of a municipal corporation.

(Ga. L. 1889, p. 181, § 1; Ga. L. 1890-91, p. 226, § 1; Ga. L. 1895, p. 79, § 1; Civil Code 1895, § 739; Ga. L. 1899, p. 26, § 1; Civil Code 1910, § 886; Code 1933, § 69-201; Ga. L. 1957, p. 97, § 1.)

Cross references. - Vacancies created by elected officials qualifying for other office, Ga. Const. 1983, Art. II, Sec. II, Para. V.

Law reviews. - For article, "Cities and Towns in Georgia: A Distinction with a Difference?," see 14 Mercer L. Rev. 385 (1963).

JUDICIAL DECISIONS

Second sentence not restrictive. - Provision that O.C.G.A. § 36-30-4 shall apply to all elected officials of a municipality does not necessarily mean that the statute shall apply solely to such elected officials. Fowler v. Mitcham, 249 Ga. 400 , 291 S.E.2d 515 (1982).

Office of mayor of city or town having more than 2,000 inhabitants is municipal office. Crovatt v. Mason, 101 Ga. 246 , 28 S.E. 891 (1897).

Councilman as member of city-county recreation commission. - Even assuming that councilman's job with a city-county recreation commission could properly be considered a "municipal office" within the ambit of O.C.G.A. § 36-30-4 , and further assuming that the councilman's simultaneous service as councilman would result in an impermissible conflict of interest, it is clear that the result would not be to disqualify the councilman from holding the office of city councilman but rather to render the councilman ineligible to continue the councilman's employment with the commission while serving as a councilman. Hughley v. City of Thomaston, 180 Ga. App. 207 , 348 S.E.2d 570 (1986).

City police officers are municipal officers. - Fact that city police officer has been held to be an officer of the state, does not negate the fact that a police officer is also a municipal officer. Fowler v. Mitcham, 249 Ga. 400 , 291 S.E.2d 515 (1982).

Fact that appellants may have been employees in their position as city police officers does not necessarily contra-indicate their status as office holders in that same position. Fowler v. Mitcham, 249 Ga. 400 , 291 S.E.2d 515 (1982).

City police officer cannot be alderman. - O.C.G.A. § 36-30-4 prohibits one from simultaneously holding office of alderman and police officer of city. Fowler v. Mitcham, 249 Ga. 400 , 291 S.E.2d 515 (1982).

Mayor of city is eligible to hold office of school commissioner. Akerman v. Ford, 116 Ga. 473 , 42 S.E. 777 (1902).

Provision in city charter. - Under a city charter the mayor of a municipality could act not only as mayor, and receive the salary therefor, but could also be elected treasurer of the board of lights and waterworks, of which the mayor was ex officio a member, and receive the compensation fixed by the board for those services. There is no inhibition against one person holding both positions, and receiving both salaries, when authorized by the charter. Board of Lights & Waterworks v. Dobbs, 151 Ga. 53 , 105 S.E. 611 (1921).

Commissioners of a city cannot select and appoint one of themselves as city manager, the office of commissioner and city manager being incompatible. Board of Comm'rs v. Montgomery, 170 Ga. 361 , 153 S.E. 34 (1930).

Alderman ineligible to be board of education member. - An alderman comes under the inhibition of this section, and during such term as alderman is incompetent to hold office as a member of the board of education. Matthews v. Morris, 169 Ga. 723 , 151 S.E. 391 (1930).

Membership on the board of education is a municipal office within the meaning of this section. Matthews v. Morris, 169 Ga. 723 , 151 S.E. 391 (1930).

Membership on board of water commissioners prohibited. - Because the city council of Columbus serves a supervisory and/or appellate function in relation to the board of water commissioners, a conflict of interest would exist if a council member were to serve concurrently on the board. Columbus, Ga. v. Board of Water Comm'rs, 261 Ga. 219 , 403 S.E.2d 791 (1991).

Cited in Walters v. City of Dublin, 262 Ga. 265 , 417 S.E.2d 144 (1992).

OPINIONS OF THE ATTORNEY GENERAL

Scope of section's prohibition. - Prohibition of O.C.G.A. § 36-30-4 applies to all elected city officials. 1982 Op. Att'y Gen. No. U82-27.

This section renders a councilman ineligible to hold another municipal office unless the councilman has resigned the seat on the council at some time prior to entering the second office; the councilman is not required to resign prior to qualifying to run for the second office. 1975 Op. Att'y Gen. No. 75-18.

Council member of a municipality may run for the office of mayor or other municipal office but must resign such council seat prior to taking the second office. 1975 Op. Att'y Gen. No. 75-18.

Date of termination of office. - Officer whose present position will be finally terminated prior to the beginning date of any new office the officer may gain by election, is eligible to seek and hold such second office. 1963-65 Op. Att'y Gen. p. 565.

Council member of a city is ineligible to hold the office of clerk of the city while still holding the office of councilman. 1967 Op. Att'y Gen. No. 67-36.

Trustee of school board. - Member of City Council of Chickamauga cannot lawfully serve as trustee of city school board. 1982 Op. Att'y Gen. No. U82-27.

Recorder of court. - Councilman is prohibited from serving as recorder of the mayor's court. 1983 Op. Att'y Gen. No. U83-61.

Building inspector. - City commissioner cannot simultaneously hold office of city building inspector. 1962 Op. Att'y Gen. p. 333.

County commissioner. - Member of State Agricultural Commodities Commission may simultaneously hold the office of county commissioner. 1976 Op. Att'y Gen. No. U76-30.

Volunteer firefighter. - Dual service as a volunteer firefighter and member of a city council or county commission does not violate the provisions of O.C.G.A. § 36-30-4 or O.C.G.A. § 45-2-2 ; however, cities and counties must determine for themselves, based on the circumstances, whether a common-law conflict of interest exists. 1998 Op. Att'y Gen. No. U98-8.

Position with political committee. - An officer, member, or employee of a political committee is not a "public officer." 1966 Op. Att'y Gen. No. 66-181.

Holding party office. - Since state officials are not prevented from holding city or county offices, and since the positions involved are not ones for which political activity is banned by the rules and regulations of the merit system, a member of the board of commissioners is eligible to hold office on the Democratic executive committee at either the county or state level. 1966 Op. Att'y Gen. No. 66-181.

City commissioner may not sit on city zoning board. - Member of a city commission may not so serve and at the same time serve on a city planning and zoning board. 1971 Op. Att'y Gen. No. U71-107.

RESEARCH REFERENCES

Am. Jur. 2d. - 56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, § 219. 63C Am. Jur. 2d, Public Officers and Employees, §§ 57, 62.

C.J.S. - 62 C.J.S., Municipal Corporations, § 273 et seq.

ALR. - Time as of which eligibility or ineligibility to office is to be determined, 143 A.L.R. 1026 .

36-30-5. Inclusion of residency in annexed territory in computing period of residence necessary to qualify for office.

Whenever the charter of any incorporated municipality provides for a prior period of residency in the municipality as a qualification for the election or appointment of any person to any office or position in the municipal government, residence in territory which is afterwards annexed to the municipality shall be deemed residence within the municipality for the purpose of computing the period of residence to make one eligible to hold such office or position.

(Ga. L. 1963, p. 426, § 1.)

RESEARCH REFERENCES

Am. Jur. 2d. - 56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, § 212.

C.J.S. - 62 C.J.S., Municipal Corporations, §§ 419, 423 et seq.

36-30-6. Voting upon questions by interested councilmembers.

It is improper and illegal for a member of a municipal council to vote upon any question brought before the council in which he is personally interested.

(Civil Code 1895, § 751; Civil Code 1910, § 900; Code 1933, § 69-204.)

History of section. - This Code section is derived from the decision in Daly v. Georgia S. & F.R.R., 80 Ga. 793 , 7 S.E. 146 (1888).

Law reviews. - For article, "Cities and Towns in Georgia: A Distinction with a Difference?," see 14 Mercer L. Rev. 385 (1963). For article surveying important general legal principles of municipal and county government purchasing and contracting in Georgia, see 16 Mercer L. Rev. 371 (1965). For article discussing the impropriety of municipal employees representing their own self-interests in public matters, specifically relating to municipal purchasing, see 5 Ga. St. B.J. 309 (1969). For article discussing the effect of the general criminal statute on self-interest and municipal purchasing ( § 16-10-6 ) on the general statute on votes by municipal councilmen in matters of personal interest (this section) and on local statutory law, see 7 Ga. St. B.J. 431 (1971).

JUDICIAL DECISIONS

"Personal" interest is construed as a "financial" interest. Story v. City of Macon, 205 Ga. 590 , 54 S.E.2d 396 (1949).

Contract void when council member stockholder in benefited corporation. - Contract entered into between a private corporation and a city, under which the corporation is to perform certain work for which payment is to be made out of the city treasury, is void if at the time of the contract's execution one of the members of the city council was also a stockholder in such private corporation and such a contract does not become valid and legal when, subsequently, the interested member of the council sells the stock which the member owned at the time of the execution of the contract. Hardy v. Mayor of Gainesville, 121 Ga. 327 , 48 S.E. 921 (1904).

Contract between a city and a construction company, in which a member of a council is a large stockholder, is null and void, although such member of a council did not vote for the ordinance authorizing such contract, and did not use the member's influence in procuring other members of council to approve and authorize the making of such contract, and although such contract is fair and free from fraud. Montgomery v. City of Atlanta, 162 Ga. 534 , 134 S.E. 152 (1926).

Contract cannot be ratified by resignation of member. - When such an illegal contract has been made, the contract cannot subsequently be ratified by the resignation of the interested councilman and the confirmation of the contract by the council. Montgomery v. City of Atlanta, 162 Ga. 534 , 134 S.E. 152 (1926).

Appointment of depository of which mayor and councilman are officers. - An ordinance naming a certain bank as the city depository and requiring the treasurer of the city to place all the municipal funds coming into the treasurer's hands therein is not necessarily void because the mayor of the city and one of the councilmen voting to adopt the ordinance were respectively officer and director of the bank named as depository. Smith v. City of Winder, 22 Ga. App. 278 , 96 S.E. 14 (1918).

Ownership of land subject of public improvement. - Ownership by a member of a municipal council of land which will be affected by a public improvement does not disqualify the member from voting on such improvement. Story v. City of Macon, 205 Ga. 590 , 54 S.E.2d 396 (1949).

Councilman employed as attorney by contractor. - Abutting owners cannot complain after completion of a municipal contract because of illegal participation in the execution of a municipal contract by a councilman who had been employed as an attorney by the contractor. Cochran v. City of Thomasville, 167 Ga. 579 , 146 S.E. 462 (1928).

Employment by school subject of rezoning. - Fact that a councilman is employed by a school which would benefit from a rezoning which is being voted on is not a sufficient "personal interest" to fall under this section. Crawford v. Brewster, 225 Ga. 404 , 169 S.E.2d 317 (1969), overruled on other grounds, 244 Ga. 765 , 262 S.E.2d 53 (1975).

Cited in Olley Valley Estates, Inc. v. Fussell, 232 Ga. 779 , 208 S.E.2d 801 (1974).

RESEARCH REFERENCES

Am. Jur. 2d. - 56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, § 130.

C.J.S. - 62 C.J.S., Municipal Corporations, § 298.

ALR. - Validity of municipal ordinance as affected by motive of members of council which adopted it, 32 A.L.R. 1517 .

Member of governmental board voting on measure involving his personal interest, 133 A.L.R. 1257 .

36-30-7. Authorization and procedure for surrender of corporate charter.

A municipal corporation in this state is authorized to surrender its corporate charter when such municipal corporation has not functioned under the corporate charter for a period of ten years, by petitioning the superior court of the county in which the municipal corporation lies, such petition being made by a majority of the registered voters of the nonfunctioning municipal corporation. Thereupon, the judge of the superior court may receive the surrendered corporate charter and by order of the court declare the municipal corporation to be dissolved. Any order of any superior court judge dissolving any municipal corporation within this state will be furnished in duplicate to the Secretary of State and shall serve as notice upon the Secretary of State that the municipal corporation has, by order of the court, been dissolved as a municipal corporation.

(Ga. L. 1947, p. 1545, § 1.)

Law reviews. - For article, "Cities and Towns in Georgia: A Distinction with a Difference?," see 14 Mercer L. Rev. 385 (1963). For article, "Selected Oddities in Georgia Municipal Law," see 9 Ga. L. Rev. 783 (1975). For article surveying legislative and judicial developments in Georgia local government law for 1978-79, see 31 Mercer L. Rev. 155 (1979).

JUDICIAL DECISIONS

Editor's notes. - In light of the similarity of the statutory provisions, decisions under former Ga. L. 1872, p. 18, are included in the annotations for this Code section.

Delegation of legislative power to courts. - Basic principle embodied in the separation of powers doctrine is that the legislature cannot delegate legislative power to the courts. This does not mean, however, that the legislature is forbidden from conferring power on the courts to ascertain whether the statutory requirements for dissolution of a municipal charter have been satisfied in particular cases. Harrell v. Courson, 234 Ga. 350 , 216 S.E.2d 105 (1975).

No delegation of legislative authority to voters. - Under the terms of this section, there is no delegation of legislative authority to a majority of the voters of municipalities. Harrell v. Courson, 234 Ga. 350 , 216 S.E.2d 105 (1975).

Cessation of official duties. - Fact that mayor, recorder, and alderman voluntarily ceased to perform their official duties did not operate to terminate corporate existence. Such officers held office until their successors were elected and qualified, though not functioning. Sell v. Turner, 138 Ga. 106 , 74 S.E. 783 (1912) (decided under Ga. L. 1872, p. 18).

Cited in Paige v. Gray, 437 F. Supp. 137 (M.D. Ga. 1977); City of Mt. View v. Clayton County, 242 Ga. 163 , 249 S.E.2d 541 (1978); Turner County v. City of Ashburn, 293 Ga. 739 , 749 S.E.2d 685 (2013).

OPINIONS OF THE ATTORNEY GENERAL

This section provides exclusive method of dissolution. 1963-65 Op. Att'y Gen. p. 519.

RESEARCH REFERENCES

Am. Jur. 2d. - 56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, § 83.

C.J.S. - 62 C.J.S., Municipal Corporations, §§ 131, 137.

36-30-7.1. Inactive municipalities.

  1. On and after July 1, 1995, any municipal corporation in this state shall be deemed an inactive municipality and its charter shall be repealed by operation of law if the municipal corporation fails to meet any of the minimum standards provided in subsection (b) of this Code section for determining an active municipality.
  2. An active municipality is any incorporated municipality in this state the governing body of which meets each of the following minimum standards:
    1. Provides at least three of the following services, either directly or by contract:
      1. Law enforcement;
      2. Fire protection (which may be furnished by a volunteer fire force) and fire safety;
      3. Road and street construction or maintenance;
      4. Solid waste management;
      5. Water supply or distribution or both;
      6. Waste-water treatment;
      7. Storm-water collection and disposal;
      8. Electric or gas utility services;
      9. Enforcement of building, housing, plumbing, and electrical codes and other similar codes;
      10. Planning and zoning; and
      11. Recreational facilities;
    2. Holds at least six regular, monthly or bimonthly, officially recorded public meetings within the 12 months next preceding the execution of the certificate required by subsection (c) of this Code section; and
    3. Qualifies for and holds a regular municipal election as provided by law, other than a municipality which has a governing authority comprised of commissioners or other members who are appointed by a judge of the superior court.
  3. Not later than July 1, 1994, each municipal corporation in this state shall file with the Department of Community Affairs either:
    1. A certification from the governing authority that the municipal corporation meets the minimum standards for determining an active municipality enumerated in subsection (b) of this Code section; or
    2. A certification from the governing authority that the municipal corporation does not meet the minimum standards for determining an active municipality enumerated in subsection (b) of this Code section, including a statement that the governing authority recognizes that its legal existence will under the provisions of this Code section be terminated as of July 1, 1995.
  4. After October 15, 1994, the Department of Community Affairs shall transmit to the governing authority of each municipal corporation in the state either:
    1. A statement confirming that the Department of Community Affairs has received from the municipal corporation the filing required by subsection (c) of this Code section, including  a statement of which type of filing was received from that municipal corporation; or
    2. A statement that the Department of Community Affairs has not received from the municipal corporation the filing required by subsection (c) of this Code section, including a statement that the municipal corporation's legal existence will be terminated as of July 1, 1995, unless such filing is received by December 31, 1994.
  5. A municipal corporation which does not timely make the filing required by subsection (c) of this Code section shall have a grace period until December 31, 1994, to make such filing. However, if such filing is not made by December 31, 1994, the legal status of the municipal corporation shall be the same as that of a municipal corporation which does not meet the minimum standards for determining an active municipality enumerated in subsection (b) of this Code section; and such municipal corporation shall cease to have legal existence as of July 1, 1995.
  6. As quickly as practicable after December 31, 1994, the Department of Community Affairs shall compile a listing of all municipal corporations in this state indicating those whose legal existence will be terminated as of July 1, 1995, and those whose legal existence will not be so terminated.  A certified copy of such listing shall be provided to the Secretary of State and shall be conclusive evidence, acceptable in any court and recordable in any public records, of the termination or continuation of existence of a municipal corporation.  The Secretary of State shall transmit such a certified copy of the listing to the legislative counsel for publication in the Georgia Laws for the year 1995, and all courts of this state may take judicial notice of the listing so published.
  7. Upon the termination of existence of a municipal corporation as provided for in this Code section, the existence of any local authority created by or for such municipal corporation shall likewise terminate on the same date. Upon the termination of any municipal corporation or local authority under this Code section, all assets, property, and legal rights and obligations of the municipal corporation or local authority shall devolve by operation of law upon the governing authority of the county in which the legal situs of the municipal corporation or local authority was located; provided, however, that this devolution of rights and obligations shall in no manner obligate the county to provide continued employment for any employee of the abolished municipal corporation or local authority.  In the case of legal indebtedness of a municipal corporation or local authority devolving upon a county under this Code section, the county shall be authorized but not required to levy a special district tax, fee, or assessment within the formerly incorporated territory (or a portion thereof corresponding to any special district for which the indebtedness was incurred) for the purpose of retiring all or a portion of such indebtedness.  Assets devolved to the county governing authority pursuant to this Code section which are deemed to be excess by the county shall be used to retire any indebtedness of the terminated municipal corporation or local authority. Property devolved to the county governing authority pursuant to this Code section which is deemed to be unnecessary by the county shall be sold and the proceeds from such sale used to retire any indebtedness of the terminated municipal corporation or local authority.
    1. Upon the termination of existence of a municipal corporation as provided in this Code section, the geographic area that was contained in the boundaries of the former municipal corporation may continue to be identified under the same name and style as the former municipal corporation, and for such purpose signs and other appropriate insignia may be erected for such identification.
    2. The Department of Community Affairs shall establish a designation of "historic township" for communities created on or before 1900, provide for the establishment of unincorporated town councils, provide a procedure for converting such municipalities to townships, and for registration of such.
  9. At the session of the General Assembly held in the year 1996 only, a new charter may be granted to a municipal corporation which ceased to exist under the provisions of this Code section solely because of a failure to make the required filing with the Department of Community Affairs (not including any case where the municipal corporation failed to meet the minimum standards of an active municipality enumerated in subsection (b) of this Code section), without regard to the minimum standards for incorporation set out in Chapter 31 of this title. In such a case the local law granting the new charter shall have attached thereto, in lieu of the certificate otherwise required by Code Section 36-31-5, a certificate by the author of the bill stating that the requirements of this subsection are met by the municipal corporation being reincorporated. In any such case assets and property and rights and obligations which devolved upon the county shall be retransferred from the county back to the municipal corporation.
  10. In any case in which the legal dissolution of a municipal corporation has not been certified under the provisions of subsection (f) of this Code section but the municipal corporation does not in fact meet the minimum standards for determining an active municipality enumerated in subsection (b) of this Code section, any citizen of the municipal corporation or the county in which the legal situs of the municipal corporation is located may bring at any time on or after July 1, 1995, a declaratory judgment action for a declaration of the dissolution of the municipal corporation. Any such action shall be brought in the superior court of the county wherein the legal situs of the municipal corporation is located.  If a judgment is entered declaring the dissolution of the municipal corporation, the court shall file a certified copy of the judgment with the Secretary of State and the legislative counsel.  A copy of such judgment shall be published in the next publication of the annual session laws with the same status and effect provided for in subsection (f) of this Code section; and a certified copy of the judgment from the court or the Secretary of State shall have the same status and effect as described in subsection (f) of this Code section. (Code 1981, § 36-30-7.1 , enacted by Ga. L. 1993, p. 1579, § 1; Ga. L. 1996, p. 6, § 36.)

Code Commission notes. - Pursuant to Code Section 28-9-5, in 1993, "Recreational facilities" was substituted for "Recreational Facilities" in subparagraph (b)(1)(K), the paragraph (1) and (2) designations were added in subsection (h), and a comma was inserted following "to townships" in paragraph (h)(2).

Law reviews. - For annual survey article on local government law, see 52 Mercer L. Rev. 341 (2000). For note on 1993 enactment of this Code section, see 10 Ga. St. U. L. Rev. 160 (1993).

JUDICIAL DECISIONS

Standing to bring action to dissolve city. - Subsection (j) of O.C.G.A. § 36-30-7.1 , authorizing "any citizen" to bring an action for dissolution of a city, does not apply only to those municipalities which the Georgia Department of Community Affairs omitted from the list of inactive and active municipalities compiled pursuant to subsection (f) of O.C.G.A. § 36-30-7.1 . City of Lithia Springs v. Turley, 241 Ga. App. 472 , 526 S.E.2d 364 (1999).

Unified government meets the statutory criteria of an "active municipality." Athens-Clarke County v. Walton Elec. Membership Corp., 265 Ga. 229 , 454 S.E.2d 510 (1995).

City meets requirements of an active municipality. - City's contract with county under which the county provided law enforcement, street construction and maintenance, solid waste collection, and recreational services in consideration of the county's receipt of sales taxes was valid and showed that the city met the requirements of an active municipality. Sherrer v. City of Pulaski, 228 Ga. App. 78 , 491 S.E.2d 129 (1997).

Order dissolving a city was vacated since it was determined that the city provided road or street construction or maintenance services and water supply services and since there were issues of fact as to whether the city provided fire protection services, enforcement of the city's building code, or planning and zoning services. City of Lithia Springs v. Turley, 241 Ga. App. 472 , 526 S.E.2d 364 (1999).

36-30-8. Confinement of violators of ordinances.

The right and power to organize work gangs or other means of confinement and to confine at labor therein, for a term not exceeding 30 days, persons convicted of violating the ordinances of municipal corporations is conferred on the municipal corporations or their respective authorities. In addition to other punishment allowed by law, municipal corporations, by and through their municipal courts, shall have the right and power to punish persons convicted of violating the ordinances of such municipal corporations by confinement or confinement at labor for a period of time not to exceed 30 days.

(Ga. L. 1880-81, p. 179, § 1; Code 1933, § 69-205.)

Law reviews. - For article, "Cities and Towns in Georgia: A Distinction with a Difference?," see 14 Mercer L. Rev. 385 (1963).

JUDICIAL DECISIONS

One purpose of this section is the broadening of powers of municipalities by permitting the imposition of an alternative sentence, which had previously been held to be taboo because it was coercive in nature. City of Albany v. Key, 124 Ga. App. 16 , 183 S.E.2d 20 (1971).

This section is permissive, and not mandatory. City of Albany v. Key, 124 Ga. App. 16 , 183 S.E.2d 20 (1971).

RESEARCH REFERENCES

Am. Jur. 2d. - 21A Am. Jur. 2d, Criminal Law, §§ 862, 863. 56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, § 361.

C.J.S. - 72 C.J.S., Prisons and Rights of Prisoners, §§ 1, 4.

36-30-9. Compensation of law enforcement officers.

It shall be unlawful for any municipal corporation to provide commissions or percentages of any fines and bond forfeitures derived from any arrests made by law enforcement officers as compensation or any part thereof. The sole basis of compensating such employees shall be by a fixed salary, to be provided by the governing authority of such municipal corporation.

(Ga. L. 1963, p. 479, § 1; Ga. L. 2015, p. 693, § 3-32/HB 233.)

Editor's notes. - Ga. L. 2015, p. 693, § 4-1/HB 233, not codified by the General Assembly, provides that: "This Act shall become effective on July 1, 2015, and shall apply to seizures of property for forfeiture that occur on or after that date. Any such seizure that occurs before July 1, 2015, shall be governed by the statute in effect at the time of such seizure."

Law reviews. - For article on the 2015 amendment of this Code section, see 32 Ga. St. U. L. Rev. 1 (2015).

RESEARCH REFERENCES

Am. Jur. 2d. - 70 Am. Jur. 2d, Sheriffs, Police, and Constables, §§ 41, 42, 45.

C.J.S. - 63 C.J.S., Municipal Corporations, § 634 et seq.

36-30-10. Grant of right to obstruct public street prohibited.

Without express legislative authority, a municipal corporation may not grant to any person the right to erect or maintain a structure or obstruction in a public street.

(Civil Code 1895, § 745; Civil Code 1910, § 894; Code 1933, § 69-304.)

History of section. - This Code section is derived from the decision in Laing v. Mayor of Americus, 86 Ga. 756 , 13 S.E. 107 (1891).

Law reviews. - For article, "Cities and Towns in Georgia: A Distinction with a Difference?," see 14 Mercer L. Rev. 385 (1963).

JUDICIAL DECISIONS

ANALYSIS

General Consideration

General application of this section has been to deny a city's right to permit obstructions that would constitute a nuisance and impede travel. City Council v. Shields, 108 Ga. App. 790 , 134 S.E.2d 481 (1963).

Delegability of power to abolish, vacate or close street. - Legislature may delegate to a municipal corporation the power to abolish, vacate, or close a street in a municipality. When a street is abolished or closed by a municipality by virtue of such delegated power, the interest of the public therein ceases, and the owners of the fee, who are presumptively the abutting landowners, become entitled to use the property without regard to the former servitude imposed upon the land. Harbuck v. Richland Box Co., 207 Ga. 537 , 63 S.E.2d 333 (1951).

Streets are primarily intended for the use of travelers; and a municipal corporation has no power, in the absence of express legislative authority, to allow a street to be used for any other purpose. City Council v. Reynolds, 122 Ga. 754 , 50 S.E. 998 (1905).

Obstruction defined. - Any permanent structure in a road which materially interferes with travel is a nuisance per se, and any obstruction permanent in nature or continuously maintained which interferes with the free use of the road by the public is a public nuisance, and it is immaterial that space may be left on either side of the obstruction for the passage of the public. The public has the right to the unobstructed use of the whole road as the road was acquired by the county or city. Harbuck v. Richland Box Co., 204 Ga. 352 , 49 S.E.2d 883 (1948).

Use of streets not absolute. - Use of streets and highways is not absolute and unrestricted, but is subject to reasonable regulation. Schlesinger v. City of Atlanta, 161 Ga. 148 , 129 S.E. 861 (1925).

Limitations on right of public use. - Right of the public to the free and unobstructed use of a street or public way is subject to reasonable and necessary limitations. The right to temporarily obstruct the street springs from the necessities of the case, and such right is necessarily limited by the necessity existing. Those who exercise the right must do so in such manner as will create the least possible inconvenience to others, and the impediment must be removed within a reasonable time. Harbuck v. Richland Box Co., 204 Ga. 352 , 49 S.E.2d 883 (1948).

Section not basis for municipal liability. - In the planning and the construction of a safety zone on a city street, the city was engaged in a governmental function and could not be held liable for any error in judgment in such planning. Beall v. City of Atlanta, 72 Ga. App. 760 , 34 S.E.2d 918 (1945).

This section is not primarily a safety measure, and is not a basis for liability for injury caused indirectly by a condition in or adjacent to the traveled portion of the street. City Council v. Shields, 108 Ga. App. 790 , 134 S.E.2d 481 (1963).

Cited in Neal & Son v. Burch, 173 Ga. 840 , 162 S.E. 135 (1931); City of Moultrie v. Colquitt County Rural Elec. Co., 211 Ga. 842 , 89 S.E.2d 657 (1955); Southern Bell Tel. & Tel. Co. v. Martin, 229 Ga. 881 , 194 S.E.2d 910 (1972); Georgia Power Co. v. Zimmerman, 133 Ga. App. 786 , 213 S.E.2d 12 (1975).

Specific Obstructions

Permanent structures. - Municipal corporation has no power, in the absence of express legislative authority, to authorize the erection of permanent structures in a public street, which interfere with the free use of such street by the public. Savannah & W.R.R. v. Woodruff, 86 Ga. 94 , 13 S.E. 156 (1890); Laing v. Mayor of Americus, 86 Ga. 756 , 13 S.E. 107 (1891); City Council v. Jackson, 20 Ga. App. 710 , 93 S.E. 304 (1917); Mayor of Savannah v. Markowitz, 155 Ga. 870 , 118 S.E. 558 (1923).

Permissibility of noninterfering structures. - Permanent structures which do not interfere with travel and which are erected for public purposes, such as telegraph and telephone poles, and the like, are permissible. But no permanent structure of any character which interferes in the slightest degree with the right of travel upon the street is ever permissible if such structure is erected for purely private purposes. City Council v. Reynolds, 122 Ga. 754 , 50 S.E. 998 (1905).

Temporary obstructions. - Temporary obstructions in a street are permissible under certain circumstances, even if the obstruction is for the benefit or convenience of an individual. The general rule is that if the purpose for which the obstruction is created is lawful, and the obstruction exists only for such a time as is reasonably necessary to accomplish the purpose which brings about the necessity for the obstruction, such an obstruction would not be a public nuisance. City Council v. Reynolds, 122 Ga. 754 , 50 S.E. 998 (1905).

Any temporary obstruction in a public street is presumptively a public nuisance, and it is incumbent upon the persons responsible for the presence of such obstruction to show that the destruction was placed in the street in furtherance of a lawful and legitimate purpose, and has not been continued any longer than was reasonably necessary for the accomplishment of this purpose. City Council v. Reynolds, 122 Ga. 754 , 50 S.E. 998 (1905).

Expenses incurred in erecting obstruction no defense. - It is no reason for not removing the obstructions from a street that the plaintiff has incurred expense in erecting and maintaining the obstruction, and no lapse of time will render the license irrevocable. Laing v. Mayor of Americus, 86 Ga. 756 , 13 S.E. 107 (1891); Mayor of Savannah v. Markowitz, 155 Ga. 870 , 118 S.E. 558 (1923).

Obstructions "for purely private gain" are not permissible. - Streets are primarily intended for the use of travelers, and any permanent structure in a street which materially interferes with travel thereon is a public nuisance. Permanent structures which do not interfere with travel, and which are erected for public purposes, such as telegraph and telephone poles, and the like, are permissible. City Council v. Reynolds, 122 Ga. 754 , 50 S.E. 998 (1905); Butler v. City of Atlanta, 47 Ga. App. 341 , 170 S.E. 539 (1933).

Fair in public street a nuisance. City Council v. Reynolds, 122 Ga. 754 , 50 S.E. 998 (1905).

Constitutionality of restriction of buses. - Use of streets by common carriers for the purpose of gain is extraordinary and may be conditioned or prohibited as the legislature or municipality deems proper. Hence, if the state or city determines that the use of streets by buses should be restricted or prohibited there is nothing in the Constitution of the United States or this state which prohibits such action. Schlesinger v. City of Atlanta, 161 Ga. 148 , 129 S.E. 861 (1925).

Use by streetcars. - Legislature has expressly given to cities the power to permit the use of streets for the operation of streetcars, and has conferred upon the city commissioners the authority to determine the location of trolley poles by provisions of former Code 1933, § 94-301 (see now O.C.G.A. § 46-8-100(5) ). Townsend v. Georgia Power Co., 44 Ga. App. 132 , 160 S.E. 712 (1931).

Medians. - When a median does not interfere with the plaintiffs' ingress and egress to plaintiff's properties but requires mere circuity of travel only, abutting landowners have no cause of action as this section does not apply. Hadwin v. Mayor of Savannah, 221 Ga. 148 , 143 S.E.2d 734 (1965).

Construction of "safety islands". - Municipality and street railroad companies operating within its limits have the power, without being guilty of maintaining a nuisance or committing thereby an act of negligence per se, to authorize the construction and maintenance of, and to construct and maintain under such municipal authority, what are termed "safety islands" or "safety zones" in streets at the side of a streetcar line, for the use and safety of the public from automobile and other traffic when entering and departing from streetcars. Butler v. City of Atlanta, 47 Ga. App. 341 , 170 S.E. 539 (1933).

Municipal ordinance which was an attempt to vacate 20 feet of a public street for the benefit of a private corporation is in excess of statutory authority. Harbuck v. Richland Box Co., 204 Ga. 352 , 49 S.E.2d 883 (1948).

Constructing bridges. - City may in the proper exercise of the city's discretion, and as a movement in the direction of public improvement, build a bridge in one of the city's streets, and, incidentally, close the street during the reasonable duration of the work. In like manner, the municipal authorities may authorize a railroad company to build the bridge for the benefit of the city, giving the company power to close the street for a reasonable time while the work is being done. Adair v. City of Atlanta, 124 Ga. 288 , 52 S.E. 739 (1905).

City's right to obstruct street. - When it is not prohibited by law, a city may legally erect and maintain an obstruction in one of the city's streets, provided the obstruction is not dangerous, and does not constitute an unreasonable interference with the lawful use of the street. South Ga. Power Co. v. Smith, 42 Ga. App. 100 , 155 S.E. 80 (1930).

RESEARCH REFERENCES

C.J.S. - 64 C.J.S., Municipal Corporations, §§ 1884, 1885.

ALR. - Power of municipality to permit permanent loading platforms in street, 11 A.L.R. 442 .

Power to close or obstruct street temporarily to permit its use for purposes of sport or entertainment, 34 A.L.R. 270 .

Validity, construction, and application of ordinances prohibiting or regulating "curb service", 111 A.L.R. 131 .

Municipality's power to permit private owner to construct building or structure overhanging or crossing the air space above public street or sidewalk, 76 A.L.R.2d 896.

Authorization, prohibition, or regulation by municipality of the sale of merchandise on streets or highways, or their use for such purpose, 14 A.L.R.3d 896.

36-30-11. Enclosure of lanes or alleys.

The municipal authorities of any municipal corporation are authorized to permit the enclosure of any lane, alley, or portion thereof in such municipal corporation when the owners of the lots abutting on such lane or alley and the owners of any other lots to the enjoyment of which access through such lane or alley is necessary consent thereto. Such municipal authorities shall have the right at any time to reopen such lane or alley.

(Ga. L. 1878-79, p. 174, § 1; Code 1933, § 69-207.)

Law reviews. - For article, "Cities and Towns in Georgia: A Distinction with a Difference?," see 14 Mercer L. Rev. 385 (1963).

RESEARCH REFERENCES

Am. Jur. 2d. - 39 Am. Jur. 2d, Highways, Streets, and Bridges, § 246 et seq.

C.J.S. - 64 C.J.S., Municipal Corporations, § 1805 et seq.

ALR. - Right of public to use alley, 58 A.L.R. 239 .

36-30-12. Closing streets adjacent to or through institutions of higher learning in municipal corporations having a population of 350,000 or more.

In all municipal corporations of this state having a population of 350,000 or more according to the United States decennial census of 1980 or any future such census, the municipal authorities of such municipal corporations are authorized to close any municipal streets adjacent to or through institutions of higher learning during any hours in which the municipal authorities determine that it is in the best interest of the public safety and welfare to do so. For the purposes of this Code section, "public safety and welfare" shall be defined to include not only considerations of the flow of traffic, but may also include a determination that to close said streets during such hours will enhance police protection on said streets.

(Code 1981, § 36-30-12 , enacted by Ga. L. 1982, p. 1177, § 1; Ga. L. 1983, p. 3, § 27; Ga. L. 1991, p. 989, § 2.)

36-30-13. Special election to fill vacancies when all seats are vacant.

Except as provided in subsection (g) of Code Section 21-4-13, in the event that all seats on the governing authority of a municipality are vacant, the election superintendent of the county in which the municipality is located shall have the authority to call for a special election to fill the vacant offices and to conduct, or to appoint a superintendent of elections for the municipality for the purpose of conducting, the special election. The board of registrars for the county shall prepare the electors list for the special election.

(Code 1981, § 36-30-13 , enacted by Ga. L. 1987, p. 178, § 1; Ga. L. 1990, p. 8, § 36.)

CHAPTER 31 INCORPORATION OF MUNICIPAL CORPORATIONS

Sec.

36-31-1. Legislative intent.

It is declared to be the intention of the General Assembly to prescribe certain minimum standards which must exist as a condition precedent to the original incorporation of a municipal corporation of this state.

(Ga. L. 1963, p. 251, § 1.)

Law reviews. - For article surveying history of grant of municipal charters in Georgia, see 11 Ga. B. J. 133 (1948).

JUDICIAL DECISIONS

Cited in City of Atlanta v. Mays, 301 Ga. 367 , 801 S.E.2d 1 (2017).

RESEARCH REFERENCES

Am. Jur. 2d. - 56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, § 13.

C.J.S. - 62 C.J.S., Municipal Corporations, § 11.

36-31-2. Two-year inapplicability of provisions regarding inactive municipalities.

When a municipal corporation is created by local Act as authorized in this chapter, the provisions of Code Section 36-30-7.1 shall not apply for two years from the date the first elected officials of such municipal corporation take office. No later than July 1 following the expiration of such two-year period, the governing authority of the municipal corporation shall file a certification with the Department of Community Affairs stating whether the municipal corporation does or does not meet the standards for an active municipality under subsection (b) of Code Section 36-30-7.1.

(Ga. L. 1963, p. 251, § 2; Ga. L. 1967, p. 718, § 1; Ga. L. 1971, p. 90, § 1; Ga. L. 1996, p. 399, § 1; Ga. L. 2005, p. 185, § 1/HB 36.)

Editor's notes. - Ga. L. 2005, p. 185, § 5/HB 36, not codified by the General Assembly, provides for severability.

Ga. L. 2005, p. 185, § 6/HB 36, not codified by the General Assembly, provides that the Act shall apply with respect to any local Act enacted at the 2005 regular session of the General Assembly or any future session.

JUDICIAL DECISIONS

Section not retroactive. - When a municipality was created prior to this section, the restrictions of this section do not apply to an amendatory Act. To construe this section as applicable to acts amending the corporate powers of municipalities in existence prior to this section would violate the statute's plain and unambiguous language, and the constitutional prohibition against enactment of retroactive laws. Brown v. City of Marietta, 220 Ga. 826 , 142 S.E.2d 235 (1965).

Cited in Meredith v. Meredith, 240 Ga. 226 , 240 S.E.2d 75 (1977); City of Atlanta v. Mays, 301 Ga. 367 , 801 S.E.2d 1 (2017).

RESEARCH REFERENCES

C.J.S. - 62 C.J.S., Municipal Corporations, § 13.

36-31-3. Minimum population standards for proposed municipal corporation.

To be eligible for original incorporation as a municipal corporation, the minimum population standards of the area embraced within the proposed municipal boundary shall be as follows:

  1. A to