City of Jackson v. Kinard

Hines, J.

(After stating the foregoing facts.) In the charter of the City of Jackson is this provision: " Sec. 42. Said mayor and aldermen shall authority and power to provide by ordinance for the issuance of executions against the property of any persons who shall fail to pay when due to said city any tax, license fee, assessment, or any liability for the use of water or lights; and all such executions shall operate as tax executions.” Acts' 1908, pp. 787, 801. In pursuance of this charter power, the mayor and aldermen of said city enacted the ordinance, a full copy of which is set out in the statement of facts. Hnder this ordinance an execution was issued by the city against Kinard, for the collection of an amount which the city claimed was due by him for electric power furnished by the city to him to operate his mill. This execution was levied upon his property, and the same was advertised to be sold by the chief of police of the city under said levy. Thereupon Kinard filed his petition in which he set out the foregoing facts, and further alleged, that he did not owe the amount claimed by the city; and that the above provision of the charter of the city and said ordinance, in pursuance of which said execution is being enforced, are unconstitutional and void, for which reasons he prayed to have the enforcement of said process enjoined. The court below enjoined its further progress on this ground; and the city brought the case to this court to review and. reverse said judgment.

It is doubtful whether, under the above section, the city can by proper ordinance provide for issuing an execution to recover an amount due it for electric powér furnished a customer. That section of the city charter only authorizes the mayor and aldermen "to provide by ordinance for the issuance of executions against the property of any persons who shall fail to pay when due to said city any tax, license fee, assessment, or any liability for the use of water or lights.” Under the rule of strict construction, applicable to summary and harsh remedies, it would be stretching this language to make it embrace electric power; but this question is not made, and is not decided.

This section of the charter does not violate the due-process clauses of the State and Federal constitutions. It contains a grant of power, which need not be accompanied with provision for due process; but the legislature could leave to the mayor and aldermen of the city the enactment of an ordinance upon these matters which would afford due process. Bearden v. Daves, 139 Ga. 635 (77 S. E. 871); Wadley So. Ry. Co. v. State, 137 Ga. 497 (73 S. E. 741); City of Sandersville v. Bell, 146 Ga. 737 (92 S. E. 218). It is sufficient if the municipal ordinance, passed in the exercise of the power so granted, provides for due process. Sandersville v. Bell, supra. But the ordinance of the city, under which this execution was issued against Kinard, does not provide for any notice to customers, and does not give to them any opportunity to be heard on whether they are liable for the amounts claimed against them for electric power furnished them by the city, and for which such executions are issued. The party against whom an execution issues is wholly without remedy to contest his .liability. He must pay whether he is liable or not, or his property will be sold. The gist and very heart and soul of due process are notice and opportunity to be heard. Arthur v. State, 146 Ga. 828 (92 S. E. 637); Mott v. Ga. State Board of Optometry, 148 Ga. 55 (95 S. E. 867).

As this ordinance does not provide for notice, and an opportunity for a hearing, to parties against 'whom executions issue to collect charges for power, it is unconstitutional and void so far as claims for power are concerned. Whether it is valid as to other classes of claims therein mentioned is not now for decision by this court. ■ Judgment affirmed.

A ll the Justices concur.