Georgia Power Company v. City of Cedartown

Supreme Court of Georgia

Georgia Power Company v. City of Cedartown

156 S.E.2d 51, 223 Ga. 453, 1967 Ga. LEXIS 565

CourtSupreme Court of Georgia

DecidedJune 22, 1967

Docket24114

StatusPublished

Cited by2 cases

This text of 156 S.E.2d 51 (Georgia Power Company v. City of Cedartown) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Georgia Power Company v. City of Cedartown, 156 S.E.2d 51, 223 Ga. 453, 1967 Ga. LEXIS 565 (Ga. 1967).

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Opinion

Grice, Justice.

This is a suit by a municipality seeking a declaratory judgment that an electric power company’s franchise to operate in the city is invalid for lack of authority of the city when it purported to grant such franchise. In its answer the power company, among other matters, asserted that the transaction whereby it had obtained the franchise was authorized by the city’s charter and also had been recognized and ratified by specified Acts of the General Assembly. The trial court overruled the power company’s demurrers to the municipality’s petition, sustained all except one of the municipality’s demurrers to the power company’s answer, and dismissed the answer.

In the appeal from such rulings it is claimed that this court has jurisdiction because constitutional questions are raised by the municipality’s demurrers to several portions of the power company’s answer, which demurrers were sustained and error enumerated thereon. Insofar as this question of jurisdiction is concerned, all of these grounds of demurrer are substantially the same. They assert, in essence, that the Acts of the General Assembly referred to in specified portions of the answer, “to the extent that they had the effect, alleged in said answer, to recognize and ratify a municipal ordinance purporting to grant a franchise” violate designated provisions of the State Constitution. Other grounds of the municipality’s demurrer, however, urged that the Acts did not have such effect.

The attempted constitutional attacks are subject to the same defects as those ruled upon by this court in Richmond Concrete Products Co. v. Ward, 212 Ga. 773, 775 (95 SE2d 677). There, it was contended that a certain chapter of the Code was unconstitutional “insofar as it attempts to penalize defendant corporations for . . .” This court held that no constitutional question was raised since the above quoted *454 words "are not a definite and positive allegation by the pleader that any particular part of the chapter . . . does in fact accomplish such invalid result,” and “are not at all inconsistent with the legal presumption that the chapter . . . does not to any extent undertake an accomplishment of the unlawful object complained of; and where an allegation is equivocal, doubtful, or subject to different interpretations, it will be construed most strongly against the pleader.” See also, Gormley v. Searcy, 179 Ga. 389, 397 (175 SE 913); Dade County v. State of Georgia, 201 Ga. 241, 245-246 (39 SE2d 473); Flynn v. State, 209 Ga. 519 (74 SE2d 461).

Argued June 12,1967 — Decided June 22, 1967— Rehearing-denied July 6,1967. Troutman, Sams, Schroder & Lockerman, William H. Schroder, Tench C. Coxe, Harold C. McKenzie, Jr., Milton A. Carlton, Jr., Rogers, Magruder & Hoyt, Jack Rogers, for appellant. Glenn T. York, Jr., Matthews, Maddox, Walton & Smith, John W. Maddox, for appellee.

Since there is no basis for this court’s jurisdiction, the case is Transferred to the Court of Appeals.

All the Justices concur.

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Grice, Justice.

This is a suit by a municipality seeking a declaratory judgment that an electric power company’s franchise to operate in the city is invalid for lack of authority of the city when it purported to grant such franchise. In its answer the power company, among other matters, asserted that the transaction whereby it had obtained the franchise was authorized by the city’s charter and also had been recognized and ratified by specified Acts of the General Assembly. The trial court overruled the power company’s demurrers to the municipality’s petition, sustained all except one of the municipality’s demurrers to the power company’s answer, and dismissed the answer.

In the appeal from such rulings it is claimed that this court has jurisdiction because constitutional questions are raised by the municipality’s demurrers to several portions of the power company’s answer, which demurrers were sustained and error enumerated thereon. Insofar as this question of jurisdiction is concerned, all of these grounds of demurrer are substantially the same. They assert, in essence, that the Acts of the General Assembly referred to in specified portions of the answer, “to the extent that they had the effect, alleged in said answer, to recognize and ratify a municipal ordinance purporting to grant a franchise” violate designated provisions of the State Constitution. Other grounds of the municipality’s demurrer, however, urged that the Acts did not have such effect.

The attempted constitutional attacks are subject to the same defects as those ruled upon by this court in Richmond Concrete Products Co. v. Ward, 212 Ga. 773, 775 (95 SE2d 677). There, it was contended that a certain chapter of the Code was unconstitutional “insofar as it attempts to penalize defendant corporations for . . .” This court held that no constitutional question was raised since the above quoted *454 words "are not a definite and positive allegation by the pleader that any particular part of the chapter . . . does in fact accomplish such invalid result,” and “are not at all inconsistent with the legal presumption that the chapter . . . does not to any extent undertake an accomplishment of the unlawful object complained of; and where an allegation is equivocal, doubtful, or subject to different interpretations, it will be construed most strongly against the pleader.” See also, Gormley v. Searcy, 179 Ga. 389, 397 (175 SE 913); Dade County v. State of Georgia, 201 Ga. 241, 245-246 (39 SE2d 473); Flynn v. State, 209 Ga. 519 (74 SE2d 461).

Argued June 12,1967 — Decided June 22, 1967— Rehearing-denied July 6,1967. Troutman, Sams, Schroder & Lockerman, William H. Schroder, Tench C. Coxe, Harold C. McKenzie, Jr., Milton A. Carlton, Jr., Rogers, Magruder & Hoyt, Jack Rogers, for appellant. Glenn T. York, Jr., Matthews, Maddox, Walton & Smith, John W. Maddox, for appellee.

Since there is no basis for this court’s jurisdiction, the case is Transferred to the Court of Appeals.

All the Justices concur.

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Bluebook (online)

156 S.E.2d 51, 223 Ga. 453, 1967 Ga. LEXIS 565, Counsel Stack Legal Research, https://law.counselstack.com/opinion/georgia-power-company-v-city-of-cedartown-ga-1967.

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