*1 COLQUITT COUNTY al. v. CITY OF MOULTRIE et 18976. ELECTRIC COMPANY. RURAL September Rehearing Argued denied June 1955 Decided 1955. October 13, *7 Hoyt Whelchel & Whelchel, H. Whelchel, plaintiffs for in error. Moore, Gibson, Gardner, DeLoache & contra. general Justice. “The rule is that exercising courts
Head,
jurisdiction
equitable
will
enjoin
prosecutions;
not
criminal
ordinarily applicable
punish
rule
proceedings
this
is
to
to
municipal ordinances,
quasi
violations of
which are
criminal in
Mayor
their character.”
&c.
v. Saxon,
Shellman
Where are threatened under a void mu nicipal prosecutions ordinance and the effect of the would tend injure destroy property or person to of the prosecuted, so or legitimate him deprive enjoyment of his profits, equity inquire may entertain a suit to the validity into of the ordinance enjoin Carey to City its enforcement. v. Atlanta, 143 of g50 684, Ann. Cas. 1916E A. E. R. 1915D (84 456, S. L.
Ga. 192 (125 E. Ga. S. City LaGrange, v. 159 113 Upchurch 1151); of (133 345); 228 E. City Atlanta, 162 Ga. S. v. 47); Morrow of (139 559, A. L. 55 City Atlanta, Chaires v. of Grocery Co., 657 178 Ga. Douglas v. Ga. City South 230); R. of City Tea v. Atlantic & Co. 127); E. Great S. of Pacific (6 E. 2d Ga. S. Columbus, order, petitioner or determine not the had a
In whether to for its right pursuant valid contracts electric service given be involved, consideration must within the and the record parties of cause. powers charter (Ga. Membership Corporation 1937, pp. L. Electric Act 34A-103), Ann. under which Code, Supp., 34A-102, 645; §§ provides operating, chartered and is that such petitioner was furnishing of “the may engage in the corporations business receiving are persons in rural areas who energy to electric any corporation subject jurisdiction from to the electric service any municipal from Commission, or Georgia Public Service “any area not included corporation.” “Rural area” is defined as incorporated unincorporated city, or writhin boundaries of 1,500 inhabi- having population in excess village, town or census, includes both tants, according Federal to the last farm, population.” non-farm City (Ga. powers The charter of Moultrie L. 1458-1499) 1943, pp. authorize p. 1990; engage Ga. L. furnishing energy. electrical It held, in the business been has specific legislative municipal in the authority, absence corporation may operate a sys own and water works or electric general-welfare under its or under tem clause its contractual Mayor &c. v. powers. 50; Rome 28 Ga. Cabot, Heilbron *8 Mayor &c. Cuthbert, authority parties right, power, engage
The and each of the furnishing energy electrical questioned in business of is not the petitioner right The that its in case. cus- this contends to serve disputed upon jorior area is based the in the construction tomers had its customers with whom it contracts and at lines to serve dispute had been territory a time the in not included within when city. city The contends corporate pe- the limits of the that the city’s with notice of the intention to titioner extended its lines territory corporate include limits, the within its that petition- the only permanent procured er’s for customers service were after territory the was annexed city, petitioner to the and that the can operate within city. the territorial limits of the
The appearing uncontroverted facts from the record disclose petitioner that the had electric lines and distribution in a lines part Heights Subdivision, of East Moultrie adjoining city, the continuously year from the 1951. It had no distribution lines in 6, 7, 2, blocks territory of section the in involved the present dispute. undeveloped prior This was 1954. On August 17, 1954, property appeared the owner of the before mayor the city requested writing council of the in that territory city. this be taken the At that time an into ordinance passed on reading, territory was first and second to include the in city. The finally passed ordinance was on 2, November 1954. appears testimony
It from Glenn, manager of H. S. petitioner: He publication appearing had notice from a in paper city in August, 1954, proposed to annex that blocks 6, 7, 2, and 8 section on 1954, or about November he 3, by manager was advised the city that had been litigation At by peti- annexed. the time instituted was furnishing permanent was not tioner, it service to customer 6, 7, in and 8 blocks of the subdivision. The section pay petitioner in full offered to for its lines this be- area offer petitioner’s filed, fore the was suit was this refused. petitioner some introduced, upon, The nine relies contracts applications applications Five or its service. of these were signed by Nijem, being 10, Fred first dated November two applications signed by Nijem appear 1954. been The have approved agents subsequently other petitioner. The applications appear approved by four do not to have been ‘ agents. petitioner’s requisite valid be The first of a contract is there shall parties to contract. Code 20-107. Electric Mem- able § (Ga. Ann. bership Corporation pp. 645; L. Code, Act provides 34A-102, 34A-103), corporations that such Supp., §§ incorporated city an operate can not within the boundaries of 1,500 having population in inhabitants. Whether cal- excess *9 852 by 1950, City of of
culatecl census 1930 or of Moultrie time 1,500 prior had in excess of inhabitants to and at the written applications petitioner made to for were electric service. The imposed by Corporation Act, limitation Membership Electric corporations may act electric operate that created under that lines receiving municipal corporation a in rural service from areas not corporation regulated by Commission, Public or a Service application time limitation determined at the for is a to be service is made. petitioner City of
The attacks an ordinance of the Moul passed January 18, 1955, making any unlawful trie it on wires, maintain or person, firm, corporation poles, or electric city mayor apparatus within without the consent and alleged council. It that “is unconstitutional and is this ordinance discriminatory and being against petitioner,” is “arbi void as pars. II trary I, art. I, unreasonable” violation of sec. Georgia Fifth III of the the State of and the Constitution of Fourteenth Amendments to the Constitution of the United States. allegations attacking wholly are insufficient
The
the ordinance
constitutionality.
question
to make
as
its
assertion
provision
law or an ordinance violates
stated
Con
unreasonable,
being discriminatory, arbitrary,
as
stitution
setting'
such ordinance
discrimi
without
out how or wherein
is
arbitrary, and
is too indefinite to invoke
natory,
unreasonable,
any ruling
constitutionality
or
upon the
of such law ordinance.
(38 E.
Mayor
Griffin,
190,
409);
Hood v.
&c.
113 Ga.
191
S.
(155
Helen,
256,
(2c)
v.
E. 202);
Curtis
Town
171 Ga.
257
S.
(159
Montgomery
v. State,
235);
Jordan
Since the nor evidence introduced the petitioner upon validity makes attack the of the action of city in annexing the territory question the in under the act of (Ga. 1946 L. 1946, pp. 130, 131), petitioner could legally the not extend corporate (under lines in the city its electric limits of the Membership Corporation the Electric 1937, 1937, Act of Ga. L. pp. 644-659; Supp., Ann. Code, Chapter and would 34A), be not injunctive entitled to relief. This would be true even should prohibiting the ordinance the city’s use of the streets be de- clared void.
The contention is made for the first time in the brief of City counsel promptly that the Moultrie did comply not with requirements (Ga. 131) of the act of 1946 L. 1946, pp. 130, by giving Secretary notice of State of its action in extend Questions ing upon its limits. trial, made presented for the first time in the brief counsel in this present court, nothing Rogers for review. v. Taintor, E. 2d S. relief equitable of in- entitled to petitioner was not allowing petitioner order in its in the court erred
junction, City of Moultrie. operate in within to continue except Wyatt, P. concur, All Justices Judgment reversed. Candler, who dissent. J., J., dissenting. agree Wyatt, Presiding Justice, can not with I in majority this case. The trial was opinion court Colquitt County find from the evidence that Rural authorized to Company years for a number been serving Electric had elec Heights subdivision, which tricity to East Moultrie was outside in Moultrie; limits of section blocks recently part subdivision; that the said were a of this electric company placed poles and 8 6, 7, and lines blocks and were serving electricity contractors and owners of with constructing homes; purpose of that contracts had been made purpose furnishing blocks for with certain in said owners being that, electricity constructed; new homes after all *11 City by done, had been the of had as ordinance, this Moultrie by law, city its as to take the provided extended limits so into 6, 7, blocks and 8 of said city of Moultrie said subdivision. limits employees of City of Moultrie then arrested the the elec The wiring stringing company engaged in the and to houses lines tric they the and advised them to effect that would be the houses upon placed jail every they time entered in arrested question purpose providing electricity. in for the of presented controlling question is, when a rural elec- here The clearly territory is rural at the company time, that enters a tric territory city, taken the limits of is into a and thereafter electric rights company and the rural are of the what territory customers in the involved? providing electricity to to as specifically ques- with deals this Neither Federal State law nor equity of duty of a court to fill It therefore becomes tion. justice equity by the law and do to the vacuum created in parties concerned. all Congress States,
The United Rural by Electrifica- (7 902) attempted C. 1936 U. S. A. to make tion Act § in electricity people rural could not available to areas who other- provided co-operative, non-profit served. It wise be was that membership organized any corporations electric under the laws of money territory United States could borrow from State or purpose the construction Government for the States the United systems furnishing self-liquidating electric cur- operation in error here was areas, in rural the defendant persons rent to required was to find system. administrator, however, The such a security for loan was certify judgment in his that repaid within reasonably and that loans would be adequate, such when these loans agreed. that, It be noted here the time must private membership corporations become fully repaid, are these every corporations in of the word. sense County Membership Corpora- Electric Cobb Rural case of E. not Lights, 80), tion Board Ga. 535 S. 2d does presented. In that rural elec- question here case the answer City of company sought enjoin the Marietta from furnish- tric to anyone territory question, thereby ing in the in electric service to giving company.a monopoly the rural far as electric so case, In territory concerned. the instant particular was enj Moul- simply City to oin the company rural electric seeks it carrying from out the contracts preventing from it trie judge -The in the instant case may with customers. trial have its right City' of judgment expressly preserved the in his involved, leaving territory thus Moultrie seek in the customers City of Moultrie territory open territory as a in which the compete for customers. company the rural could electric holding We see what would be the look to result other by simply that, It this court. would mean when the rural electric profitable company enough entered has to attract private companies, developed cities or and has the area with non-profit money furnished Federal Government these companies point profitable, that it their has become business *12 gradually repay- and could be taken from them all chance of ever gone. ing Federal would be does the Government This result equity sound the writer. It would mean the like to also that Congress creating United in the Rural States Electrifica- Authority planted germ legislation the in tion the that would in ultimate Even these mod- fast-moving, mean destruction. its Congress the ern I do not believe it was intention the times money in play taxpayers’ this fast loose manner. to with the clearly rural territory The here involved was when entered company, city, taken into the by the rural electric when into knowledge rural electric city did so with full that the com- the territory. me the operating in the seems to that pany was It leaving parties operate court, the both to in judgment trial territory competitive basis, only a free is particular on this parties provided all equity for con- judgment that could have encourage my opinion It courts should and not cerned. is that competition. prevent appears above, been said it from
In addition what has to (Ga. p. 644) Membership L. reading Act of the Electric a question presented. here Sec terms of the act settle that the in the act, act various terms used defines tion Area’ means 'Rural “ reads as follows: division 8 of this section any incorporated not included within the boundaries any area in town, having population unincorporated city, village, or or census, according last Federal 1,500 to the inhabitants, excess of population.” will both farm and non-farm It includes Assembly defining “Rural area” in be noted that General according the census 1930. population it to the tied down to itself, true, terms being very under the the act terri This that term is defined question a “rural area” as tory here in is now General supra. could have been done act, in This prevent co-operative, to non Assembly no other reason than being they companies pushed out of from profit electric in this case. developed, just sought to be done had as is Justice, concurs in this say Candíer, I am authorized that to dissent. Bryant.
19019. Graham v. exception being refusing grant 1. Justice. an order an Mobley, interlocutory injunction, there no merit is motion to on dismiss ground exceptions judgment dissolving no were taken to the restraining order. proper construction, conveyed 2. Under the deed here involved the land life, gave peti- to the defendant for the remainder interest to the (2) Spillers, tioner. Mitchell 2d enjoyment “The tenant for life 3. shall be entitled full use and ordinary prudent if in he of a such use exercises the care preservation protection, tending no man for its and commits acts