I am writing in response to your request for my unofficial opinion as to the constitutionality of House Bill 1074, which seeks to amend the charter of the City of Gainesville to require the city to charge "fair and nondiscriminatory" rates for water, sewer, and other services provided outside the city limits. For the reasons stated below, it is my unofficial opinion that such a local law may be found by the courts to be unconstitutional.

The Constitution of the State of Georgia authorizes municipalities to exercise powers and provide such services as "sewage collection and disposal systems" and the "[d]evelopment, storage, treatment, purification, and distribution of water." Ga. Const. 1983, Art. IX, Sec. II, Para. III (a)(6) and (a)(7). Unless otherwise provided by law, the municipality is limited to exercising this power within its own boundaries; except that it can contract with other local governments to provide such services outside its boundaries. Ga. Const. 1983, Art. IX, Sec. II, Para. III (b). The Constitution prohibits the General Assembly from acting on these "subject matters" except by general law. Ga. Const. 1983, Art. IX, Sec. II, Para. III (c) and (d). The purpose of this constitutional provision is to provide uniformity of municipal powers which the General Assembly "may not remove . . . in a random fashion." City of Mountain View v. Clayton County, 242 Ga. 163, 167 (1978).

House Bill 1074 seeks to amend the charter of the City of Gainesville by requiring the city to "apply fair and nondiscriminatory charges and fees" for, inter alia, waterworks

and sewerage services to customers outside its official limits. It seems clear that this legislation acts on the subject matter of the enumerated services of water distribution and sewer systems identified in the constitutional provision discussed above. See Coweta County v. City of Newnan, 253 Ga. 457 (1984) (need for contract between city and county for city to provide water services outside its boundaries discussed in light of this constitutional provision). In addition, by amending the charter of a single city, House Bill 1074 is a local, rather than general, law. See Hood v. Burson, 194 Ga. 30, 33 (1942). Therefore, as a local law acting on the services identified in the Constitution as subject only to general law, the act in question appears to be unconstitutional.

Furthermore, consistent with the foregoing analysis, the Constitution states that the General Assembly is not prohibited from "restricting . . . the exercise of the [enumerated] powers" by general law. Ga. Const. 1983, Art. IX, Sec. II, Para. III (c). House Bill 1074 appears to be restrictive in nature by adding a conditional paragraph which did not exist in the original charter of the City of Gainesville. Since the Constitution only authorizes restricting such powers by general law, the attempt to do so by local law is an additional reason that the act is likely to be considered unconstitutional.

Prepared by:

JOHN E. HENNELLY
Assistant Attorney General