Mayor of Savannah v. Weed , 96 Ga. 670 ( 1895 )

Atkinson, Justice.

The official report states fully the facts upon which the questions of law involved in this case depend.

1. By an act of the General Assembly, approved October 1st, 1887 (see Acts 1887, p. 537), the Mayor and Aldermen of the City of Savannah were authorized “to adopt at any time an ordinance requiring the grading, paving, macadamizing or otherwise iriiproving for travel or drainage any of the streets or lanes of said city, and to assess two thirds of the cost of such paving, grading, macadamizing and otherwise improving, on the real estate abutting on each side of the street or lane improved”; and further “to grade, pave, macadamize or otherwise improve any portion of the width of any street in the said city, and to assess two thirds of the cost of such paving, grading, macadamizing and otherwise improving, on the real estate abutting on each side of the street or lane improved.” The power conferred by this act is legally exercised, whether separate ordinances be passed for each street intended to be improved, or whether the improvement of several streets be provided for in one ordinance. The passage of the ordinance is simply the evidence that, according to the discretion vested in the mayor and aldermen, the improvement of the street or streets covered thereby is necessary to the welfare of the city, and we know of no reason why this declaration may not as well be made by a single ordinance to cover a number of streets, the improvement of which in the judgment of the city council is necessary, as it could be made to cover only a single street. The power to pass au ordinance for the improvement of any of the streets of the city, includes the power to improve any number of the streets. We think, therefore, that the objection to the ordinance, upon the ground that it contemplated the improvement of more than a single .street and was consequently illegal and contrary to the chai’ter power, is without merit.

2. The power to assess against abutting lot owners a proportionate share of the cost of a proposed improvement is expressed by the act in question as. follows: “and to, assess two thirds of the cost of such paving, grading, macadamizing and otherwise improving, on the real estate abutting on each side of the street or lane improved.” It will be seen by reference to this language, that the legislature contemplated a ratable apportionment of the cost of such improvement among the respective lot owners of the particular street improved. We think this is the plain meaning of the words of the statute. If it were necessary to assign any other reason for this conclusion, we think that this construction of the statute is eminently a just and equitable one; for if this rule did not prevail, and the city authorities should conclude to improve streets in different parts of the city, varying in width, and distribute the cost of the improvement among the abutting lot owners upon the frontage alone, without reference to the width of each particular street, it can easily be conceived that a case might arise in which, under the operation of such a rule, a lot owner whose lot fronted a thirty foot street would be required to pay as much as the owner of a lot with the same frontage on a street one hundred feet in width. A purpose to impose upou property-owners a burden so manifestly unjust and inequitable will not, in the absence of a direct legislative expression to that effect, be imputed to the General Assembly. The whole scheme of the act contemplates a ratable apportionment of the cost of improvement according to the width of the particular street improved, each street, for the purposes of the assessment, being a separate and distinct improvement. If a particular street which is being improved should chance to vary in width, the mayor and aldermen would be authorized to apportion the entire cost of that particular improvement among the various abutting lot owner’s according to their frontage on the street, and without reference to the width of that particular portion of the street which lay immediately in front of their property.

3. It appears in this ease, that the Mayor and Aider-men of the City of Savannah, having concluded to enter upon a scheme of street improvement, passed an ordinance providing for the paving of Bull street from the south side of Harris street, along Bull street around the intervening public squares and along the intervening lateral streets which it was necessary to improve in the execution of this scheme of improvement; the improvement to extend out along Bull street, and those portions of the intervening lateral streets fronting the several public squares, as far as Gaston street. The single ordinance covered all of Bull street between the designated points, and such portions of the lateral streets as formed apart of the continuous passage way around these several squares. In making an assessment for this improvement, that portion of the cost thereof which -was apportioned amongst the several lot owners was distributed equally according to the front foot rule against each of them, without reference to the width of the several streets included in the scheme of the improvement. Hnder the operation of this system of apportionment, it occurs that the property of the defendant in error fronted upon that portion of Harris street leading into Bull which was encessary to be improved in the execution of this scheme for paving. Harris street immediately in front of his property was only thirty-three feet wide. The paving along Bull street proper was forty-five feet in width. So that this defendant in error was required to pay the same amount, according to his frontage, as a lot owner upon Bull street, where the paving was much broader, and consequently much more expensive. The effect of this assessment was not to distribute this cost equally and ratably among the lot owners, but was a discrimination in favor of those lot owners abutting on broad streets against those whose property abutted on narrow streets, with no corresponding advantage to the latter. As we have seen heretofore, the power conferred! upon the municipal corporation was to assess against the lot owner his ratable proportion according to the width of the particular street upon which his property abutted. The particular street, a portion of which was improved in this scheme of paving, upon which his property abutted, was a narrow street, and he was entitled to have the assessment for the cost of the improvement of that street apportioned according to his frontage thereon. It was insisted by counsel for the plaintiff in error, that these lateral streets were really and in fact parts of Bull street, and therefore subject to assessment as a Bull street improvement proper. We do not feel at liberty to take this view of this matter, for the reason that we do not think the facts appearing in the record justify such an assumption. Harris street, as a distinct highway, was as much recognized by the ordinance authorizing the improvement, as was Bull street itself. A reference to the plat which appears in the record, together with the agreed statement of facts likewise incorporated therein, will show that each of these streets is a separate public highway, though they lead the one into the other, so as, when paved, to form a continuous improved highway ; yet they were none the less separate streets, and the charter provision is, not that the cost of the improvement shall be assessed according to the width of the streets improved, but according to the width of the street improved. The employment of the lattei’, instead of the former term, to our minds excludes the idea of an apportionment of the cost according to a general average of the Avidth of the several streets and an assessment accordingly. We conclude, therefore, that the trial judge did not err in sustaining the illegality, and dismissing the levy of the execution.

Let the judgment of the court below be Affirmed.