concurring specially.
Appellee argues that even if estoppel had been properly pleaded, it is not a defense because OCGA §§ 46-3-11 and 46-3-12 prohibit it as an electric supplier from applying a rate “which unreasonably discriminates against or in favor of” users such as appellant. This, it argues, precludes the defense of estoppel from being asserted by a consumer who was charged the wrong amount and against whom an action is brought to recover the uncollected amount. It relies on such foreign authority as City of Wilson v. Carolina Builders, 94 N.C. App. 117 (379 SE2d 712) (1989); Chesapeake &c. Tel. Co. v. Bles, 218 Va. 1010 (243 SE2d 473) (1978); and Memphis Light, Gas &c. Div. v. Auburndale School System, 705 SW2d 652 (Tenn. 1986).
In City of East Point v. Upchurch Packing Co., 58 Ga. App. 829 (200 SE 210) (1938), a distinction was made between a governmental function, which would not be subject to the defense of estoppel, and a private or proprietary function, with respect to which such a defense was maintainable. The court considered it “well-settled” that the provision of electric service is a non-governmental function. Id. at 830. In the more recent case of City of Warner Robins v. Rushing, 259 Ga. 348 (381 SE2d 38) (1989), the Supreme Court distinguished the case of City of East Point as being one in which the governing entity was estopped by the official’s unauthorized method of exercising power; it would not be estopped if the official had no authority to take the action in the first place. Here, then, estoppel would be available as a legally assertable defense.