Georgia Railway & Electric Co. v. Town of Decatur , 29 Ga. App. 653 ( 1923 )

Bell, J.

1. By the provisions of the act approved August 2, 1916 (Ga. L. 1916, p. 683; see also acts approved August 17, 1909, and August 16, 1915), the Town of Decatur was empowered to repave its streets whenever in its discretion the same should be “ necessary for the benefit of the public travel and the maintenance of said streets;” and, in the absence of a valid contract otherwise providing (which it seems may under some conditions be made: Atlanta Con. Street Ry. Co. v. City of Atlanta, 111 Ga. 255 (2), 36 S. E. 667; Jenkins County v. Dickey, 139 Ga. 91, 76 S. E. 856; City of Atlanta v. Akers, 145 Ga. 680, 89 S. E. 764), an owner of property which is affected thereby is not relieved from an assessment of the proper proportion of the cost thereof merely by reason of having-paid a pro rata of the cost of the original paving upon the street which is thus later repaved.

2. Accordingly, notwithstanding it appears that on September 25, 1912, a contract was made between the parties hereto providing that the plaintiff in error street-railway company should pay a certain sum to the municipality for a “ franchise, easement, or right of way,” to “ be used for the purpose of widening and grading ” the street .whose repaving is now in question, and that so “ much thereof as is unexpended for that purpose shall remain in the treasury of the Town of Decatur,” and further that such rights, privileges, and easements therein granted are upon the condition, among others, that the company should pay a sum equal to two thirds of the cost of paving such street,.whenever the same should be done, and although it is shown also that the street-railway company duly performed its obligation to pay such sum including an amount for the original paving which was done in the year following, the fact of such contract and the performance thereof by the company does not preclude its liability for a legal proportion of the subsequent expense of repaving such street, whenever the municipality, under its charter authority, should deem the same to be necessary, and should lawfully execute the same and assess the cost thereof; the provisions of the contract above referred to being construed to apply only to the terms of the purchase of the franchise and to the old paving, no stipulation therein appearing which could reasonably be referable to the matter of repaving. City of Atlanta v. Gate City Street R. Co., 80 Ga. 276 (4 S. E. 269); Burckhardt v. City of Atlanta, 103 Ga. 302 (4) (30 S. E. 32).

3. Although there is a diversity of opinion (4 Dill. Mun. Cor. (5th ed.) § 1453; 28 Cyc. 1115; 25 R. C. L. 93, 108; 18 L. R. A. (N. S.) 1263, note; but see Speer v. Athens, 85 Ga. 49, 58, 11 S. E. 802, 9 L. R. A. 402; City of Atlanta v. Presbyterian Chruch, 86 Ga. 730, 13 S. E. 252, 12 L. R. A. 852; and see Hayden v. City of Atlanta, 70 Ga. 817, 825, in which it was said by the Supreme Court: “But the power to have worked, opened, repaired, and improved the public highways, streets, and roads may be exercised by the legislature in such manner and way, and under such circumstances, as may be deemed best. There is no limitation imposed by the constitution upon this power; it rests upon the sound discretion of the legislature ”) as to whether a statute may not authorize the issuance and levy of an execution for an assessment on other property than that abutting upon or contiguous to the street improved, on the theory, among possibly others, that such a scheme may result in a contribution by one of a sum in excess of the value of his property directly affected, and amount thus to a confiscation (City of Atlanta v. Hanlein, 101 Ga. 697, 29 S. E. 14, s. c. 96 Ga. 381, 23 S. E. 408), the constitutionality or validity of the act of August 18, 1919 (Ga. L. 1919, p, 934), amending the charter of the Town of Decatur, under which the municipality contends that such a levy upon such other property is authorized, is in no wise drawn in question by the record in the instant case; and therefore this court, being called upon to pass upon the act, must construe it upon the assumption that it is valid. It is neither insisted nor suggested that the property abutting or contiguous is of a value less than or even disproportionate to the improvements made, nor that the plaintiff in error is in any way prejudiced by the fact of the levy of the fi. fa. upon its other property, as was done, instead of its proceeding directly upon the property abutting.

4. The act of 1919, supra, should be construed in the light of the principle that “ in the absence of legislative authority the main track of a railroad company is not subject to levy and sale to satisfy a lien for assessments for local improvements ” (Georgia Railroad &c. Co. v. Decatur, 137 Ga. 537 (3), 73 S. E. 830, 40 L. R. A. (N. S.) 935; Georgia Railway &c. Co. v. Atlanta, 144 Ga. 722 (4), 87 S. E. 1058); and since the provisions of the act appear to relate to assessments “ against street or other railroad'companies, and against the property thereof” (not expressly limited to property abutting), only in cases of improvement of streets along or across which the track or tracks of such railway company extends, and since also there is no express power therein given to levy upon the trades themselves (between and beside which the paving was done in the present ease), a construction of the act as applicable only to a levy and sale of the property of the railway company abutting upon or contiguous to the improvement would be the equivalent of holding it meaningless or ineffective; whereas, looking “ diligently for the intention of the General Assembly, keeping in view, at all times, the old law, the evil, and the remedy (Civil Code of 1910, § 4, subsection 9), it must be held that the power to levy for assessments is not thereby limited to property abutting upon the street improved (see, in this connection, 25 R. C. L. 174), but that the act confers the virtual equivalent of express authority to levy upon some other property within the municipality.

5. “Laws which act upon remedies alone, although retrospective, will be enforced; provided they do not impair the obligation of contracts, or disturb absolutely vested rights; and only go to confirm rights already existing, and in furtherance of the remedy, by curing defects and adding to the means of enforcing existing obligations.” Wilder v. Lumpkin, 4 Ga. 208 (6); Searcy v. Stubbs, 12 Ga. 437 (2).

0. On April 18, 1919, the mayor and council of the Town of Decatur enacted an ordinance providing for the paving which is now in question. After the improvement was finished, an ordinance was enacted, on September 5, 1919, making the assessments for the expense thereof. This was a proper and legal order of procedure. Bacon v. Mayor &c. of Savannah, 91 Ga. 500 (2) (17 S. E. 749). The act of 1919, above referred to, was enacted subsequent to the paving but prior to the ordinance by which .the assessments were made for the cost thereof. Such assessments are within the provisions of the act in relation to the enforcement of the collection of the assessments by a levy upon other property than that abutting or contiguous to the street so improved. If such ruling is to give to the act a retrospective effect, the effect is only remedial, and not in any wise unlawful or objectionable. Wilder v. Lumpkin, supra; Searoy v. Stubbs, supra; Boston v. Cummins, 16 Ga. 102 (4) (60 Am. D. 717); Sparger v. Cumpton, 54 Ga. 355; Pritchard v. Savannah Street etc. R. Co., 87 Ga. 294 (13 S. E. 493); Baker v. Smith, 91 Ga. 142 (16 S. E. 967); Bacon v. Savannah, 105 Ga. 62 (31 S. E. 127); Moore v. Ripley, 106 Ga. 556 (2) (32 S. E. 647); Allen v. Schweigert, 110 Ga. 323 (35 S. E. 315); Mills v. Geer, 111 Ga. 275 (36 S. E. 673, 52 L. R. A. 934); Ross v. Lettice, 134 Ga. 868 (68 S. E. 734, 137 Am. St. R. 281); Civil Code (1910), § 6. See also the subject “ Curative Acts ” or “ Curative Legislation,” under “ Special Assessments,” 25 R. C. L. 94; 25 Am. & Eng. Enc. Law (2d ed.) 1228; 4 Dill. Mun. Cor. (5th ed.) § 1469.

Decided February 16, 1923. Colquitt & Conyers, for plaintiff in error. Harwell, Fawmam, & Bcwrett, contra.

7. The overruling of the general demurrer to the affidavit of illegality filed by the street-railway company to the fi. fa. issued for the amount of the assessment did not adjudicate that the affidavit was good in all of its grounds, but that not all of them were bad. Johnson v. Wheelock, 63 Ga. 624 (2); Lowe v. Burke, 79 Ga. 164 (2) (3 S. E. 449); Hudson v. Hudson, 119 Ga. 637 (46 S. E. 874); Gibson v. Wilson, 130 Ga. 243 (2) (60 S. E. 565). But in the absence of a special demurrer (Dixon v. Savannah, 20 Ga. App. 511 (1), 93 S. E. 274; Mayor &c. of Savannah v. Wade, 21 Ga. App. 48, 94 S. E. 1042), the averments that “there is no authority . . in the mayor and council . . or iñ the clerk . . or in the marshal . . to sell or to have sold said pi-operty so levied upon by virtue of said execution,” and “ no assessment of any kind was ever made against any property so levied on,” were sufficient to raise an issue of fact as to the existence of ordinances for the paving and for the assessment of the cost thereof. Bacon v. Savannah, supra, s. c, 86 Ga. 301 (12 S. E. 580); Walker v. Cairo, 27 Ga. App. 323 (108 S. E. 206). After the submission of the evidence had closed, a finding upon the issue thus raised was demanded in favor of the plaintiff in fi. fa., the Town of Decatur, and, no other ground of illegality containing any merit, the verdict was properly directed accordingly. And the motion of the defendant in fi. fa. for a new trial, which was thereafter filed, was properly overruled.

Judgment affirmed on main bill of exceptions; cross-bill dismissed.

Jenkins, P. J., and Stephens, J., concur.