GA Code § 36-35-6 (2021)
2021 Georgia Code|Title 36 - Local Government|Chapter 35 - Home Rule Powers|§ 36-35-6. Limitations on Home Rule Powers

  The power granted to municipal corporations in subsections (a) and (b) of Code Section 36-35-3 shall not be construed to extend to the following matters or to any other matters which the General Assembly by general law has preempted or may hereafter preempt; but such matters shall be the subject of general law or the subject of local Acts of the General Assembly to the extent that the enactment of such local Acts is otherwise permitted under the Constitution:   Action affecting the composition and form of the municipal governing authority, the procedure for election or appointment of the members thereof, and the continuance in office and limitation thereon for such members, except as authorized in Chapter 2 of Title 21 or as provided in Code Section 36-35-4.1;     Action defining any offense, which so defined, is also an offense under the criminal laws of Georgia;   Action providing for confinement in excess of six months; and   Action providing for fines and bond forfeitures in excess of $1,000.00;     Action adopting any form of taxation beyond that authorized by law or by the Constitution;   Action affecting the exercise of the power of eminent domain;   Action expanding the power of regulation over any business activity regulated by the Public Service Commission beyond that authorized by charter or general law or by the Constitution;   Action affecting the jurisdiction of any court; and   Action changing charter provisions relating to the establishment and operations of an independent school system.     The power granted in subsections (a) and (b) of Code Section 36-35-3 shall not include the power to take any action affecting the private or civil law governing private or civil relationships, except as is incident to the exercise of an independent governmental power.   Nothing in this Code section shall affect Code Sections 36-35-4 and 36-35-5.    (Ga. L. 1965, p. 298, § 4; Ga. L. 1966, p. 296, §§ 2, 3; Ga. L. 1970, p. 346, § 1; Ga. L. 1973, p. 778, § 3; Ga. L. 1981, p. 497, § 1; Ga. L. 1983, p. 468, §§ 1, 2; Ga. L. 1984, p. 22, § 36; Ga. L. 1998, p. 295, § 3; 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, "The Municipal Home Rule Act of 1965 (this chapter)," see 3 Ga. St. B. J. 333 (1967). For article surveying legislative and judicial developments in Georgia local government law for 1978-79, see 31 Mercer L. Rev. 155 (1979). For annual survey of local government law, see 56 Mercer L. Rev. 351 (2004). For article on the 2015 amendment of this Code section, see 32 Ga. St. U. L. Rev. 1 (2015).   JUDICIAL DECISIONS    Although the meaning of O.C.G.A. § 36-35-6 (b) is ambiguous, the statute indicates that the state does not wish to give our cities the power to enact a distinctive law of contract. City of Atlanta v. McKinney, 265 Ga. 161, 454 S.E.2d 517 (1995).   Cities without power to adopt new charters changing form of government.    - Under Ga. Const. 1945, Art. XV, Sec. I, Para. I (see now Ga. Const. 1983, Art. IX, Sec. II, Para. II), and this section, cities do not have the power to adopt entirely new charters changing a cities' form of government. Thus, a new charter created by a special law does not contravene Ga. Const. 1945, Art. I, Sec. IV, Para. I (see now Ga. Const. 1983, Art. III, Sec. VI, Para. IV.), which forbids the legislature from adopting a special law covering a subject matter dealt with by an existing general law. Jackson v. Inman, 232 Ga. 566, 207 S.E.2d 475 (1974).    Fundamental and substantive changes in city government cannot be made by a municipality under general home rule laws. Bruck v. City of Temple, 240 Ga. 411, 240 S.E.2d 876 (1977).    General Assembly has reserved legislative power to enact new charters for existing cities when such charters include drastic changes in the composition and form of city government, and the election and terms of office of the members of the governing authority of cities. Bruck v. City of Temple, 240 Ga. 411, 240 S.E.2d 876 (1977).   Retention by General Assembly of power to extend municipal boundaries.    - Existence of prior statutes permitting the enlargement of boundaries does not deprive the General Assembly of the power to alter and extend municipal boundaries without the consent of the persons affected thereby. Lee v. City of Jesup, 222 Ga. 530, 150 S.E.2d 836 (1966), cert. denied, 386 U.S. 993, 87 S. Ct. 1307, 18 L. Ed. 2d 337 (1967).   Constitutionality of local law extending municipal boundaries.    - Local law extending municipal boundaries does not violate the constitutional guarantee of due process of the law because the law subjects property owners in the area annexed to taxation by the municipality; nor does the law deny to such property owners equal protection of the law within the meaning of U.S. Const., amend. 14. Lee v. City of Jesup, 222 Ga. 530, 150 S.E.2d 836 (1966), cert. denied, 386 U.S. 993, 87 S. Ct. 1307, 18 L. Ed. 2d 337 (1967).    Statute does not provide the sole method by which the General Assembly may amend the city charter so as to change city boundaries. Lee v. City of Jesup, 222 Ga. 530, 150 S.E.2d 836 (1966), cert. denied, 386 U.S. 993, 87 S. Ct. 1307, 18 L. Ed. 2d 337 (1967).    There is no requirement, statutory or otherwise, that local annexation statute itself make provisions for myriad adjustments between the annexed territory and the municipality which the annexation necessitates. Bruck v. City of Temple, 240 Ga. 411, 240 S.E.2d 876 (1977).    Both county governments and municipalities may levy taxes for public purposes connected with administration of county and city governments; as a corollary to this principle, it follows that counties and municipalities may appropriate and expend money for such public purpose. Peacock v. Georgia Mun. Ass'n, 247 Ga. 740, 279 S.E.2d 434 (1981).   Statute prohibiting wrecker service from refusing checks and credit cards constitutional.    - City code section which made it unlawful for a wrecker service to refuse to accept checks and major credit cards is constitutional, and is not ultra vires under the home rule powers conferred by subsection (a) of O.C.G.A. § 36-35-6. Upton v. City of Atlanta, 260 Ga. 250, 392 S.E.2d 244 (1990).   Municipal court not improperly divested of jurisdiction.    - Establishment by a city council of the Atlanta, Georgia, Bureau of Taxicabs and Vehicles for Hire, and the authorization of an administrative hearing procedure for the enforcement of the regulation of taxicabs was not an ultra vires act because it did not improperly divest the municipal court of jurisdiction to hear such cases under O.C.G.A. § 36-35-6(a)(6); the provisions of the city charter were consistent with the concept of concurrent jurisdiction, and the city had the power to regulate and license vehicles for hire and to create boards and commissions under the city charter. Atlanta Taxicab Co. Owners Ass'n v. City of Atlanta, 281 Ga. 342, 638 S.E.2d 307 (2006).    Cited in Dodson v. Graham, 462 F.2d 144 (5th Cir. 1972); State v. Golia, 235 Ga. 791, 222 S.E.2d 27 (1976); Lambert v. City of Atlanta, 242 Ga. 645, 250 S.E.2d 456 (1978); Savage v. City of Atlanta, 242 Ga. 671, 251 S.E.2d 268 (1978); Porter v. City of Atlanta, 259 Ga. 526, 384 S.E.2d 631 (1989).   OPINIONS OF THE ATTORNEY GENERAL   Ordinances creating status of domestic partnership.   - Municipal ordinances which create the status of domestic partnership are violative of constitutional and statutory provisions precluding municipal legislation relating to legal status and relationship; thus, group health insurance coverage provided pursuant to such ordinances is violative of the public policy of this state. 1993 Op. Att'y Gen. No. 93-26.    City has home rule power to amend a city's charter by ordinance  so as to remove from the charter a limitation on the millage rate which the city may use in levying ad valorem taxes. 1983 Op. Att'y Gen. No. U83-19.    City may amend a city's charter by resolution to increase the fines  and imprisonment which may be imposed by a recorders court for violations of city ordinances. 1983 Op. Att'y Gen. No. U83-20.   Adding residency requirement for election to governing authority.   - Municipality may not under the municipality's home rule powers amend the municipality's charter to impose a residency requirement for election to the municipal governing authority. 1985 Op. Att'y Gen. No. 85-45.   Date of municipal election may not be altered by municipality.   - Date of a municipal general election constitutes an integral aspect of the procedure for election for members of the municipal governing authority, and thus may not be altered by the municipality. 1975 Op. Att'y Gen. No. 75-140.    Municipality is not empowered, by virtue of former § 21-3-51, to amend its charter by ordinance with respect to the date of the municipality's municipal general election. 1977 Op. Att'y Gen. No. 77-33.   Effect of failure of prior election on acts validly conducted.   - Municipality may treat an election ordered as a result of the failure of a prior election as a continuation of that prior election, recognizing those acts validly conducted. 1976 Op. Att'y Gen. No. 76-23.    No city acting under this chapter could alter court  having jurisdiction over state offenses. 1971 Op. Att'y Gen. No. U71-30.    Garbage collection fee  would not violate this section. 1970 Op. Att'y Gen. No. U70-192.   Limit on fine or forfeiture    - O.C.G.A. § 36-35-6 expressly precludes a municipality from providing by either ordinance or charter amendment for a fine or forfeiture in excess of $1,000. 1999 Op. Att'y Gen. No. U99-11.   RESEARCH REFERENCES   Am. Jur. 2d.   - 20 Am. Jur. 2d, Courts, § 14. 56 Am. Jur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions, §§ 111 et seq., 124 et seq.   C.J.S.   - 62 C.J.S., Municipal Corporations, §§ 157, 195 et seq., 244, 245.   ALR.    - Certificates by state authorizing operation of motorbus lines over section of highway as affected by its subsequent annexation to city, 154 A.L.R. 1440.