Georgia Power Co. v. City of Decatur
| Decision Date | 02 July 1930 |
| Docket Number | 7349. |
| Citation | 154 S.E. 268,170 Ga. 699 |
| Parties | GEORGIA POWER CO. v. CITY OF DECATUR. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
The General Assembly, by virtue of the acts approved August 18 1919, and August 12, 1924 (Ga. Laws 1919, p. 934; Laws 1924 p. 534), amending the charter of the city of Decatur conferred full power and authority upon said city, in the discretion of its commissioners, to pave any streets therein and, when street railway tracks are located in a street ordered paved, to assess the cost of paving that portion of the street between and for two feet on each side of said tracks against the company owning the tracks and its property in said municipality, used in the operation of its street railway system therein.
Power of determining benefits received by street railway property from local improvements is legislative; authority to determine benefits received by street railway property from local improvements held vested solely in commissioners of city of Decatur; benefits to street railway property from local improvements will not be inquired into by courts unless there has been arbitrary abuse of authority by city commissioners; assessment against street railway of cost of paving between tracks and for two feet on each side thereof held not abuse of authority; all street railway property in city is subject to lien for cost of paving between tracks and for two feet on either side, subject to judicial enforcement (Laws 1919, p. 934; Laws 1924, p. 534).
The power of determining the benefits to be received by the property of the street railway company from local improvements is a legislative one; and in this case, by virtue of the charter of the city of Decatur, this authority was vested solely in the commissioners of said city, who, in the exercise of said authority, have determined the same; and the question of benefits to the company's property will not be inquired into by the courts unless it is made to appear that there has been an arbitrary abuse of such authority. The evidence in this case establishes no such abuse. The charter of said city as amended creates a binding lien upon all the property of the street railway company located within said municipality, and used in the operation of its street railway therein, for the amount of the cost of paving said area occupied by its tracks and for two feet on either side thereof, located in the street which lien under the facts in this case is subject to judicial enforcement.
Act authorizing city to assess cost of paving against street railway property held not confiscation of property without due process and equal protection of law; act authorizing city to assess cost of paving against street railway property held not taking of property for public use without compensation; act authorizing city to assess cost of paving against street railway property held not in violation of Constitution requiring uniform taxation (Const. U.S. Amend. 14; Const. Ga. art. 1, § § 1, 3, par. 1; art. 7, § 2, par. 1).
The legislative acts cited amending the charter of the city of Decatur are not in violation of any of the specified provisions of either the Constitution of the United States or the Constitution of the state of Georgia.
Owner of street railroad held liable for cost of paving between tracks and for two feet on either side; paving assessment could be recovered by city against power company organized subsequent to lease of street railroad and becoming liable for assessment (Civ. Code 1910, § § 2607-2609).
The cost of paving that portion of East Ponce de Leon avenue in said municipality lying between and for two feet on either side of the street railway tracks located therein being a lawful assessment against the Georgia Railway & Electric Company, the owner of said tracks, and enforceable against the property of said company, used by it in the operation of its street railway system, the Georgia Railway & Power Company became, by virtue of the express terms of its lease of the franchise and property of said Georgia Railway & Electric Company, executed prior to the levying of the paving assessment in question, liable for the payment thereof; and the Georgia Power Company, having subsequently to said lease, become an incorporated consolidated corporation under the provisions of sections 2607, 2608, and 2609 of the Civil Code 1910, composed of the Georgia Railway & Electric Company, the Georgia Railway and Power Company, and other constituent corporations by virtue of a consolidation agreement filed with the secretary of state, whereby it became liable for the payment of the amount of said paving assessment so levied, said assessment may be recovered in an appropriate action brought by said city of Decatur against the said Georgia Power Company.
Pleadings of equitable nature in claim case must be germane to issue whether property levied on is subject to execution; issue in claim case cannot be extended to general action wherein either party may obtain general judgment in personam (Civ. Code 1910, § 5157).
While pleadings of an equitable nature may be filed by way of amendment by either party in a claim case, such pleadings must be germane to the issue of such case, which is whether the property levied upon is or is not subject to the execution levied; and this rule cannot be so extended as to convert the issue in a claim case into a general action where either party may obtain a general judgment in personam, as was done in the instant case.
Error from Superior Court, DeKalb County; John B. Hutcheson, Judge.
Execution by the City of Decatur against the Georgia Railway & Power Company, in which the Georgia Power Company filed a claim. Judgment for plaintiff, claimant's motion for new trial was overruled, and claimant brings error.
Reversed.
Act authorizing city to assess cost of paving against street railway property held not confiscation of property without equal protection of law (Const.U.S. Amend. 14; Const.Ga. art. 1, § 1).
Acting under its charter powers as are conferred by the amendatory acts of the General Assembly (Ga. Laws 1919, p. 934; Laws 1924, p. 534), the city of Decatur through its commissioners passed ordinances in conformity thereto in the interest of public travel and street drainage, providing for the paving of East Ponce de Leon avenue in said city, along and on which are located the street railway tracks of the Georgia Railway & Electric Company, a corporation, operated under a franchise granted by said city. Said street railway system was then in the control of and was being operated by the Georgia Railway & Power Company, a corporation, by virtue of a lease for the term of 999 years. In accordance with said authority conferred upon it by the General Assembly, the city of Decatur assessed against the Georgia Railway & Power Company the cost of paving that portion of said street between the tracks and for two feet on each side thereof, which the company refused to pay; whereupon, in accordance with said legislative authority, the city clerk issued execution against the company, directing the city marshal "that of the goods and chattels, lands and tenements of the Georgia Railway and Power Co., a corporation of the State of Georgia, you cause to be made, by levy and sale thereof," the amount assessed as costs of said paving. This fi. fa. was levied by the city marshal on certain land lying in the city of Decatur, but not located on the street improved, and on which is erected a subpower station, as the property of the defendant in fi. fa. The Georgia Power Company filed with the marshal its statutory claim, which was returned to the superior court of DeKalb county for trial. An equitable amendment in aid of said claim was allowed, in which the claimant seeks to establish its title to the property levied upon, and to avoid the liability of the paving assessment, on the grounds: (a) That the fi. fa. is not issued or proceeding against any street railway company which has a track running along or across the street paved; (b) that the tracks on said street paved are the property of the Georgia Railway & Electric Company, and not of the Georgia Railway & Power Company; and that the legislative authority in question confers on the city no right to levy its fi. fa. for said paving on the property of either of these companies for the reason that the property of the street railway company located in said street received no benefit from said paving, and only property which is directly benefited by a street improvement can be held subject to the cost of a paving assessment; (c) that if it should be held that such legislative authority confers the power on said city to collect the costs of said paving as assessed out of the street railway company's property generally, whether benefited thereby or not, said charter amendments by the Legislature providing for the assessing of the costs of said paving, and the ordinances of said city enacted thereunder for that purpose, are unconstitutional and void for the reason that the same are in violation of (1) the due process clause of the Fourteenth Amendment to the Constitution of the United States, and of the Constitution of Georgia (article 1, § 1, pars. 2, 3), as set forth in the Civil Code (1910), § § 6358, 6359; (2) the inhibitory clause of the Constitution of Georgia against the taking of private property for public use without adequate compensation being first paid (article 1, § 3, par. 1), as is set forth in the Civil Code (1910), § 6388; and (3) the uniform tax provisions of the Constitution of Georgia (article 7, § 2, par. 1) as set forth in the Civil Code (1910), § 6553. In this amendment it is prayed that the said acts of the Legislature amending the charter of said city, and the ordinances...
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