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CITY OF ATLANTA v. MARKWELL & HARTZ, INC., et al.
40298.
Declaratory judgment. DeKalb Superior Court. Before Judge Dean.
FELTON, Chief Judge.
Ga. L. 1927, pp. 779, 785, II, which gives the City of Atlanta authority to "operate, control and use" lands located outside the city limits in which it has any interest or ownership for any legitimate municipal purpose in the same manner as lands and interests within the city limits, and which grants the city "police jurisdiction" over said lands, did not authorize the city to collect a fee for a building permit for construction of a sewage disposal plant on such an area located in DeKalb County, since Ga. L. 1937, p. 583, as amended by Ga. L. 1939, p. 248, granted DeKalb County jurisdiction to collect such fees within the county "outside the incorporated limits of any municipality."
Markwell & Hartz, a corporation, filed an action for declaratory judgment in the Superior Court of DeKalb County in which it alleged, substantially, that it had been awarded a contract by the City of Atlanta for construction of a sewage disposal plant on property owned by the City of Atlanta located in DeKalb County outside the city's corporate limits; that the consideration for the construction was $2,311,898; that in order to begin work on said construction, it was required by the city to pay $1,000 for a building permit, which it paid; that subsequently thereto the DeKalb County Building Inspection Department notified the petitioner that it must pay $2,800 to the county for a building permit; that upon the petitioner's refusal to pay the county said sum, it was summoned to appear before the Recorder's Court of DeKalb County to answer to a charge of violating Section 18 of DeKalb County Minimum Construction Standards, which provided for the payment of specified fees into the county treasury for building permits; that the City of Atlanta had already collected a building permit fee from the petitioner under its alleged authority contained in City of Atlanta 1953 Code, Part I, paragraphs 26.1 and 26.7, authorized by Ga. L. 1927, pp. 779, 785; that DeKalb County bases its claim of right to collect the fee upon Ga. L. 1937, p. 583, as amended by Ga. L. 1939, p. 248, which grants the right to collect such fees in all areas of the county outside the corporate limits of any municipality. The petition seeks an adjudication of the issue of which governmental body, DeKalb County or the City of Atlanta, is entitled to the collection of the building permit fee. The budge of the recorder's court continued the case indefinitely pending an adjudication of the rights of the parties by the Superior Court of DeKalb County. It being stipulated that there were no material issues of fact to be decided, the case was tried before the court without a jury, with the additional stipulation that the petitioner had first applied for a building permit from DeKalb County and given its check therefor, but thereafter stopped payment on the check, filed an application for a building permit with the City of Atlanta, and paid the fee therefor. The triM court rendered a judgment holding that the power to require a building permit and collect the fee therefor rests with DeKalb County and not the City of Atlanta, to which judgment the City of Atlanta excepts.
Ga. L. 1937, pp. 583, 584, as amended by Ga. L. 1939, pp. 248, 249, 1, provides as follows: "Be it enacted by the General Assembly of the State of Georgia and it is hereby enacted by the authority of same, That the commissioners of roads and revenues of other county authorities having charge of the roads and revenues of all counties in this State having situated either in whole or in part a. city having a population of 200,000 inhabitants or more by the U. S. census of 1930 or any future U. S. census are hereby authorized and empowered to make, adopt, alter, amend, change, repeal and prescribe building codes, rules and regulations concerning, affecting or relating to the construction, erection, equipment, alteration, repair, changing or removal of buildings, houses and any structure whatsoever in the several counties of the State outside of the incorporated limits of any municipality, including codes, rules and regulations relating to plumbing, electrical work and all matters included or embraced in the erection, construction, equipment, alteration, repair, changing or removal of buildings, houses or any structure of any kind." (Emphasis supplied.) This Act was implemented in DeKalb County by the adoption of The DeKalb County Minimum Standards, 18 of which provides as follows: " Section 18. Permits and Fees. No new construction or alterations or repairs shall be begun, the cost of which exceeds $300.00, without first obtaining a permit from the building inspector and the building inspection department of DeKalb County, and there is hereby provided a fee for such permit which shall be $1.50 per thousand for the first $1,000,000. cost of construction and $1.00 per thousand for all over $1,000,000, based upon contract price or cost per square foot as estimated by the DeKalb County Inspection Department; the minimum fee shall be $1.50; and such fees shall be paid to the building inspector and the Building Inspection Department before any permit shall be issued, and such fee shall be remitted to the County Treasury."
Ga. L. 1927, pp. 779, 785, 11 (incorporated in City of Atlanta 1953 Code, Part I, 26.1), upon which the City of Atlanta relies as legislative authority for its collection of fees for building permits in situations such as this, provides as follows: "Sec. 11. The Mayor and General Council of said city are hereby empowered and given full authority to acquire, own or lease lands or any interest in same, either within or without the limits of the city, for any legitimate municipal purpose, and when said lands are so acquired said city is given authority to operate, control and use same for any municipal purpose and make appropriations for the upkeep and operation of same for the purposes named, in the same manner as lands and interests in same are operated and maintained within the city limits, and shall have police jurisdiction over said lands." (Emphasis supplied.) Pursuant to the above Act, City of Atlanta 1953 Code, Part I, 26.7 was enacted, providing as follows: "Sec. 26.7. Sewer lines and lands for sewer purposes. The jurisdiction of the City of Atlanta, for all police purposes, such as peace, good order, health, morals, etc., is hereby extended over the lines of all sewers, trunk and intercepting, built by the city, without the city limits, and for the full distance of said sewers and for a full width of ten feet from the center of same on either side and, furthermore, said jurisdiction, for all of the police purposes aforesaid, is hereby extended over the lands purchased by the city for the location and maintenance of sewer disposal plants, septic tanks and similar work and places for the treatment of sewerage [sic], this jurisdiction to cover the entire tract so purchased whether same is entirely covered with such works or not. Persons guilty of violating any of the ordinances of the city enacted for police purposes, as aforesaid, within the jurisdiction as above extended, shall be subject to the jurisdiction of the municipal court and punished in the same manner as for offences committed within the city limits."
Even if the 1927 Act were construed as contemplating the collection of fees by the City of Atlanta for the issuance of building permits for construction outside the city limits, Ga. L. 1937, pp. 583, 584, as amended by Ga. L. 1939, pp. 248, 249, 1, quoted hereinabove, superseded the 1927 Act by implication and pro eludes the power contended for by the City of Atlanta by prescribing the jurisdiction of the designated counties (of which DeKalb is one) for the purposes of regulation of construction to be in those areas "outside the incorporated limits of any municipality," without making any exception for the situation covered by the 1927 Act. The grant of limited authority to the city over these areas outside the city was not the equivalent of incorporating them, therefore these areas were "outside the incorporated limits of any municipality," hence subject to the jurisdiction of DeKalb County for the purposes of regulation of construction. It is thus apparent that there was no legislative intent to allow the City of Atlanta to collect such fees in unincorporated areas of DeKalb County. Accordingly, the court did not err in its judgment holding that DeKalb County was the proper governmental authority for the issuance of the permit to the petitioner and the collection of the fee therefor.
Judgment affirmed. Eberhardt and Russell, JJ., concur.
Weekes & Candler, John Wesley Weekes, George P. Dillard, Herbert O. Edwards, Robert E. Mozley, contra.
J. C. Savage, Newell Edenfield, for plaintiff in error.
DECIDED SEPTEMBER 23, 1963 -- REHEARING DENIED OCTOBER 16, 1963.
Friday May 22 22:10 EDT


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