First Pentecostal Church v. City of Atlanta , 144 Ga. App. 718 ( 1978 )

144 Ga. App. 718 (1978) 242 S.E.2d 357

FIRST PENTECOSTAL CHURCH et al.
v.
CITY OF ATLANTA et al.

55013.

Court of Appeals of Georgia.

Argued January 16, 1978. Decided February 7, 1978.

J. B. Stoner, for appellants.

Harold T. Daniel, Ferrin Y. Mathews, Charles M. Lokey, for appellees.

SHULMAN, Judge.

Appellants operate a place of public worship in the City of Atlanta. The city imposed a sanitary service charge against appellants' property. Appellants sought a declaratory judgment enjoining the city from executing its fi. fa.

This appeal is from a trial court determination that the city was authorized to impose this sanitary service charge against appellants' property and that such charges are not within the exemption of Code Ann. § 92-201.

1. Appellants' constitutional challenge to the ordinance involved in this case is controlled adversely to appellants by Crestlawn Memorial Park v. City of Atlanta, 235 Ga. 194 (219 SE2d 122).

2. Appellants attempt to distinguish Crestlawn, supra, because in the case at bar there was no finding that appellants' property received the benefit of sanitary services. The "assessment is not illegal because the abutting property in its present condition, and as devoted to its present use, may not be specifically benefited by the improvement." Ga. R. &c. Co. v. Town of Decatur, 137 Ga. 537 (1) (73 SE 830). See also City of Griffin v. Crossfield, 95 Ga. App. 289, 292 (97 SE2d 618) (passing of ordinance in question concludes question of special benefit to abutting landowner). See generally 70 AmJur2d 874, Special or Local Assessments, § 37.

3. Appellants' argument that the city failed to show that any sanitary services were performed is unavailing. "The burden of alleging and proving that a tax is unreasonable and confiscatory is on the complaining party." Nat. Linen Service Corp. v. Mayor &c. of Milledgeville, 51 Ga. App. 167 (4) (179 SE 837). Code Ann. § 38-103.

4. In a supplemental brief, appellants assert that the city ordinance authorizing the collection of sanitary charges involved in this case is constitutionally defective because of alleged failure to satisfy due process notice and hearing requirements. Unfortunately for appellants, this point was not raised in the court below.

"[T]his court will never pass upon constitutional questions unless it clearly appears in the record that the point was directly and properly made in the court below and distinctly passed upon by the trial judge." City of Atlanta v. Columbia Pictures Corp., 218 Ga. 714, 719 (130 SE2d 490).

Judgment affirmed. Bell, C. J., and Birdsong, J., concur.