2021 Georgia Code
Title 46 - Public Utilities and Public Transportation
Chapter 3 - Electrical Service
Article 4 - Electric Membership Corporations and Foreign Electric Cooperatives
Part 2 - Corporate Purposes and Powers
§ 46-3-201. Existence of Electric Membership Corporations Under Articles of Incorporation; Duration of Corporations; Powers of Corporations Generally

1. Subject to any limitations provided in this article, or in any other law, and consistent with the purposes set forth in this article, each electric membership corporation:
   1. Shall exist under articles of incorporation;
   2. Shall have perpetual duration unless a limited period of duration is stated in its articles of incorporation; provided, however, that each electric membership corporation existing or continuing to operate as an electric membership corporation after the expiration of the period of duration stated in its articles of incorporation or any renewal thereof, on July 1, 1981, shall have perpetual duration unless its articles of incorporation are amended under this article to provide for a limited period of duration. The existence of any such electric membership corporation whose articles of incorporation were expired on July 1, 1981, shall be deemed to have continued without interruption from the date of such expiration;
   3. Shall have power:
      1. To cease its corporate activities and surrender its corporate franchise;
      2. To renew or revive its corporate existence in case a limited period of duration is fixed in its articles of incorporation; and
      3. To sue and be sued and to complain and defend in all courts and to participate in any judicial, administrative, arbitrative, or other action or proceeding.
2. Subject to any limitations provided in this article or in any other law, and consistent with the purposes set forth in this article, each electric membership corporation shall have power:
   1. To conduct its business, carry on its operations, have offices, and exercise its powers granted by this article at any location within or outside of this state;
   2. To make and alter bylaws, not inconsistent with its articles of incorporation or with the laws of this state, for the administration and regulation of the affairs of the electric membership corporation;
   3. To elect, appoint, or hire officers, employees, and other agents of the electric membership corporation; to define their duties; and to fix their compensation and the compensation of directors;
   4. To have a corporate seal which may be altered at pleasure and to use the seal by causing it or a facsimile thereof to be impressed or affixed or in any other manner reproduced;
   5. To purchase; take; receive by gift, will, or otherwise; lease; or otherwise acquire, own, hold, improve, use, and otherwise deal in and with real or personal property or any interest therein, wherever situated;
   6. To sell, convey, lease, exchange, transfer, and otherwise dispose of all or any part of its property and assets or any interest therein, wherever situated;
   7. To generate, manufacture, purchase, acquire, and accumulate electricity, and to transmit, distribute, sell, furnish, and dispose of such electricity;
   8. To assist its members in any manner in the efficient and economical use of energy, including, but not limited to, the installation of wiring, insulation, electrical machinery, supplies, apparatus, and equipment of any and all kinds or character;
   9. To acquire, own, hold, use, exercise, and, to the extent permitted by law, sell, mortgage, pledge, hypothecate, and in any manner dispose of franchises, rights, privileges, licenses, rights of way, and easements necessary, useful, or appropriate. Any such electric membership corporation shall have the right to acquire rights of way, easements, and all interests in realty necessary and appropriate to effectuate the purposes of such electric membership corporation by condemnation under the same procedure and terms as provided by Title 22 and any other law of this state which provides a method or procedure for the condemnation of property for public purposes by all persons or corporations having the privilege of exercising the right of eminent domain;
   10. In connection with the acquisition, construction, improvement, operation, or maintenance of its lines, to use any highway or any right of way, easement, or other similar property right owned or held by the state or any political subdivision thereof, subject to reasonable rules and regulations as to safety as may be promulgated by the State Transportation Board or subject to such reasonable terms and conditions as the governing body of such political subdivision shall determine;
   11. To make any and all contracts necessary or convenient for the exercise of the powers granted in this article, including, but not limited to, contracts with any person, federal agency, or municipality for the purchase or sale of energy; and, in connection with any such contract, to stipulate and agree to such covenants, terms, and conditions as the board of directors may deem appropriate, including, but not limited to, covenants, terms, and conditions with respect to resale rates, financial and accounting methods, services, operation and maintenance practices, and the manner of disposing of the revenues of the system operated and maintained by the electric membership corporation;
   12. To make and enter into contracts of guaranty, whether or not the electric membership corporation has a direct interest in the subject matter of the contract with respect to which it acts as guarantor or surety;
   13. To incur obligations and liabilities, borrow money, issue its notes, bonds, and other obligations, and to execute and deliver any one or more mortgages, deeds of trust, or deeds to secure debt covering, or to create by other means a security interest in, any or all of the real or personal property, assets, rights, privileges, licenses, franchises, and permits of the electric membership corporation or any interest therein, as well as the revenues therefrom, whether acquired or to be acquired, and wherever situated, for the purpose of securing the payment or performance of any one or more contracts, notes, bonds, or other obligations of the electric membership corporation;
   14. To purchase, take, receive, subscribe for, or otherwise acquire; to own, hold, vote, use, or employ; to sell, lend, or otherwise dispose of; to mortgage, pledge, create a security interest in, or otherwise encumber; and otherwise to use and deal in and with shares or other interests in or obligations of electric membership corporations or other domestic or foreign corporations, whether for profit or not, associations, partnerships, or individuals, or direct or indirect obligations of the United States or of any other government, state, territory, governmental district, or municipality or any instrumentality thereof;
   15. To form or acquire the control of other electric membership corporations, foreign electric cooperatives, and other corporations, whether domestic or foreign;
   16. To participate with any other person or persons in any corporation, partnership, transaction, arrangement, operation, organization, or venture, even if such participation involves sharing of control with or delegation of control to others;
   17. To lend money, invest and reinvest its funds, and take and hold real and personal property as security for the payment of funds so loaned or invested;
   18. To make donations, irrespective of corporate benefit, for the public welfare or for community fund, hospital, charitable, scientific, educational, civic, or similar purposes, and in time of war or other national emergency in aid of the national effort with respect thereto;
   19. At the request or direction of the United States government or any agency thereof, to transact any lawful business in time of war or national emergency or in aid of national defense;
   20. To procure for its benefit insurance on the life of any of its directors, officers, or employees or any other person whose death might cause financial loss to the electric membership corporation;
   21. To reimburse and indemnify litigation expenses of directors, officers, and employees and to purchase and maintain liability insurance for their benefit;
   22. To purchase and otherwise acquire and dispose of its own securities;
   23. To pay pensions and establish and carry out pension, savings, thrift, and other retirement, incentive, and benefit plans, trusts, and provisions for any or all of its directors, officers, and employees;
   24. To fix, regulate, and collect rates, fees, rents, or other charges for electric energy and any other facilities, supplies, equipment, or services furnished by the electric membership corporation;
   25. To assist any other electric membership corporation in the execution of its purposes and powers under this article; and
   26. To have and exercise all powers necessary or convenient to effect any or all of the purposes for which the electric membership corporation is organized.
3. It shall not be necessary to set forth in the articles of incorporation any of the powers enumerated in this Code section.
4. The articles of incorporation may limit or expand the powers conferred by subsection (b) of this Code section in any manner not inconsistent with any other provisions of this article or any other law or with the purposes of electric membership corporations.

(Ga. L. 1937, p. 644, § 4; Ga. L. 1939, p. 312, § 2; Ga. L. 1957, p. 604, §§ 1, 2; Ga. L. 1980, p. 72, § 1; Code 1933, § 34C-202, enacted by Ga. L. 1981, p. 1587, § 1; Ga. L. 1984, p. 22, § 46.)

- For survey article on local government law, see 59 Mercer L. Rev. 285 (2007). For survey article on zoning and land use law, see 59 Mercer L. Rev. 493 (2007).

JUDICIAL DECISIONS

Section applies to corporation chartered before section enacted.

- The provisions of Ga. L. 1939, p. 312, § 2 (see O.C.G.A. § 46-3-201) authorizing electrical membership corporations to exercise the power of eminent domain apply to a corporation chartered before the date of the approval of the Act enacting that section. Hagans v. Excelsior Elec. Membership Corp., 207 Ga. 53, 60 S.E.2d 162 (1950).

- Pursuant to O.C.G.A. § 46-3-201(b)(9), the electric corporation, which had to condemn property in order to effectuate its project, did not have to demonstrate to the county the necessity or the appropriateness of its proposed project; thus, the county ordinance prohibiting the electric lines for three years was unconstitutional. Rabun County v. Ga. Transmission Corp., 276 Ga. 81, 575 S.E.2d 474 (2003).

- Where an electric membership corporation has the right to condemn private property for rights of way for the construction and operation of electric transmission lines, it has a large discretion in the selection of a location for its route over such property; and unless such discretion has been abused, it will not be controlled or interfered with by the courts. Hagans v. Excelsior Elec. Membership Corp., 207 Ga. 53, 60 S.E.2d 162 (1950).

- Under Ga. L. 1939, p. 312, § 2 (see O.C.G.A. § 46-3-201) a telephone company has no cause of action for damages allegedly resulting from acts of an electric company in so placing its lines as to destroy the plaintiff's telephone service. Planters Elec. Membership Corp. v. Savannah Valley Tel. Co., 66 Ga. App. 627, 18 S.E.2d 788 (1942).

- An electric membership corporation must require a consumer to be a member of that EMC before the EMC can sell a satellite dish to the consumer. Washington Elec. Membership Corp. v. Avant, 256 Ga. 340, 348 S.E.2d 647 (1986).

- Forsyth County, Ga., Unified Development Code §§ 21-6.1, 21-6.5, were defective because they required a utility to successfully comply with the ordinance's procedures, and authorized the county to deny "any or all" portions of an application; as such, they were unconstitutional infringements on the utility's legislatively-delegated power of eminent domain. Forsyth County v. Ga. Transmission Corp., 280 Ga. 664, 632 S.E.2d 101 (2006).

Requirement that action be "brought" in a particular county is not equivalent to a requirement that action be tried there. Thompson v. Sawnee Elec. Membership Corp., 157 Ga. App. 561, 278 S.E.2d 143 (1981).

RESEARCH REFERENCES

Am. Jur. 2d.

- 18 Am. Jur. 2d, Cooperative Associations, § 30. 19 Am. Jur. 2d, Corporations, §§ 1990-1999, 2001-2008, 2037-2123. 27A Am. Jur. 2d, Energy and Power Sources, § 39.

- 29 C.J.S., Electricity, §§ 15-23.

- Furnishing electricity to public as public use or purpose for which power of eminent domain may be exercised, 44 A.L.R. 735; 58 A.L.R. 787.

Elements and measure of compensation for power lines or other wire lines over private property, 49 A.L.R. 697; 124 A.L.R. 407.

Liability of gas or electric light or power company for injury to fireman, policeman, or other public employee seeking to prevent damage to person or property of others, 61 A.L.R. 1028.

Right to cut off supply of electricity or gas because of nonpayment of service bill or charges, 112 A.L.R. 237.

Right of electrical company to discriminate against a concern which desires service for resale, 112 A.L.R. 773.

Use of streets and highways by cooperative utility, 172 A.L.R. 1020.

Correlative rights of dominant and servient owners in right of way for electric line, 6 A.L.R.2d 205.

Deposit required by public utility, 43 A.L.R.2d 1262.

Electric light or power line in street or highway as additional servitude, 58 A.L.R.2d 525.

Validity of contract between public utilities other than carriers, dividing territory and customers, 70 A.L.R.2d 1326.

Co-operative associations: rights in equity credits or patronage dividends, 50 A.L.R.3d 435.

Right of public utility to deny service at one address because of failure to pay for past service rendered at another, 73 A.L.R.3d 1292.

Applicability of zoning regulations to projects of nongovernmental public utility as affected by utility's having power of eminent domain, 87 A.L.R.3d 1265.