Syllabus by the Court.
Assignments
of error, which are not urged in the brief of counsel for the
plaintiff in error, will be treated as abandoned.
Grounds
of attack upon the constitutionality of a statute, which do
not point out the provision of the Constitution alleged to
have been violated, will not be considered.
The act
approved August 19, 1911 (Acts 1911, p. 108), authorizing the
creation of drainage districts, in which lands are to be
drained, where necessary to the public welfare, and the
appointment of commissioners, and conferring authority on
them to levy assessments on the property specially benefited
to defray the cost of the improvement, does not contemplate
the levy of a tax within the meaning of the Constitution, and
is not unconstitutional for the reasons specified in the
third division of the opinion, which are predicated on the
assumption that the act authorizes the levy of a tax.
The
statute mentioned in the preceding note contemplates the
drainage of lands only in instances where it is necessary to
the public welfare. It is within the police power of the
state to enact such a law.
In so
far as the act mentioned in the preceding notes authorizes
assessments against property specially benefited by the
improvement, and after such assessments to issue bonds
payable only from the proceeds of such assessments, the act
does not offend the provision of the Constitution restricting
the power of political divisions of this state to create
debts.
The
rulings announced in the preceding notes render it
unnecessary to deal with the question of estoppel.
Error
from Superior Court, Gwinnett County; Geo. L. Bell, Judge.
Action
by A. J. Almand and another against T. A. Pate and others.
Judgment for defendants, and plaintiffs bring error.
Affirmed.
An act
of the Legislature was approved August 19, 1911, providing
for the establishment of a system of drainage, and means for
carrying into effect the requirements of the act. Acts 1911
p. 108 et seq.; Park's Code, § 439 (a) et seq. Under the
provisions of the act a drainage district was established
which embraced portions of two counties. Assessments were
made upon the several properties to be benefited by the
improvement, for the purpose of raising funds to pay the cost
of making the improvement. Some of the landowners having
failed to pay their assessments, bonds were issued and sold
under the provisions of the act. Levees and drains were
constructed for the drainage of lands within the district.
The commissioners were proceeding to enforce collection of
the assessments, when A. J. Almand and T. O. McElroy, owners
of property within the district, instituted an action against
the commissioners and the tax collector, to enjoin collection
of the assessment. Numerous grounds were relied on for the
grant of the relief, among them being that the provisions of
the act in regard to the establishment of the district and of
the execution of the bonds had not been complied with, and
that the act was unconstitutional. The defendants filed a
demurrer and an answer. In the latter it was urged that on
account of certain conduct upon the part of the plaintiffs
they were "estopped from raising any question as to the
legality of said act or as to the constitutionality of said
act, and * * * from raising any of the questions sought to be
raised in their petition in this case." On an
interlocutory hearing the case was submitted to the judge
without evidence, upon the following agreement, signed by the
respective counsel for the parties:
"It
is agreed that the constitutionality of the Drainage Act of
1911 (Acts 1911 p. 108), and the question of estoppel, under
the pleadings in this case, be submitted to and passed on by
the court at the present time, eliminating all other
questions for the present, except the constitutionality of
the act and the defense of estoppel."
The judge rendered a decision as follows:
"This
case coming on to be heard, and after hearing and
considering the same, and counsel agreeing that only two
questions be submitted to the court at this time, to wit,
the constitutionality of the act of 1911, known as the
Drainage Act, approved August 19, 1911, and the question of
estoppel: It is ordered and adjudged by the court that said
act is valid, and does not violate or contravene the
Constitution of the United States, nor the Constitution of
the state of Georgia, as contended by the plaintiff, and
that the defendants may plead estoppel. This interlocutory
injunction is denied, and the restraining order heretofore
granted dissolved."
The
plaintiffs excepted.
Section
2 of the act--Park's Code, § 439 (b)--relates to
procedure for the establishment of drainage districts. It is
required that application for the establishment of the
drainage districts be filed, and that the application
describe the specific body or district of land in the county
and adjoining counties in such way as to convey an
intelligent idea as to the location of the land, and show
that the land is subject to overflow or too wet for
cultivation, and that--
"public
benefit, or utility, or the public health, convenience, or
welfare will be promoted by draining, ditching, or leveeing
the same, or by changing or improving the natural
watercourses, and setting forth therein, as far as
practicable, the starting point, route, and terminuses, and
lateral branches, if necessary, of the proposed
improvement."
After
the filing of the application, other procedure is prescribed,
in section 2 and subsequent sections, for the establishment
of the district and for draining the lands in the district.
In section 12--Park's Code, § 439 (i)--it is provided:
"It
shall be the duty of the engineer and viewers to personally
examine the land in the district and classify it with
reference to the benefit it will receive from the
construction of the levee, ditch, or watercourse, or other
improvement. In case of drainage, the degree of wetness of
the land, its proximity to the ditch or a natural outlet,
and the fertility of the soil shall be considered in
determining the amount of benefit it will receive by the
construction of the ditch. The land benefited shall be
separated in five classes. The land receiving the highest
benefit shall be marked 'Class A,' that receiving
the next highest benefit 'Class B,' that receiving
the next highest benefit 'Class C,' that receiving
the next highest benefit 'Class D,' and that
receiving the smallest benefit 'Class E.' The
holdings of any one landowner need not * * * be all in one
class; but the number of acres in each class shall be
ascertained, though its boundary need not necessarily be
marked on the ground or shown on the map. The total number
of acres owned by one person in each class, and the total
number of acres benefited, shall be determined. The total
number of acres of each class in the entire district shall
be obtained and presented in tabulated form. The scale of
assessment upon the several classes of land returned by the
engineer and viewers shall be in the ratio of five, four,
three, two, and one; that is to say, as often as five mills
per acre is assessed against the land in 'Class A,'
four mills per acre shall be assessed against the land in
'Class B,' three mills per acre in 'Class
C,' two mills per acre in 'Class D,' and one
mill per acre in 'Class E.' This shall form the
basis of the assessment of benefits to the lands for
drainage."
This is
followed by provisions for hearings to be afforded any
property owners who may not be satisfied with the
classifications of their property, or who may claim that
their property is not benefited by the improvement. Section
31--Park's Code, § 439 (ee)--of the act provides:
"After
the classification of the land and the ratio of assessment
of the different classes to be made thereon has been
confirmed by the court, the drainage commissioners shall
prepare an assessment roll or drainage tax duplicate,
giving a description of all the land in said drainage
district, the name of the owner, so far as can be
ascertained from the public records, and the amount of
assessment, against each of the several tracts of land. In
preparing this assessment roll the board shall ascertain
the total costs of the improvement, including the damages
awarded and to be paid to the owners of land, and all
incidental expenses, and deduct therefrom any special
assessment made against any railroad or highway, and the
remainder shall be the amount to be borne and paid by the
lands benefited. This amount shall be assessed against the
several tracts of land according to the benefit received,
as shown by the classification and ratio of assessment made
by the viewers and confirmed by the board of drainage
commissioners. This drainage tax roll shall be made in
duplicate, signed by the chairman and secretary, and one
copy filed with the drainage record and the other delivered
to the sheriff or other county tax collector. There shall
be appended an order to collect the said assessments, and
the same shall have the force * * * of a judgment as in the
case of state and county taxes."
Section
32--Park's Code, § 439 (ff)--provides:
"If
the total cost of the work is less than an average of
twenty-five cents per acre on all the land in the district
the assessment made against the several tracts shall be
collected in one installment, by the same officer and in the
same manner as state and county taxes are collected, and
payable at the same time. In case the total assessment
exceeds the average of twenty-five cents per acre on all
lands in the district the said board of drainage
commissioners may give notice of three weeks by publication
in some newspaper of...
