Hancock v. Rush
| Citation | 183 S.E. 554,181 Ga. 587 |
| Decision Date | 15 January 1936 |
| Docket Number | 11008. |
| Parties | HANCOCK, Marshal, v. RUSH. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. The petition set forth a cause of action, and was good as against the general and special demurrers.
2. Under the pleadings no substantial issues of fact were made and the court did not err in refusing to refer the case to a jury.
3. The evidence authorized a finding that it was the duty of the defendant marshal to levy the executions which were in his hands, in order to advertise and sell the property liable for the assessments out of which the petitioner's bonds were payable; and the court did not err in granting a mandamus absolute.
4. The authority under the act of 1925 (Ga.Laws 1925, p. 1480) to "grade, pave, macadamize, drain, or otherwise improve any street, avenue, alley, lane, or any part thereof," and to levy assessments therefor against the abutting property owners, is broad enough to include the paving of a sidewalk as part of a street, and to include the cost thereof in the assessment. A street improvement bond issued in accordance with the act is not void because it is issued for the purpose of paving and improving, among other city property, a sidewalk in the city of Thomasville.
Error from Superior Court, Thomas County; W. E. Thomas, Judge.
Petition by B. F. Rush for mandamus against J. M. Hancock, as marshal of the city of Thomasville. To review a judgment granting a mandamus absolute, defendant brings error.
Affirmed.
Statute authorizing city to grade, pave, or otherwise improve any street or any part thereof and to levy assessments therefor against abutting property owners held to authorize paving of sidewalk and to validate street improvement bonds including assessments for sidewalk improvements. Laws 1925, pp. 1480 1481, §§ 1, 2.
B. F Rush, a resident of Greenville, S. C., filed a petition against J. M. Hancock as marshal of the city of Thomasville asking for the writ of mandamus, alleging that he was the owner of certain "street-improvement bonds" which were particularly described in the petition; that the bonds were in default as to the payment of principal and interest, and payment had been demanded and refused; that the bonds had been issued pursuant to an act of the General Assembly (Ga.Laws 1925, p. 1480), and constituted a valid lien on the property mentioned therein, abutting on and along the improvements made; that each and every parcel of the property so abutting was chargeable with its pro rata part of the cost of such improvements according to the number of lineal feet frontage on and along the improvements made; that prior to the issuance and sale of the bonds the mayor and council of the city of Thomasville had passed proper resolutions assessing the several tracts and parcels of land abutting on the improvements with their proper proportions of the cost thereof, which assessments under the terms of the act were payable in ten equal annual installments on September 1st of each year; that a large number of persons had failed and refused to pay the installments assessed against their property for the year 1934 and prior years; that, as was his duty under the said act, the treasurer of the city of Thomasville had issued executions against the persons who owned property as to which there were past-due assessments, and against the property assessed, and such executions had been delivered by him to the marshal for levy; and that under section 10 of the said act it was the duty of the marshal to levy on, advertise, and sell the property liable for the payment of the assessments made against it with which to retire the bonds and the interest due thereon, but that the marshal had failed and refused to do so. Copies of the bonds owned by the petitioner were attached to the petition, and are referred to more in detail hereinafter. Other allegations were read, by way of inducement, as to other bonds not yet matured, and unpaid interest thereon. The court issued a rule requiring the defendant to show cause why the mandamus should not be granted. In response the defendant filed a general and special demurrer on several grounds which are dealt with in the opinion.
In his answer the defendant admitted that he was the marshal of the city of Thomasville; that the treasurer had issued approximately 800 to 1,000 street improvement fi. fas., and delivered them to him; that section 10 of the act set out in the petition was correctly quoted, as to the issuance and sale of the bonds. For want of sufficient information he alleged that he could neither admit nor deny that the petitioner was the owner of the bonds he claimed to own, or that a large number of persons, alleged to be owners of the several tracts or parcels of land set forth in the bonds, had failed and refused to pay the assessments made against their properties. He denied that the mayor and council of the city of Thomasville had, by proper resolution in compliance with the terms of the act, assessed each tract or parcel of land fronting on the improvements made on and along the several streets mentioned and set out, respectively, in each of the series of bonds, with the proper proportion of the cost of such improvements; and that under the terms of the act such assessments were to be paid in ten equal annual installments with interest and to mature on September 1st of each year. He alleged that for lack of sufficient information he could neither admit nor deny whether the petitioner owned certain other bonds, series C, the principal of each of which was not due, but the interest on which was alleged by the petitioner to be past due and unpaid, although he had presented his interest coupons at the office of the treasurer and demanded payment, which was refused. Other denials were made, which are dealt with in the opinion. For further answer the defendant alleged that the mayor and council had not instructed him to levy and collect the fi. fas. which had been delivered to him, and had failed to prescribe by ordinance or otherwise that it was his duty to levy the same and to advertise and sell the property, and therefore that he was under no duty to do so; that if he were required to levy the large number of executions delivered to him, the advertising fees would amount to several hundred dollars which he would have to pay in advance to the newspaper; that no fund had been provided therefor; that no liability had been assumed therefor by the mayor and council; that if required by the court to levy the executions and advertise and sell the property, he would be unable to comply, and it would be unfair and inequitable to require him to undertake or assume the said obligation; that the fi. fas. include assessments for paving sidewalks; that the act confers no authority for paving the sidewalks of the city of Thomasville and to issue bonds therefor, and that such assessments and executions issued for such paving are null and void.
The court overruled the demurrers. The petitioner offered in evidence his affidavit which substantially set forth the facts as alleged in the petition. The defendant objected to the hearing of the affidavit, on the ground that the pleadings made issues of fact which should be submitted to a jury, and moved that the court set the case down for a jury trial. The judge overruled the motion, and heard the evidence on the affidavit of the petitioner. No evidence was introduced by the defendant. The court granted a mandamus absolute, specifying in the order that the defendant proceed with all due diligence to levy the executions in his hands with respect to bonds, series C. E, and D, on the tracts or parcels described in the executions, and thereafter to proceed with all due diligence to cause to be advertised for sale the property levied on, pursuant to the provisions of the act of 1925, and to bring said property to sale; further providing that the defendant execute the order by levying not less than ten of said executions each month, and thereafter causing the tracts or parcels of land so levied on to be advertised for sale and be brought to sale pursuant to the provisions of the aforesaid act of 1925. The defendant excepted to that judgment, and to the rulings stated above.
S. P. Cain, of Cairo, and H. H. Merry, of Thomasville, for plaintiff in error.
Copeland & Dukes and Wilcox, Connell & Wilcox, all of Valdosta, for defendant in error.
In order properly to consider the assignments of error, it is desirable first to set forth certain provisions of the act of 1925 (Ga.Laws 1925, p. 1480) under the authority of which the street improvement bonds were issued. That act provides "That the Mayor and Council of the City of Thomasville is hereby authorized and empowered to establish and change the grade of any streets, avenues, alleys, lanes and other places in the City of Thomasville and to improve the same by paving, macadamizing and draining the same whenever in its judgment the public convenience and welfare may require such improvements, subject only to the limitation prescribed in this Act." Section 1. Then follows provisions as to resolutions of the mayor and council declaring such work necessary, advertisement of such resolution, protests from owners, and the statement that "if the owners of a majority of the land liable to assessment to pay for such improvement of any such highway shall not within fifteen (15) days after the last publication of such resolution, file with the clerk of said city their protest in writing against such improvement, then said Mayor and Council shall have power to cause said improvement to be made and to contract therefor." Section 2. Then are set out provisions for the proportions in which the abutting property owners, and the city...
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