---
title: Ga. Const. Art. IX, Sec. II, Para. I. Home rule for counties.
collection: code
id: ga-const:art-ix-sec-ii-para-i
cite_as: Ga. Const. Art. IX, Sec. II, Para. I
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date: 2016
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---

# Ga. Const. Art. IX, Sec. II, Para. I. Home rule for counties.

A constitution provision shown as in force is in force as printed in the volume. A court decision can make a printed provision unenforceable without changing the volume, and the volume does not record that.

(a) The governing authority of each county shall have legislative power to adopt clearly reasonable ordinances, resolutions, or regulations relating to its property, affairs, and local government for which no provision has been made by general law and which is not inconsistent with this Constitution or any local law applicable thereto. Any such local law shall remain in force and effect until amended or repealed as provided in subparagraph (b). This, however, shall not restrict the authority of the General Assembly by general law to further define this power or to broaden, limit, or otherwise regulate the exercise thereof. The General Assembly shall not pass any local law to repeal, modify, or supersede any action taken by a county governing authority under this section except as authorized under subparagraph (c) hereof.

(b) Except as provided in subparagraph (c), a county may, as an incident of its home rule power, amend or repeal the local acts applicable to its governing authority by following either of the procedures hereinafter set forth:

(1) Such local acts may be amended or repealed by a resolution or ordinance duly adopted at two regular consecutive meetings of the county governing authority not less than seven nor more than 60 days apart. A notice containing a synopsis of the proposed amendment or repeal shall be published in the official county organ once a week for three weeks within a period of 60 days immediately preceding its final adoption. Such notice shall state that a copy of the proposed amendment or repeal is on file in the office of the clerk of the superior court of the county for the purpose of examination and inspection by the public. The clerk of the superior court shall furnish anyone, upon written request, a copy of the proposed amendment or repeal. No amendment or repeal hereunder shall be valid to change or repeal an amendment adopted pursuant to a referendum as provided in (2) of this subparagraph or to change or repeal a local act of the General Assembly ratified in a referendum by the electors of such county unless at least 12 months have elapsed after such referendum. No amendment hereunder shall be valid if inconsistent with any provision of this Constitution or if provision has been made therefor by general law.

(2) Amendments to or repeals of such local acts or ordinances, resolutions, or regulations adopted pursuant to subparagraph (a) hereof may be initiated by a petition filed with the judge of the probate court of the county containing, in cases of counties with a population of 5,000 or less, the signatures of at least 25 percent of the electors registered to vote in the last general election; in cases of counties with a population of more than 5,000 but not more than 50,000, at least 20 percent of the electors registered to vote in the last general election; and, in cases of a county with a population of more than 50,000, at least 10 percent of the electors registered to vote in the last general election, which petition shall specifically set forth the exact language of the proposed amendment or repeal. The judge of the probate court shall determine the validity of such petition within 60 days of its being filed with the judge of the probate court. In the event the judge of the probate court determines that such petition is valid, it shall be his duty to issue the call for an election for the purpose of submitting such amendment or repeal to the registered electors of the county for their approval or rejection. Such call shall be issued not less than ten nor more than 60 days after the date of the filing of the petition. He shall set the date of such election for a day not less than 60 nor more than 90 days after the date of such filing. The judge of the probate court shall cause a notice of the date of said election to be published in the official organ of the county once a week for three weeks immediately preceding such date. Said notice shall also contain a synopsis of the proposed amendment or repeal and shall state that a copy thereof is on file in the office of the judge of the probate court of the county for the purpose of examination and inspection by the public. The judge of the probate court shall furnish anyone, upon written request, a copy of the proposed amendment or repeal. If more than one-half of the votes cast on such question are for approval of the amendment or repeal, it shall become of full force and effect; otherwise, it shall be void and of no force and effect. The expense of such election shall be borne by the county, and it shall be the duty of the judge of the probate court to hold and conduct such election. Such election shall be held under the same laws and rules and regulations as govern special elections, except as otherwise provided herein. It shall be the duty of the judge of the probate court to canvass the returns and declare and certify the result of the election. It shall be his further duty to certify the result thereof to the Secretary of State in accordance with the provisions of subparagraph (g) of this Paragraph. A referendum on any such amendment or repeal shall not be held more often than once each year. No amendment hereunder shall be valid if inconsistent with any provision of this Constitution or if provision has been made therefor by general law.

In the event that the judge of the probate court determines that such petition was not valid, he shall cause to be published in explicit detail the reasons why such petition is not valid; provided, however, that, in any proceeding in which the validity of the petition is at issue, the tribunal considering such issue shall not be limited by the reasons assigned. Such publication shall be in the official organ of the county in the week immediately following the date on which such petition is declared to be not valid.

(c) The power granted to counties in subparagraphs (a) and (b) above shall not be construed to extend to the following matters or 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 this Constitution:

(1) Action affecting any elective county office, the salaries thereof, or the personnel thereof, except the personnel subject to the jurisdiction of the county governing authority.

(2) Action affecting the composition, form, procedure for election or appointment, compensation, and expenses and allowances in the nature of compensation of the county governing authority.

(3) Action defining any criminal offense or providing for criminal punishment.

(4) Action adopting any form of taxation beyond that authorized by law or by this Constitution.

(5) Action extending the power of regulation over any business activity regulated by the Georgia Public Service Commission beyond that authorized by local or general law or by this Constitution.

(6) Action affecting the exercise of the power of eminent domain.

(7) Action affecting any court or the personnel thereof.

(8) Action affecting any public school system.

(d) The power granted in subparagraphs (a) and (b) of this Paragraph 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.

(e) Nothing in subparagraphs (a), (b), (c), or (d) shall affect the provisions of subparagraph (f) of this Paragraph.

(f) The governing authority of each county is authorized to fix the salary, compensation, and expenses of those employed by such governing authority and to establish and maintain retirement or pension systems, insurance, workers’ compensation, and hospitalization benefits for said employees.

(g) No amendment or revision of any local act made pursuant to subparagraph (b) of this section shall become effective until a copy of such amendment or revision, a copy of the required notice of publication, and an affidavit of a duly authorized representative of the newspaper in which such notice was published to the effect that said notice has been published as provided in said subparagraph has been filed with the Secretary of State. The Secretary of State shall provide for the publication and distribution of all such amendments and revisions at least annually.

## Cross References

Advertisement of local laws enacted by General Assembly, Ga. Const. 1983, Art. III, Sec. V, Para. IX. Home rule by municipalities, Ga. Const. 1983, Art. IX, Sec. II, Para. II; Ch. 34, T. 36; and Ch. 35, T. 36. Compensation for county officers, Ga. Const. 1983, Art. IX, Sec. I, Para. III. Power of counties to enact building, electrical, and other codes, Ch. 13, T. 36. Public hearings before enacting county codes, § 36-13-8.

## Law Reviews

For article discussing the constitutional provisions authorizing municipal home rule prior to the adoption of the 1976 Constitution, see 4 Ga. St. B.J. 317 (1968). For article discussing the evolution of municipal annexation law in Georgia in light of Plantation Pipe Line Co. v. City of Bremen, 227 Ga. 1, 178 S.E.2d 868 (1970), see 5 Ga. L. Rev. 499 (1971). For article, ‘‘Home Rule: Its Impact on Georgia Local Government Law,’’ see 8 Ga. St. B.J. 277 (1972). For article discussing disadvantages of zoning for land use planning, see 10 Ga. L. Rev. 53 (1975). For article discussing limitations on municipalities ‘‘home rule’’ powers, see 12 Ga. L. Rev. 805 (1978). For article surveying recent legislative and judicial developments in zoning, planning and environmental law, see 31 Mercer L. Rev. 89 (1979). For article surveying legislative and judicial developments in Georgia local government law for 1978-79, see 31 Mercer L. Rev. 155 (1979). For survey article on local government law, see 34 Mercer L. Rev. 225 (1982). For article, ‘‘The United States Supreme Court as Home Rule Wrecker,’’ see 34 Mercer L. Rev. 363 (1982). For survey article on zoning and land use law, see 59 Mercer L. Rev. 493 (2007). For article, ‘‘Researching Georgia Law,’’ see 34 Ga. St. U.L. Rev. 741 (2015).

For note, ‘‘Regulation of Artificial Lakes and Recreational Subdivisions in Georgia,’’ recommending methods for future regulation, see 8 Ga. St. B.J. 580 (1972).

## 1976 Constitution.

Art. IX, Sec. II, Paras. I-III.

## Constitutionality.

O.C.G.A. § 36-5-22, which permits a county board of commissioners to create the office of county manager, is constitutional. Gray v. Dixon, 249 Ga. 159, 289 S.E.2d 237 (1982).

## When Section Applicable.

Provisions of this section apply only when county attempts to amend or repeal local Acts applicable to its governing authority. Local 189 Int’l Union of Police Ass’ns v. Barrett, 524 F. Supp. 760 (N.D. Ga. 1981) (see Ga. Const. 1983, Art. IX, Sec. II, Para. I).

Powers of county commissioners are strictly limited by law, and they ity of law. Mobley v. Polk County, 242 Ga. 798, 251 S.E.2d 538 (1979).

Neither the counties of this state nor their officers can do any act, make any contract, nor incur any liability not authorized by some legislative Act applicable thereto. Mobley v. Polk County, 242 Ga. 798, 251 S.E.2d 538 (1979).

County governing authority only has the powers given to it by the legislature. McCray v. Cobb County, 251 Ga. 24, 302 S.E.2d 563 (1983).

If there is reasonable doubt of existence of a particular power of a county, the doubt is to be resolved in the negative. Mobley v. Polk County, 242 Ga. 798, 251 S.E.2d 538 (1979).

Transfer of chairperson’s power to

## Can Do Nothing Except Under Authorcounty Board Constitutional.

The Constitution did not prevent the county board from passing resolutions which effectively transferred much of the power of the county chairperson to the county board. Krieger v. Walton County Bd. of Comm’rs, 269 Ga. 678, 506 S.E.2d 366 (1998).

## County Governing Authority Powers.

Any attempt by the board of commissioners to confer ‘‘executive powers’’ on the office of county manager would be an ‘‘action affecting the ... form ... of the county governing authority’’ in violation of subsection (c)(2) of this paragraph. Gray v. Dixon, 249 Ga. 159, 289 S.E.2d 237 (1982) (see Ga. Const. 1983, Art. IX, Sec. II, Para. I).

An ordinance creating the office of county manager which tracked the language of O.C.G.A. § 36-5-22 and which vested in that office certain administrative functions, and did not attempt to confer the executive powers reserved for the chairman, was consistent with the county’s home rule authority and did not violate Ga. Const. 1983, Art. IX, Sec. II, Para. I. Krieger v. Walton County Bd. of Comm’rs, 271 Ga. 791, 524 S.E.2d 461 (1999).

## County’s Method of Counting Abstentions.

A county’s method of not counting abstentions by county commissioners, and therefore not considering abstentions either affirmative or negative votes, was within the county’s authority; as a result, a citizen challenging the method of counting votes was not entitled to declaratory relief. Merry v. Williams, 281 Ga. 571, 642 S.E.2d 46 (2007).

Fee for utility use of rights of way. — County was not entitled to extract from power company a tax, franchise fee, rental fee, or other charge in return for permission to use county’s road rights of way outside of municipalities for erection, maintenance, and use of power transmission lines. DeKalb County v. Georgia Power Co., 249 Ga. 704, 292 S.E.2d 709 (1982).

County cannot prohibit electric

## Lines.

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).

Home rule ordinances enacted in compliance with this paragraph would supersede specified provisions of a local Act. Guhl v. Williams, 237 Ga. 586, 229 S.E.2d 382 (1976) (see Ga. Const. 1983, Art. IX, Sec. II, Para. I).

Cannot interfere with provisions of

## General Law.

The ‘‘home rule’’ provision of this paragraph explicitly disallows any attempt by a local governing authority to change or to interfere with operation of provisions of general law. Commissioners of Wayne County v. Smith, 240 Ga. 540, 242 S.E.2d 47 (1978) (see Ga. Const. 1983, Art. IX, Sec. II, Para. I).

The Constitution limits legislative action by the board of commissioners to matters for which no provision has

## Been Made by General Law.

Furthermore, the ‘‘home rule’’ powers of the board of commissioners do not extend to any matters which the General Assembly by general law has preempted. Commissioners of Wayne County v. Smith, 240 Ga. 540, 242 S.E.2d 47 (1978).

## Section 31-7-72.

The language of former Code 1933, § 88-1802 (see now O.C.G.A. § 31-7-72), providing for appointment of members of the boards of hospital authorities, was not subject to change by exercise of the home rule powers contained in this paragraph. Commissioners of Wayne County v. Smith, 240 Ga. 540, 242 S.E.2d 47 (1978) (see Ga. Const. 1983, Art. IX, Sec. II, Para. I).

Proof of facts needed to show county created public authority not

## Extension of County.

Where an act of a political subdivision of the state creates a public facilities authority with provisions which shows that the authority shall be separate from the county governing authority in membership, powers, and duties, and that revenue bonds of the authority shall bear a notation that they are not a debt of the county nor has the county any obligation whatever for the authority, then the authority is not an extension of the county, and the act creating the authority is not a ‘‘local Act ... applicable to the county’s governing authority ...’’ which may be amended by the county commissioners under this paragraph. Wood v. Gwinnett County, 243 Ga. 833, 257 S.E.2d 258 (1979) (see Ga. Const. 1983, Art. IX, Sec. II, Para. I).

## County Business Must Be Conducted at County Site.

Deliberation and voting on any issue must be conducted at county site and citizens of the county must be afforded an opportunity to be heard at the county site on any issue of county business. Brewster v. Houston County, 235 Ga. 68, 218 S.E.2d 748 (1975).

Contracts for distribution of public

## Records.

A contract between a county and a company to allow the company to obtain copies of certain public indices and records and make them available for a fee is not invalid under subparagraph (c)(7) of Ga. Const. 1983, Art. IX, Sec. II, Para. I because it is not an act of legislation and because it does not affect the manner in which the clerk of the county court performs the clerk’s duties. Price v. Fulton County Comm’n, 170 Ga. App. 736, 318 S.E.2d 153 (1984).

Act may require that judges of courts of limited jurisdiction must ties to be entitled to be paid for those duties. McCray v. Cobb County, 251 Ga. 24, 302 S.E.2d 563 (1983).

## Devote Minimum Time to Official du-Minority Business Enterprise Program.

Home rule charter did not authorize county to enact a 1982 minority business enterprise program where provision had been made by general law for the letting of public works contracts and the program conflicted with that general law. S.J. Groves & Sons Co. v. Fulton County, 920 F.2d 752 (11th Cir.), cert. denied, 500 U.S. 959, 111 S. Ct. 2274, 114 L. Ed. 2d 725, 501 U.S. 1252, 111 S. Ct. 2893, 115 L. Ed. 2d 1057 (1991).

## Employment of Counsel.

A county governing authority has the implicit power to employ counsel for county officers. Stephenson v. Board of Comm’rs, 261 Ga. 399, 405 S.E.2d 488 (1991).

County governing authority’s employment of counsel to represent a superior court clerk did not violate subparagraphs General Consideration (Cont’d) (c)(1) and (c)(7) of Ga. Const. 1983, Art. IX, Sec. II, Para. I. Stephenson v. Board of Comm’rs, 261 Ga. 399, 405 S.E.2d 488 (1991).

Sheriff is not county policymaker for purposes of county’s liability under 42 U.S.C. § 1983; Georgia’s Constitution created the sheriff’s office as a separate constitutionally protected entity independent from the county. Grech v. Clayton County, 335 F.3d 1326 (11th Cir. 2003).

Redistricting legislation for the

## Counties.

In Georgia, the General Assembly is the only legislative body with the power to enact redistricting legislation for the counties; therefore, where the General Assembly failed to enact reapportionment legislation for a certain county, although it was entitled to consideration as an expression of county policy, a reapportionment plan proposed by a county was not a legislatively enacted plan requiring deferential treatment and the district court was required to fashion a reapportionment plan. Bodker v. Taylor, 2002 U.S. Dist. LEXIS 27447 (N.D. Ga. June 5, 2002).

Ordinance covering payment of

## Garbage Collection Fees.

The state constitution, statutes, and case law permit a county to enact an ordinance making property owners responsible for the payment of garbage collection fees for their rental property. Board of Comm’rs v. Guthrie, 273 Ga. 1, 537 S.E.2d 329 (2000).


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