Ga. R. & Banking Co v. Decatur

• Decision Date: 14 February 1912
• Citation: 137 Ga. 537,73 S.E. 830
• Court: Georgia Supreme Court
• Parties: GEORGIA R. & BANKING CO. v. TOWN OP DECATUR. TOWN OP DECATUR. v. GEORGIA R. & BANKING CO.

73 S.E. 830

(137 Ga. 537)

GEORGIA R. & BANKING CO.

v.TOWN OP DECATUR.

TOWN OP DECATUR.

v.GEORGIA R. & BANKING CO.

Supreme Court of Georgia.

Feb. 14, 1912.

(Syllabus by the Court.)

1. Municipal Corporations (§ 425^*)—Public Improvement—Assessments—Property Liable.

A railroad company owns a strip of land in a municipality, 116 feet wide, through the center of which runs its main line of railroad. The land is located between two streets of the town, along which the town, under legislative authority, laid, respectively, 4, 456 and 938 feet of sanitary sewer pipe. The land is held for present use to support the roadbed and to provide for an increase of tracks, which the future needs of the railroad probably may require. Under such circumstances the land abutting on the sewers, of such depth as will not interfere with the present roadbed, is liable for the cost of assessment of the local improvement, and such assessment is not illegal because the abutting property in its present condition, and as devoted to its present use, may not be specifically benefited by the improvement.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 1031-1034; Dec. Dig. § 425.*]

2. Municipal Corporations (§ 465*)—Public Improvements — Assessments — Statutory Provisions.

Under its amended charter (Acts 1903, p. 504) the town of Decatur was authorized to construct a system of sewerage and to assess against abutting property on each side of a street improved fifty cents per lineal foot. The legislative determination of the cost of the local public improvement and its apportionment to the abutting land is conclusive as to these matters.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. § 1108; Dec. Dig. § 465.*]

3. Municipal Corporations (§ 425^2-*)—Public Improvements—Assessment—Property Liable.

In the absence of express legislative authority, the main track of a railroad company is not subject to levy and sale to satisfy a lien for assessment for local improvements. It follows that an execution for assessments issued against a lot of land bisected by the main track of a railroad is not liable in solido for improvements on two streets which bound the lot of land and between which the main track is located, and therefore a portion of the land on one side of the railroad track cannot be levied on to satisfy assessments made against the entire strip of land through which the railway runs, on account of sewers constructed in streets lying on each side of the track.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 1031-1034: Dec. Dig. § 425.*]

Error from Superior Court, De Kalb County; L. S. Roan, Judge.

Proceedings under execution on an assessment by the Town of Decatur against the Georgia Railroad & Banking Company. To the judgment, both parties bring error. Judgment reversed on both bills of exceptions.

Jos. B. & Bryan Cumming and Jno. S. Candler, for plaintiff in error.

Mayson & Johnson and Leslie Steele, for defendant in error.

EVANS, P. J. By an act approved July 30, 1903 (Acts 1903, p. 504), the charter of the town of Decatur was so amended as to authorize the construction of a system of sewerage for that town. The caption and first section of the act are as follows:

"An act to amend the charter of the town of Decatur, in the county of De Kalb, so as to authorize the mayor and council of said town to construct a system of sewerage for said town, and to assess the cost of constructing said sewerage system against the abutting property, or the property through which said sewer may be constructed, and against the owners thereof, and for other purposes. "Section 1. Be it enacted by the General Assembly of the state of Georgia, and it is hereby enacted by the authority aforesaid, that from and after the passage of this act the mayor and council of the town of Decatur, in the county of De Kalb, shall have full power and authority to lay down and construct sewers in said town, and to assess the sum of fifty cents per lineal foot upon the property and estates respectively abutting on said sewer on each side of the street along which said sewer is laid or constructed; and in consideration of the payment of said assessment, the owners of said estates shall have the right to connect their drains from said abutting property for the discharge of sewerage into said sewer; and in case any such sewer is laid down or constructed through or on any private property, along the course of any natural drain or otherwise, a like sum of fifty cents shall be assessed upon such property abutting on each side of said sewer for every lineal foot, making in all one dollar for every lineal foot to be assessed upon such property through which sewers are constructed as aforesaid: Provided, that when the same party owns the land on both sides of a sewer running through his land, he shall be assessed only for one side thereof; and in consideration of the payment of said assessment, the owners of real estate, respectively, on each side of said sewer, through or over which such sewer may be constructed, shall have the right to connect their drains from said abutting property for the discharge of sewerage into said sewer. The extent and character, material used, and expense of sewers constructed, as well as the time and manner of constructing the same, shall be in the discretion of the mayor and council of said town, to be prescribed from time to time by ordinance. The remaining cost of all sewers not thus assessed shall be paid by said mayor and council from the treasury of said town."

The Georgia Railroad & Banking Company owns a lot of land in the town, lying between College street and Railroad avenue, 116 feet in width, along the center of which is constructed its main line of railroad track. The town constructed a line of sewerage pipes in front of this property on College street, 4, 456 feet, and a line of sewerage pipes, 938 feet, on Railroad avenue. For the construction of this sewer the railroad's property was assessed 40 cents for each lineal foot the sewer pipe was laid. An execution was issued against the property in solido for the aggregate sum. This execution was levied upon a rectangular strip of the land 30 by 912 feet, lying on one side of the railroad track. The railroad company interposed its affidavit of illegality; and on demurrer all grounds of the affidavit, except such as set up that the cost of the work as constructed was less than the amount assessed, were stricken. The case was tried by the judge without the intervention of a jury. He adjudged the railroad company subject to one-half of the amount assessed against its property. The company and the town sued out bills of exceptions.

Though assessments for local improvements are not taxes, within the meaning of the requirement of the Constitution that taxes must be ad valorem and uniform, nevertheless assessments for local improvements, such as street paving and sewerage, are an exercise of the taxing power. While assessments for sewerage are primarily referable to the taxing power, they also have in many instances the...