City of Waycross v. Cowart , 164 Ga. 721 ( 1927 )

Atkinson, J.

1. The act approved August 22, 1905 (Acts 1905, p. 1220), amending the charter of the City of Waycross by conferring authority upon the mayor and council in their discretion to grade, pave, macadamize, and otherwise improve for travel and drainage the streets and public lanes and alleys of the city, and. to assess the cost of the improvement on the real estate abutting on the street, and to enforce collection of the amount .of the assessments by execution against the real estate and the owner thereof, provides also “that the defendants shall have the right to file an affidavit denying that the whole or any part of the amount for which said execution issued is due, and stating what amount he admits to be due, which amount so admitted to be due, with all costs, shall be paid and collected before the affidavit is received, and the affidavit shall be received for the balance, and such affidavit so received shall be returned to the superior court of Ware County and there tried and the issue determined as in cases of illegality, subject to all the pains and penalties provided in cases of illegality for delay.”

Held, that the provision of the statute affording a defendant a remedy to resist collection of assessments against abutting property for paving a street, as stated above, affords the property-owner opportunity to be heard as to the legality of the assessment and the amount thereof; and consequently a paving assessment made by the city is not repugnant to the State or Federal constitution on the ground that it deprives the owner of the property without due process of law. Sanders v. Gainesville, 141 Ga. 441 (2) (81 S. E. 215) ; Horkan v. Moultrie, 154 Ga. 444 (2) (114 S. E. 888) ; Faver v. Washington, 159 Ga. 568 (2) (126 S. E. 464).

2. Prior to the bond-commission act for Ware County, approved August 6, 1925 (Acts 1925, p. 1550), the charter of the City of Waycross as several times amended authorized the municipal authorities to establish and change the grade of any streets, avenues, lanes, and other public ' places in the City of Waycross, and to improve the same by curbing, paving, macadamizing, etc., and, relatively to streets not occupied by street-railroads or other railroads, to assess two thirds of the costs of the improvement against abutting lots and their owners, and to pay the other third from any funds of the city. City of Waycross v. Tomberlin, 146 Ga. 504 (91 S. E. 560) ; Acts 1925, p. 1557. In section 4 of the bond-commission act it was provided that if any of the highways to be constructed or improved under the act “shall be within the corporate limits of the City of Waycross, Ware County, Georgia, . . said Bond Commission, may, in its discretion, appropriate and pay over to the municipal authorities of said City of Waycross the sum of $60,000.00, or such part thereof as may in their discretion seem proper, for the construction and pennanent improvement, with brick, asphalt, concrete, or similar material, of such roads, highways, or streets, forming a part of the county or State system of highways, upon said municipal authorities agreeing by proper resolution or ordinance to raise not less than a similar sum or sums for the construction or permanent improvement with brick, asphalt, concrete, or similar material of such roads, highways, or streets, from any fund or funds said municipality may have available, or be assessed against abutting or adjoining property and the owners thereof.” After the passage of the act last above mentioned, a general law was enacted which was approved August 22, 1925 (Acts 1925, p. 152), authorizing counties “to co-operate . . with any municipality within such county in the construction, repair, and improvement of any roads, streets, and street pavement on any streets or roads within such municipality which form part of a county or State system of highways.” The act provided that in any case where the streets of a municipality are improved or paved under the provisions of the act, the municipality may exercise any power provided in its charter or ordinances or in the general laws of the State for the assessment of the costs of any part of the improvement against abutting or adjoining property and the owners thereof; and that where by charter provisions, ordinances, or the general law of the State, the municipality is not authorized to assess the entire cost of paving or improvement against adjoining and abutting lands and the owners thereof, and it is provided that a portion of the expense shall be borne by the municipality, the proportion of the expensé agreed to be paid by the county acting with the municipality under the terms of this act may be credited by the municipality to its part of the expense under the terms of its charter, ordinances, or the general law, and assessments against abutting and adjoining property and the owners thereof for the remainder of the whole costs of such pavement or other improvement shall be legal and binding; provided, that no greater proportion of the entire cost than is provided by charter, ordinances, or the general law of the State is assessed against such abutting or adjoining property and the owners thereof. Held:

(a) The city had charter authority to cause streets that were parts of the system of highways of the county and State to be paved, and to assess a portion of the cost of the improvement against abutting property and the owners thereof.

(Z>) When the county Bond Commission appropriates money to the City of Waycross for the pavement of particular streets within the city as parts of the system of highways of the State and county under the provisions of the said bond-commission act, and the city under its charter powers causes the streets to be paved on the basis of assuming one third of the cost of the improvement and assessing the remaining two thirds against abutting lots and their owners, the city may apply the whole of the amount appropriated by the county to its pro rata of the cost of the improvement.

3. If the assessments were illegal merely on account of the failure of the •municipal authorities to strictly comply with the charter in regard to the manner of passing ordinances and failure to make contracts as provided by law, and, in instances where contracts were made that provided for a parkway to be left in the middle of the street, departing from the contract so as to cause the paving of the street for the entire width, the plaintiffs could not stand by and see the work of paving completed without objecting thereto, and acquire the benefits thereof, and then come into equity without doing or offering to do equity, which in the circumstances of the case would require them to pay or offer to pay the value of the work. Mayor &c. of Macon v. Huff, 60 Ga. 221 (3); Montgomery v. Atlanta, 162 Ga. 534 (4) (134 S. E. 152, 47 A. L. R. 250).

(a) There was no allegation’that the improvement was defective, or that it was not beneficial to the plaintiffs, or that the cost of the improvement was excessive.

Nos. 5694, 5696. September 9, 1927. Reheabing denied September 22, 1927.

(b) The ease on its facts differs from Sanders v. Gainesville, supra, and Hall v. Macon, 147 Ga. 704 (95 S. E. 248), where no ruling was made with reference to the principle that a party complaining in equity must do equity before he will be entitled tó equitable relief.

4. Under application of the foregoing principles the petition failed to allege a cause of action for injunctive relief as against any part of the assessment, and the court erred in refusing to sustain the demurrers.

5. The error in refusing to sustain the general demurrers rendered all further proceedings nugatory.

Judgment reversed on the main hill of exceptions. Cross-hill of exceptions dismissed.

All the Justices concur, except Gilbert and Hines, JJ., who dissent. Jerome Crawley, Wilson, Bennelt & Pedrick, and Spalding, MacDougald & Sibley, for City of Waycross. 1 A. B. Spence and D. M. Parker, contra.

Constitutional Law, 12 C. J. p. 1263, n. 9.

Equity, 21 C. J. p. 182, n. 99.

Municipal Corporations, 28 Oye. p. 946, n. 74; p. 954, n. 78; p. 1123,' n. 29; p. 1156, n. 70 New; p. 1173, n. 6; p. 1174, n. 12; p. 1188, n. 49.