Georgia Power Co. v. City of Decatur

• Docket Number: 10029.
• Decision Date: 18 September 1934
• Citation: 176 S.E. 494,179 Ga. 471
• Parties: GEORGIA POWER CO. et al. v. CITY OF DECATUR.
• Court: Georgia Supreme Court

176 S.E. 494

179 Ga. 471

GEORGIA POWER CO. et al. v. CITY OF DECATUR.

No. 10029.

Supreme Court of Georgia

September 18, 1934

Syllabus by the Court.

1. The city of Decatur was authorized under its charter, in the discretion of its commissioners, to pave any street in the city, and to assess the cost of the paving of that portion of the street between the tracks and for two feet on each side thereof against a street railway company and its property having and using a track along the street. Under the city charter the amount of such assessment was a blanket lien against such railway company and its property from the time of the ordinance making the assessment. The city was authorized to issue execution against such street railway company and its property for the amount of the assessment to be levied by the city marshal.

2. A lessee holding under a 999-year lease with the right to both possession and rights of the property, with exclusive right to operate same, may be properly treated as the owner of the property.

3. The power of determining benefits from local improvements to the property is a legislative one, and will not be inquired into by the courts unless it is made to appear that the discretion is arbitrarily abused by the authority making the improvement.

4. When paving is done and assessment therefor regularly made in the manner provided in the city charter, a presumption arises that the paving and assessment were legal, and casts the burden of proof on one who attacks the assessment on the ground that the same was an arbitrary abuse of the legislative authority, because of no benefit, or that it is confiscatory. A street railway company that is under contract to maintain and operate a street railway in a city cannot without the consent of the city, avoid the payment of a paving assessment duly made by the city by tendering the city its street railway lines, property, and franchise.

5. The acts of the General Assembly (Ga. Laws 1919, p. 934, and Ga Laws 1924, p. 534) giving the city the authority, and the ordinance of the city thereunder, providing for the pavement of the street on which were located the tracks in use by the street railway company, and requiring the street railway company to pay for the portion of the paving between and on two feet of each side of its tracks, were not, for any reason assigned, in violation of the Fourteenth Amendment to the Constitution of the United States, or of article 1,§ 1, pars 2, 3, of the Constitution of the State of Georgia, embodying the due process and equal protection clauses of the Constitution of the United States and of Georgia; or of article 1, § 3, par. 1, of the Constitution of Georgia against the taking of private property for public use without adequate compensation; or of article 7, § 2, par. 1, of the Constitution of Georgia, which provides a uniform system of taxation.

6. An execution although regularly issued by a city for paving assessment, unless the power be so granted by the General Assembly, cannot be lawfully levied on the property of a street railway company that is being used by the company as part of its system in rendering service to the public.

7. When a street railway company is liable for a paving assessment and subsequently, without payment of the assessment, merges into a new company under an agreement that the new company assumes and agrees to pay all assessments against the old company and its property, and in the merger the old company transfers to the new company all of its property including the street railway property and franchises, that is subject to the lien of the assessment, which new company accepts and appropriates the same to its own use, the acquiring company takes the property impressed with the lien for the payment of the assessment. On failure to pay, the city may, in an equitable proceeding, recover from the new company the amount of the assessment with interest. An equitable proceeding under such circumstances would not be prohibited by article 1, § 1, par. 23, of the Constitution of Georgia, providing that the legislative, judicial, and executive powers shall forever remain separate and distinct.

8. A suit in equity brought by the city on November 17, 1931, to enforce its lien and collection for the paving assessment represented by an execution regularly issued therefor on June 21, 1926, was not barred by the statute of limitations.

9. The demurrers were properly overruled. The verdict was demanded, and no error appeared requiring the grant of a new trial.

Error from Superior Court, Fulton County; G. H. Howard, Judge.

Suit by the City of Decatur against the Georgia Power Company and others. Judgment for plaintiff against the Georgia Power Company and the Georgia Railway & Power Company, named defendants' motion for a new trial was overruled, and named defendants bring error.

Affirmed.

The city of Decatur, on November 17, 1931, brought suit in Fulton superior court against the Georgia Power Company, Georgia Railway & Power Company, and Georgia Railway & Electric Company, seeking to recover a personal judgment against each of said defendants for a paving assessment assessed against the Georgia Railway & Power Company, for which an execution was issued by the clerk of the city of Decatur on June 21, 1926, against the property of the Georgia Railway & Power Company. The petition, in so far as is material to an understanding of this case, alleged as follows:

The Georgia Power Company is a consolidated corporation chartered by the Secretary of State in 1927 under the laws of the state of Georgia, and particularly under the Civil Code, § 2607 et seq., and is composed of certain constituent corporations, among others the Georgia Railway & Power Company and the Georgia Railway & Electric Company. The Georgia Railway & Electric Company formerly owned and operated a street car system in the city of Atlanta, Fulton county, and in the city of Decatur, De Kalb county, and as a part of said system operated lines between Atlanta and Decatur and other points near Atlanta. On January 6, 1912, the Georgia Railway & Electric Company, by contract, conveyed and leased to Georgia Railway & Power Company, for the term of 999 years, all of its property of every kind, consisting of its street car system, franchises, and all real and personal property. The lease, among other things, provided: "The lessor doth hereby grant, demise, and lease unto the lessee all and singular its railroads, electric-power and steam-heating plants and systems, lands, franchises, contracts, and other property, of every description, real and personal, now owned or hereafter to be acquired by the lessor, and all its franchises, rights, privileges, easements, permits, licenses, and appurtenances thereunto belonging or otherwise, including the right to demand and receive to the lessee's own use all tolls, rents, revenues, income, and profits. * * * The lessee covenants that it will pay, satisfy, and discharge, as the same shall become due and payable, all taxes, rates, charges, licenses, and assessments, general and special, ordinary and extraordinary, of every nature and description, which have been or may be lawfully imposed or assessed during the continuance of this lease in any way upon the lessor or upon the lessee." That part of the property conveyed by the lease to the Georgia Railway & Power Company was a street car line and franchises in the city of Decatur, located partly on what is known as East Ponce de Leon avenue.

The charter of the city of Decatur authorized the commissioners of the city, in their discretion, to grade, pave, macadamize or otherwise improve the travel and drainage of the streets, squares, public alleys, and lanes of the city. On May 15, 1925, the commissioners of the city, by ordinance duly passed under authority of the city charter, ordained that said street should be paved, and that such improvement was necessary for travel and drainage, and that the cost of such pavement be assessed in full against the street railway company for paving between the tracks and for two feet on each side thereof, and that the remaining cost of said paving be assessed, one half against the real estate abutting on one side of the street where paved, and the other half against the real estate abutting on the other side; and that such assessment be a lien against said street railway company and against said property and the owners thereof from the time of making said assessment. On May 21, 1926, an ordinance was passed by the commissioners of the city, finding that said paving had been completed under the ordinance adopted on May 15, 1925, and that the cost of paving between the tracks of the Georgia Railway & Power Company and for two feet on each side thereof was $13,444.66, and that the clerk of said city should give notice to the Georgia Railway & Power Company of the amount of such assessment and ten days in which to make payment thereof, and that after the expiration of ten days, on failure to pay such assessment, the clerk should issue an execution against the company for that amount, and make collection thereof by levy and sale as provided by the charter of the city. During all of the period of time just shown, the Georgia Railway & Power Company was in possession of all of the property, rights, and franchises of the Georgia Railway & Electric Company by virtue of the 999-year lease. The Georgia Railway & Power Company failed to pay said assessment, and a fi. fa. was issued by the clerk of the city on June 21, 1926, directed to the marshal of the city, against the Georgia Railway & Power Company for $13,444.66, the amount of the assessment. On July 6, 1927, the fi. fa. was levied by the marshal on part of the property conveyed to the ...