Clarke v. Mayor and Council of Millen

• Decision Date: 23 November 1938
• Docket Number: 12349.
• Citation: 200 S.E. 698,187 Ga. 185
• Parties: CLARKE et al. v. MAYOR AND COUNCIL OF MILLEN.
• Court: Georgia Supreme Court

200 S.E. 698

187 Ga. 185

CLARKE et al. v. MAYOR AND COUNCIL OF MILLEN.

No. 12349.

Supreme Court of Georgia

November 23, 1938

Error from Superior Court, Jenkins County; Wm. Woodrum, Judge.

Suit by Mrs. N. S. Clarke and others against the Mayor and Council of Millen involving validity of levy of property for street improvement. To review an adverse judgment, plaintiffs bring error.

Affirmed.

Chas G. Reynolds, of Perkins, for plaintiffs in error.

Dekle & Dekle, of Millen, for defendant in error.

Syllabus OPINION.

DUCKWORTH Justice.

The Millen Street Improvement Act approved August 19, 1927 (Ga.L.1927, p. 1404), authorizing the mayor and council of the City of Millen to 'grade, pave, macadamize, drain or otherwise improve any street,' etc., declares that the mayor and council, after publication of a resolution and failure of a majority of property owners to file a protest in writing, 'shall have power to cause said improvement to be made and to contract therefor, and to levy assessments or liens provided for;' that the 'lots,' pieces or parcels of land fronting and abutting upon both sides of said improvements shall be charged with the cost thereof;' that the mayor and council shall have power to pass ordinances, 'as may be necessary to require the owners of all property subject to assessment to pay the cost of such improvement,' and that the cost of sewer, gas, and water connections 'shall be taxed against such property * * * and made a part of the general assessment;' that after the cost is ascertained it shall be the duty of a named committee 'to appraise and apportion the cost and expenses of the same to the several tracts of land abutting on said improvements;' that 'assessments in conformity to said appraisement and apportionment as confirmed by council [after notice by advertisement] shall be payable in ten equal installments,' etc.; that 'the said mayor and council shall by ordinance levy assessments in accordance with said appraisement and apportionment as so confirmed against the several tracts of land liable therefor;' that 'said ordinance shall also provide that the owner of the property assessed shall have the privilege of paying the amounts of their respective assessments within thirty days from the date of the passage of said ordinance,' to avoid the payment of interest; that the assessment and interest thereon 'are hereby declared to be a lien against the lots and tracts of land so assessed;' that it shall be the duty of the treasurer, 'in cases of a default of payment of such installment or assessment with interest, to issue an execution against the lot or tract of land assessed for such improvement or against the party or person owning the same for the amount of such assessment with interest,' and that the levying officer 'shall levy the same upon the adjoining real estate liable for such assessment and previously assessed for such improvement.' Held:

1. Assessments made for improvements under the act and in strict conformity therewith are charges against the land and not merely charges against the interest of some person in the land. An execution issued pursuant to the terms of the act for the collection of an assessment properly made, which commands the levying officer 'that of the following lands and tenements of' a named person, 'to-wit' (and then describes the land assessed), he cause to be made the sum of the execution as an assessment for paving under the act, and further commands him to sell 'the said real estate or so much thereof as shall be sufficient to satisfy and pay said installment,' etc., is an execution in rem and not an execution in personam. That portion of the act italicised above, when construed with the act as a whole and in connection with that portion of the same section that the levying officer 'shall levy the same' on the land assessed, is merely for the purpose of identification and further description of the land itself, and not the interest against which the execution issues, and does not authorize the issuance of an execution in personam. See Hayden v Atlanta, 70 Ga. 817, 822; Brumby v. Harris, 107 Ga. 257, 258, 33 S.E. 49; Norman v. Moultrie, 157 Ga. 388 (2), 121 S.E. 391; note in 35 L.R.A. 58; 25 R.C.L. 93, § 8; Id., 172, §§ 86, 87; 44 C.J. 802, § 3407; Id., 877, § 3586.

2. While as to common-law executions, executions in rem as to the interest of a particular person or persons in the property, and general executions for taxes, 'the officer making the levy shall enter the same on the process by virtue of which such levy is made, and in such entry shall plainly describe the property...