Horkan v. City of Moultrie , 154 Ga. 444 ( 1922 )

Hill, J.

(After stating the foregoing facts.)

Substantially the same questions are raised in the exceptions to the ruling of the court on the demurrer as in the exceptions to the overruling of the motion for new trial, and they will therefore be considered together. From the agreed statement of facts it appears that the City of Moultrie, in May, 1920, passed an ordinance for the paving of a certain part of a certain street in that city, and made an’ assessment against the abutting-property owners, as provided by the act of 1913 (Acts 1913, p. 1062); and that subsequently the city caused the ordinance to be published in the newspaper in which sheriff’s advertisements are published in that county. The paving was laid, and an " assessment-roll ” covering the cost of the paving, and fixing the proportionate cost of the same to the city and the owners of the property abutting on the street, was made and filed. Subsequently, in October, 1920, the city passed an ordinance approving the assessment-roll and ordering the clerk to issue fi. fas. against abutting-property owners. Thereafter the city mailed to each abutting-property owner a statement of his paving account, and in default of payment issued fi. fas. in accordance with sec. 59, par. 3 of the act of 1913. This action on the part of the City of Moultrie is attacked by the plaintiff in error, upon several grounds. One ground of attack is that the ordinance of the City of Moultrie which provided for the paving of the streets of the city, and under which the fi. fa. was issued against the plaintiff in error, was void for the following reasons: (a) It did not have attached to it an itemized statement of the cost of the paving. (6) It did not provide for any notice to the abutting-property owners of the time of the paving and the cost of paving, and did not provide for any hearing of any objections to be filed or heard by any abutting-property owner to the paving, the cost of same, or the manner in which same was to be done, or the necessity or advisability of same, etc. From an inspection of the act of 1913, supra, it will appear that it does not provide for such a statement of the cost of paving, nor is there anything in the ordinance of the city requiring such a statement to be made up and furnished to the abutting-property owner in advance of the paving.

In Bacon v. Savannah, 86 Ga. 301 (12 S. E. 580), this court held: “ The statute requires no assessment to be made by ordinance, save that which fixes the proportion of cost to be paid by the city as' a municipality and by abutting owners respectively. Nor does it require preliminary estimates of amounts [italics ours], or that amounts be otherwise ascertained and fixed by the ordinance. As the ordinance places the execution of its provisions in the hands of the committee on streets and lanes, the ministerial duties of that committee would include the auditing of bills and ascertaining the actual cost of the work, also the measurement of frontage and the apportionment of two thirds of the whole cost amongst the several abutting owners according to the frontage of each. The legality and accuracy of these ministerial acts are open to question on a general affidavit of illegality to the execution.” That decision is applicable here. By reference to the act of 1913, supra (sec. 59, par. 2, p. 1063), the city is empowered to grade, pave, macadamize, or improve for travel or drainage any of .the streets, alleys, or ways of the city and to assess two thirds of the cost of such grading, paving, macadamizing, or improving, according to the frontage owned by each property owner on such streets. The language in the act of 1913 is as broad, or broader, than the language under consideration by this court when it decided the Bacon case, in construing the acts of 1885 and 1887. The legislature, therefore, has placed the question of arriving at the proper amount and the various items which make up the ’ amount necessary to pave the streets in the city authorities of Moultrie by charter; and the legality and accuracy of the acts of the city authorities may be questioned on the hearing of an issue made by an affidavit of illegality filed to the execution, as in the Bacon case. No question is raised here as to excessive charges being made in making up the various-items which entered into the paving of the streets..

The charter of the City of Moultrie, as contained in the act of 1913, supra, is attacked as not affording due process of law, as provided for under the fourteenth amendment to the constitution of the United States, and by art. 1, sec. 1, par. 3, of the constitution of Georgia (Civil Code of 1910, § 6359). Section 59, par. 3, of the charter of the City of Moultrie (Acts 1913, p. 1064) provides: “To an execution issued under the provisions of this section the defendant shall have the right to file an affidavit denying that the whole or any part of the amount for which' execution is issued is due, and the reason why same- is not due,” etc. This language in the charter is sufficiently broad and comprehensive to authorize the abutting-property owner, who may deny that the whole or any part of the amount for which the execution is issued for the improving of the streets upon which he is an abutting-property owner is due, and to have his hearing and day in court.

In Speer v. Athens, 85 Ga. 49, 59 (11 S. E. 802, 9 L. R. A. 402), the act which was being considered in that case provided that when execution is issued for the amount of the assessment he may file an affidavit denying the whole or any part thereof, which affidavit is made returnable to the superior court, and the issue thereon to be tried and determined as in cases of illegality. It was held in that case that “At such hearing he may show fraud or mistake, error or excess in the amount of the execution, want of statutory authority to support the assessment, or failure to comply with the provisions of the statute and the ordinances in pursuance thereof.”

In Sanders v. Gainesville, 141 Ga. 441 (2) (81 S. E. 215), this court held that " Where an act of the legislature, authorizes the paving of streets in a city, and the collection of a special assessment against abutting land by execution, and provides that the owners of such land may file an affidavit of illegality and may contest the whole or any part of the amount so claimed, the levy of the assessment is not void on the ground that the owner is not afforded due process of law.”' In delivering the opinion of the court in the Sanders case Mr. Justice Atkinson said: “ Provision is made for a remedy by illegality, by which a property owner is afforded a hearing as to the reasonableness or lawfulness of the assessment before he is finally required to pay the assessment. Having such a remedy, the property of abutting-land owners is not taken without due process of law. Shippen Bros. v. Elliott, 134 Ga. 699 (68 S. E. 509).” And see Lanham v. City of Rome, 136 Ga. 398 (71 S. E. 770). In so far as the publication by the mayor and aldermen, after the passage of the ordinance by them in reference to paving and curbing the streets of Moultrie, complies with the act of 1913, under which act they were passed, see Monk v. City of Moultrie, 145 Ga. 843 (2) (90 S. E. 71), as being controlling upon that point.

The decisions of this court cited above are in accord with the rulings made by the Supreme Court of the United States on similar questions. In 11 Fed. Stat. Ann. (2d ed.) the rule is thus stated: “A State statute authorizing the cost of improvement of streets and other ways to be assessed against the owners of lots, and giving a lien thereon for such assessment, subjecting the power vested in the local government to the supervision of the courts where the particular facts in each case could be examined and the controversies determined by those rules and principles which have always governed courts in dealing with questions of assessment and taxation, does not deprive the owners of such lots of property without due process of law.” And to the same effect is Walston v. Nevin, 128 U. S. 578, 581 (9 Sup. Ct. 192, 32 L. ed. 544).

In Wagner v. Leser, 239 U. S. 207 (36 Sup. Ct. 66, 60 L. ed. 230), the Supreme Court held: “Where the classification of property to be improved and the assessment are fixed by the statute itself and a specified sum fixed ratably according to area of the property, notice and hearing as to amount and extent of benefits are not required, in the absence of abuse of power, in order to render such legislative action due process of law.” Mr. Justice Day, in delivering the opinion of the.court, said: “ Taking the decisions of this court together, w;e think that it results that the legislature of a State may determine the amount to be assessed for a given improvement, and designate the lands and property benefited thereby, upon which the assessment is to be made, without first giving an opportunity to the owners of the property to be assessed to be heard upon the amount of the assessment or the extent of the benefit conferred.” And see Withnell v. Ruecking Construction Co., 249 U. S. 63, 68 (39 Sup. Ct. 200, 63 L. ed. 479), where it was held: “When an assessment for a local improvement is made in accordance with a fixed rule prescribed by legislative act, the property owner is not entitled to be heard in advance on the question of benefits.” In the case last cited the following language is used: “In support of the constitutional objection it is contended that the plaintiff in error was not allowed to be heard as to the validity and apportionment of the assessment, and was therefore denied due process of law. The charter provision for notice and hearing is inserted in the margin. But whether a property owner is entitled to be heard in defense upon the question of benefit and apportionment depends upon the authority under which the assessment is made. When the assessment is made in accordance with a fixed rule adopted by a legislative act, a property owner is’not entitled to be heard in advance on the question of the amount and extent of the assessment and the benefit conferred.” Citing French v. Barber Asphalt Pav. Co., 181 U. S. 324 (21 Sup. Ct. 625, 45 L ed. 879). See also Embree v. Kansas City etc. Road Dist., 240 U. S. 242 (36 Sup. Ct. 317, 60 L. ed. 624).

The case of Turner v. Wade, 254 U. S. 64 (41 Sup. Ct. 27, 65 L. ed. 134), cited by counsel) is distinguishable from the present case. In that case the Supreme Court held that under the facts of that case the plaintiff in error was not afforded due process of law, for the reasons therein given; but in the instant case the plaintiff in error has a right, under the charter of the City of Moultrie, toi contest the assessment, by express provision in the charter itself.

Applying the rulings made in the foregoing divisions of the opinion to the facts of this case the court did not err in his rulings upon the demurrer, nor in overruling the motion for new trial. The other grounds of the motion for new trial not specifically dealt with are without merit.

Judgment affirmed.

All the Justices concur. Atlcinson, J., concurs in the result.