Atlanta Metro Associated Plumbing Contractors, Inc. v. Maloof

386 S.E.2d 338, 259 Ga. 777, 1989 Ga. LEXIS 500

Opinion

Smith, Justice.

In December of 1988, the DeKalb County Board of Commissioners passed a resolution establishing a new sewer service policy. Under the new policy, DeKalb County offered sewer services on privately owned sewer lines for a fee. These services included cleaning out, replacing and installing “cleanouts” (grade level access openings to sewer lines). The appellants, an individual plumber and two plumbers’ associations, sought injunctive relief, complaining that DeKalb County’s use of public employees and funds to perform work on private property was beyond the scope of the County’s constitutional authority and in direct, illegal competition with private industry. The trial court disagreed and denied the appellants’ petition for injunctive relief.

This case is controlled by Keen v. Mayor &c. of Waycross, 101 Ga. 588 (29 SE 42) (1897) and Tift County Hosp. Auth. v. MRS of Tifton, Georgia, Inc., 255 Ga. 164 (335 SE2d 546) (1985).¹ DeKalb County’s actions in pursuing an independent business enterprise were clearly ultra vires, and the trial court erred in denying the appellants’ petition for injunctive relief.

Decided November 30, 1989 Reconsideration denied January 10, 1990. Alan C. Harvey, Wendell K. Willard, for appellants. Joan F. Roach, for appellees.

Judgment reversed.

All the Justices concur.

1 The appellee urges this Court to rely upon Lee v. City of Atlanta, 197 Ga. 518 (29 SE2d 774) (1944), which held that the City could install, service, and maintain burglar alarm systems for a fee as a governmental function, even if in competition with private suppliers. As this case dealt primarily with the City’s power to “apprehen[d] criminals and suppress[] crime” as part of the police powers of the municipality, it is inapplicable to support appellee’s argument that it may provide sewage services in competition with private suppliers. The appellee further argues that if it is prohibited from performing sewage services on private property, then it is also prohibited from performing police, fire, and ambulance services on private property. Of course, the provision of these services on private property is allowed under Lee.