B.F. Avery & Sons, Inc. v. City of Atlanta

• Citation: 136 S.E. 789,163 Ga. 591
• Decision Date: 13 January 1927
• Docket Number: 5490.
• Parties: B. F. AVERY & SONS, Inc., et al. v. CITY OF ATLANTA.
• Court: Supreme Court of Georgia

136 S.E. 789

163 Ga. 591

B. F. AVERY & SONS, Inc., et al. v. CITY OF ATLANTA.

No. 5490.

Supreme Court of Georgia

January 13, 1927

Rehearing Denied Feb. 18, 1927.

Syllabus by the Court.

The mayor and general council of the city of Atlanta are authorized by its charter to acquire land for widening or extending existing streets, or for opening new streets, and to assess all or any part of the cost of obtaining same upon property located in an assessment district therefor, in proportion to the benefits to the parcels of land located in said district.

The method of creating such assessment district and of levying assessments for such street improvements is provided by the Act of August 4, 1921, amending the charter of the City of Atlanta (Acts 1921, p. 665), as amended by the Act of August 7, 1924 (Acts 1924, p. 444); and by said amendment provision is made for notice and opportunity to the owners of property within such assessment district to be heard before the street committee of the city council, on the question as to the benefit or amount of benefit that will accrue to their lands and as to the amount of the assessments, if any, that should be made against their lands on account of the proposed improvement; and provision is likewise made for notice and opportunity for such owners to appear before the meeting of the council and make objections to the passage of the ordinance creating such district or the assessments contained therein.

After the mayor and general council, on the report of its street committee, finally adopts an ordinance establishing a taxing district for a proposed improvement, and providing for the improvement, and the same is not stopped by injunction or other legal process, then the owners will be concluded from further objecting thereto, either as to the form in which the work is done, or the map made, or any other technicality connected therewith; and, when such owners do not take steps to enjoin such ordinance or the assessments levied on their property until the improvement has been practically completed, and the city has expended a large sum in making the improvement, relying upon such assessments to meet the expense, they will be precluded and estopped from attacking such assessments upon the grounds (a) that the collection thereof will deprive them of their property in violation of the due process clauses of the state and federal Constitutions, and (b) that the levy of such assessments have been made in an arbitrary and unreasonable manner.

Error from Superior Court, Fulton County; E. D. Thomas, Judge.

Action by B. F. Avery & Sons, Incorporated, and others against the City of Atlanta. Judgment for defendant, and plaintiffs bring error. Affirmed.

Hewlett & Dennis, of Atlanta, for plaintiff in error.

J. L Mayson and C. S. Winn, both of Atlanta, for defendant in error.

HINES J.

After the completion of the Spring street viaduct, the city of Atlanta, under the provisions of its charter to which we shall hereafter refer, determined, in response to an insistent and general demand, to widen and extend Madison avenue through to Whitehall street, thus connecting Spring street, Madison avenue, so widened and extended, and Whitehall street, and making a thoroughfare through both north and south Atlanta. To accomplish this purpose, the city determined to create a special tax district and to levy sufficient assessments upon the realty located in said district to raise the necessary funds to meet the costs of this improvement. This taxing district embraced the property lying on Madison avenue thus extended, property lying on portions of Whitehall street, and property lying on certain cross streets. 596 feet of property fronting on Madison avenue, immediately south of Peters street, were assessed at $25 per front foot; 1,757 feet of property abutting on Madison avenue north of Peters street, were assessed at $15 per front foot; 3,670 feet of land abutting on Whitehall street, and extending from Forsyth to McDaniel street, were assessed to $5 per front foot; 2,800 feet of land fronting on Whitehall street, and extending south from McDaniel street to the right of way of the Central of Georgia Railway, were assessed at $4 per front foot; and land fronting on the cross streets within such district was assessed at $10 per front foot.

The mayor and general council of the city of Atlanta are authorized by the charter of the city to acquire land for widening and extending existing streets, and to assess all or any part of the cost of obtaining the same against property located in an assessment district established for such purposes, in proportion to the benefits to the lands located therein. Before undertaking to create a district for such purposes, the council shall appoint its committee on streets as viewers of the proposed improvement and of the land thereby affected. This committee, after viewing the land shall indicate to the chief of construction the land that will be affected by the opening of the street or portion of street. Said chief, or his assistant, shall make a map of all such land and submit the same to this committee, who shall go over the map and make such changes thereon as in their judgment shall include all land that is benefited by the proposed improvement, or omit therefrom any land which in their judgment is not benefited thereby. When this map has been perfected, it shall be reported back to council, and an ordinance adopted establishing a taxing district for the widening, opening, or extension of the proposed street, and for the assessment of all or any part of the cost thereof upon the land in said taxing district, in proportion to the benefits to the respective parcels thereof. But before any ordinance is adopted to widen, open, or extend a street, and the adoption of such taxing district, the owners of property within the proposed taxing district shall be notified by mail, at least five days before the time of defining or fixing the taxing district, and providing for the improvement. At such time the committee on streets shall have a meeting and give all parties interested, and who may desire to be heard, an opportunity to appear and oppose or favor the proposed improvement. At such meeting all parties interested who may desire to be heard, shall be given an opportunity to be heard as to the question of benefit or amount of benefit that may accrue to their land, and also as to the amount of assessment made upon their land on account of such proposed improvement. After hearing from property owners, the committee shall make a report to the mayor and general council, embodying recommendations as to whether or not said improvement shall be made. If the committee recommends that said improvement shall be made, then it shall, in its report to the mayor and general council, furnish the amounts of assessments against the respective property owners located in said district, which shall be assessed against them, and shall at the same time present to the mayor and general council an ordinance providing for said improvement, together with the assessments which shall be made against the respective property owners located in the taxing district.

No ordinance providing for such improvement, the establishment of said tax district, and levying of assessments against the respective property owners located therein, shall be passed until such property owners are notified of the introduction of such ordinance by an advertisement that shall be inserted at least one time in...