Bower v. City Of Bainbridge, (No. 6972.)

• Decision Date: 13 April 1929
• Docket Number: (No. 6972.)
• Citation: 148 S.E. 517,168 Ga. 616
• Parties: BOWER et al. v. CITY OF BAINBRIDGE.
• Court: Georgia Supreme Court

168 Ga. 616

148 S.E. 517

BOWER et al.

v.CITY OF BAINBRIDGE.

(No. 6972.)

Supreme Court of Georgia.

April 13, 1929.

=

Rehearing Denied June 13, 1929.

(Syllabus by the Court.)

Gilbert, J., dissenting.

Error from Superior Court, Decatur County; P. D. Rich, Judge pro hac.

Execution by the City of Bainbridge against property of-Byron Bower and others, in which defendants filed affidavit of illegality. Judgment for plaintiff, defendant's motion for new trial was overruled, and defendants bring error. Affirmed.

The City of Bainbridge published a notice calling upon all persons interested to show cause, if any they had, on June 27, 1921, why sidewalks on certain streets in that city, including Planter, Clay, and Calhoun streets, should not be paved. In response to this notice Judge B. B. Bower, Sr., filed his protest against the paving of said sidewalks on the streets above mentioned, upon certain grounds which were fully set out therein. The city overruled such protest; and on August 1, 1921, passed an ordinance providing for the pavement of the sidewalks on certain streets within its limits, including those above mentioned, and inviting bids for these improvements. In response to the notice inviting such bids, the Davis Construction Company, on August 29, 1921, submitted a bid in which this company offered to pave these sidewalks at $1.65 per square yard, payable in bondsof the city based upon assessments for the cost of such paving at their face value, or to make said improvements at $1.29 per square yard if paid in cash. On September 13, 1921, the city accepted the bid of this company, and entered into a contract with it for laying these sidewalks. This contract recites the alternate bid or proposal of the contractor. After this recital the contract provides that "the contractor contracts to do the paving of the sidewalks specified in the ordinance of August 1, 1921, in exact accordance with the terms and conditions of the specifications hereto attached marked 'Exhibit B, ' and the said contractor agrees to receive in payment therefor the bonds specified and provided for in the ordinance of August 1st, 1921, which said ordinance is by agreement of the parties made a part of this contract."

This contract contains this provision: "In consideration of the faithful performance of all the terms and conditions set forth in this contract, the exhibits thereto, and the plans and profiles, the City of Bainbridge contracts and agrees that it will live up to the terms and conditions of the ordinance of August 1, 1921, and will by resolution apportion the costs of all expenses of paving of said sidewalks pro rata per front foot to the several tracts, parcels, or lots of land abutting upon said improvements, and, after apportioning said costs, levy assessments against said lands and the owners thereof in accordance with said apportionment, which assessments shall be paid in equal installments. That the first installment of such assessment, together with interest from the date upon the whole assessment, shall be due and payable upon the first day of December, 1922, and that the owners of property assessed shall have the privilege of paying the amount assessed against their property within thirty days from the passage of the ordinance or resolution apportioning cost and expense of said paving, without interest, and thus relieve their property from the lien of said assessment; and that, thirty days after the passage of the ordinance or resolution apportioning and levying said assessments, the Mayor and Council of the City of Bainbridge will by resolution provide for the issuance of bonds in the aggregate amount of such assessments remaining unpaid, said bonds bearing date thirty days after the passage of the ordinance levying said assessments."

The contract contained this further provision: "The city further agrees that upon the assessment above specified, if any property owners desire to pay cash within the time, specified, that the city will collect the expense of paving, including the cost of the engineer, and will turn over to the contractor such cash payments; and it further agrees that for such paving covered by the contract as is not paid for in cash it will deliver to said contractor the bonds specified in this contract, which said bonds shall bear six per cent, interest, and said contractor further agrees to accept said cash or said bonds in full and complete settlement of all his charges under this contract." Attached to the contract is the bid offered by the Davis Construction Company.

On March 6, 1922, Judge B. B. Bower, Sr., addressed to the mayor and aldermen of the city of Bainbridge, to the Davis Construction Company, and to the chairman of the street committee of said city his protest against paving the sidewalks on the north side of Planter street, and on the south side of Calhoun street between Clay and Webster streets, on which portions of said streets his residence property abutted. This protest was based upon the ground that the proceedings to pave said sidewalks were contrary to law and to facts; and he notified said parties that he would not pay for the same or any part thereof, and would take legal steps against said sidewalk pavements being put down or constructed and against paying for the same. This protest was duly served upon the parties to whom it was addressed. On March 7, 1922, this protest was considered and overruled by the mayor and council of the city. Twelve fi. fas. were issued for the annual installments due the city of Bainbridge for paving the sidewalks abutting up on the residence property of Judge B. B. Bower, Sr., under alleged assessments made under the act of August 10, 1920; these installments being for the years 1922, 1923, 1924, 1925, 1926, and 1927. They were all signed by "T. H. Buckner, Treasurer of the City of Bainbridge." They consisted of two series of six fi. fas. each, the first series consisting of six fi. fas. which we denominate original, and the second series consisting of six fi. fas. which we denominate alias fi. fas. Of the first series those for the years 1922,

1923, and 1927 were dated December 1, 1927. Those of the first series for 1924, 1925, and 1926 were dated respectively December 1,

1924, 1925, and 1926. The fl. fas. of the first series for the years 1922 and 1923 were issued against a described lot or parcel of land on Planter street, "of the goods and chattels, lands and tenements of B. B. Bower." The fi. fas. of the series for the years 1924, 1925, 1926, and 1927 were issued against the same described lot or parcel of land, "of the goods and chattels, lands and tenements of——." The fi. fas. of the second series for the years 1922 and 1923 were dated February 1, 1927; and those of the series for the years 1924,

1925, 1926, and 1927 were dated December 1, respectively. The fi. fas. of the series for 1922 and 1923 were issued against a described lot or parcel of land at the southeast corner of Calhoun and Clay streets in the city of Bainbridge "of the goods and chattels, lands and tenements of B. B. Bower"; and those for the years 1924, 1925, 1926, and 1927 wereissued against the same described lot or parcel of land, "of the goods and chattels, lands and tenements of——."

These fi. fas. were levied upon the respective lots or parcels of land against which they issued. An affidavit of illegality was interposed by G. G. Bower for himself and as agent of the executors of the estate of B. B. Bower, Sr., deceased, and of E. "V. Bower, Byron Bower, D. R. Bower, J. D. Bower, and L. C. Bower, upon the following grounds: (1) The contract under which the paving of these sidewalks was done was illegal and void, for the reason that it violated the provisions of the charter of the city which prohibited a sale or disposition of these bonds at less than par; and in consequence of the illegality of the contract there could be no legal assessment for the paving of the sidewalks on the streets on which abutted the residence property of Judge B. B. Bower, Sr. (2) The amounts for which the fi. fas. were issued were not due. (3) The fi. fas. were not based upon any assessments made by the mayor and aldermen of the city. (4) Defendants were not served with any process; they did not have their day in court; nor were they served with any notice that the city intended to pave either Calhoun or Planter streets. (5) Defendants have learned that said pavements for which said fi. fas. issued were put down by the contractor under a void and illegal contract made by the city for $1.65 per square yard, payable in bonds of the city, bearing 6 per cent, interest, when the contractor had offered in his bid to do the work for $1.29 per square yard for cash. (6) In making and performing said illegal contract the mayor and aldermen illegally disposed of said bonds for 20 per cent, less than par, unknown to defendants at the time, and until said contract had been fully consummated. (7) The city advertised that it would accept the lowest and best bid; but in violation of this accepted the highest and worst bid. (8) The provision of the charter of the city providing for the issuing of these fi. fas. and their collection violates article 7, § 6, par. 1, of the Constitution of this State. (9) Defendants protested the paving of these sidewalks before...