Lanham & Sons Co. v. City of Rome
| Decision Date | 14 June 1911 |
| Citation | 71 S.E. 770,136 Ga. 398 |
| Parties | LANHAM & SONS CO. v. CITY OF ROME et al. BOSWORTH v. SAME. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
The attack upon the passage of the acts of the Legislature here involved is controlled by the decisions in De Loach v Newton, 134 Ga. 739, 68 S.E. 708, and Atlantic Coast Line R. Co. v. State, 135 Ga. 545, 69 S.E. 725.
Where a municipal charter authorized the paving of streets and the assessment of a specified portion of the cost thereof upon lots abutting upon them, required notice to be given to the owners of such lots, and provided a method by which such owners should have an opportunity to question and have a judicial determination as to the validity and amount of such assessments in proceedings for their collection, this satisfied the constitutional requirement of due process of law.
A statute which afforded such opportunity for contest by means of an equitable proceeding for injunction was not obnoxious to the provision of the fourteenth amendment of the Constitution of the United States which declares that no state shall deprive any person of property without due process of law, because such act required that the contesting property owner should pay the amount which he admitted to be due, if any, and that this should be set out in the proceedings and verified.
While the act of 1907 (Acts 1907, p. 897), and the act of 1908 (Acts 1908, p. 904), amending the charter of the city of Rome, were repealed by the act of 1909 (Acts 1909, p. 1255) the last-mentioned act covered the subject-matter of the two former, and substantially reenacted their provisions, with certain changes. It did not destroy the right of the municipality to collect executions which had previously been issued for assessments upon abutting property for street paving.
A ground of attack upon executions issued to collect assessments for street paving, alleging that they did not follow the law under which they were issued in relation to the property upon which a levy should be made, will be treated as abandoned, where not referred to in the brief.
As the acts of the Legislature under which these proceedings were had were not unconstitutional for any reason urged against them, as an ample opportunity was furnished to the owners of abutting lots to contest the amount of the assessments or the legality of the proceedings to levy and collect them, if owners of such property did not pursue the remedy thus provided, but proceeded by general equitable petition to enjoin the collection of such assessments, on the ground that the proceedings were not in accordance with the law and certain items of the assessments were improper, an injunction was properly refused.
Error from Superior Court, Floyd County; Geo. L. Bell, Judge.
Actions by the Lanham & Sons Company and by E. L. Bosworth against the City of Rome and others, to enjoin the collection of a street assessment. Judgment for defendants in each case, and plaintiffs bring error. Affirmed.
Maddox & Doyal and M. B. Eubanks, for plaintiffs in error.
Max Meyerhardt, Nathan Harris, J. Branham, and Lipscomb Willingham & Wright, for defendants in error.
Lanham & Sons Company and Bosworth each filed an equitable petition against the city of Rome, seeking to enjoin against executions which had been issued against them and their lots respectively, on account of a street improvement. In each case the injunction was refused, and exception was taken. The cases were argued together in this court.
The grounds of attack by the plaintiffs may be summarized under the following general heads: (1) That the act of the Legislature under which the executions were issued was unconstitutional on account of the defects in the record as to the method of its passage; (2) that the original act, as amended, was in violation of the fourteenth amendment of the Constitution of the United States; (3) that the original and amended act were repealed by the subsequent act creating a new charter for the city of Rome; (4) that there was a failure to comply with the act in regard to the methods of procedure, both before and after the work was done; (5) that certain items included in the assessments were improper.
By the act of August 22, 1907 (Acts 1907, p. 897), the charter of the city of Rome was amended, and, among other things, provision was made in regard to grading, paving, and macadamizing the streets. By the eighth section the board of public works was directed to cause a survey to be made of the streets, sewerage, and waterworks system, and to proceed as in the act set forth. By the ninth section an assessment of one-third of the cost of paving or macadamizing such a street was authorized to be made against the owners of abutting property, which should become a lien on such property, "to be enforced by execution issued as provided for collecting other city taxes." By the act of August 11, 1908 (Acts 1908, p. 904), the charter of the city of Rome was again amended. It was provided that, upon the completion of one or more sections of pavement between intersecting streets, the board of public works should ascertain the proportionate cost chargeable to owners of abutting property, and certify this to the mayor and city council; that the latter should make an examination, and, if the action were found correct, they should approve it, and cause the clerk to give written notice of the result to such owners of abutting property; that the amount so assessed should become immediately due and payable; that a copy of the notice should be served on the owner or occupant; and that the city should proceed immediately to collect and pay over the money to the board of public works. It was also provided that if any owner of abutting property should desire to contest the amount of the assessment thereon, or the legality of any proceeding growing out of or connected with the pavement of the streets of the city, he might do so by means of an application for a writ of injunction, but that no temporary restraining order or permanent injunction should be granted unless and until such contestant should first pay to the city the full amount admitted by him to be due, with interest thereon; and it was required that these facts should be fully stated in detail in the petition and verified by the applicant.
On August 17, 1909, an act was approved the purpose of which was to amend, consolidate, and supersede the several acts incorporating the city of Rome, and to create a new charter and municipal government therefor. Acts 1909, p. 1255. This included provisions in regard to the board of public works, the paving of streets, etc., of a generally similar nature to those in the former act, but declared that the previous acts were repealed. The method of contesting the amount of the assessment against abutting property or the legality of any proceeding growing out of or connected with the pavement of the streets, provided by the last-mentioned act, was by means of an affidavit of illegality, stating the cause of such illegality and the amount which the affiant admitted to be due. The amount so admitted was required to be paid to the levying officer before the affidavit should be received; and upon the filing of such affidavit it was to be returned to the Superior Court for trial. The work involved in the present controversy was done after the passage of the act of 1908, and upon the refusal to pay the assessment executions were issued in May, 1909. In January, 1910, they were levied and petitions were filed to enjoin further proceedings under them.
1. The objections made to the passage of the acts involved are concluded by the decisions in De Loach v. Newton, 134 Ga. 739, 68 S.E. 708, and Atlantic Coast Line R. Co. v. State, 135 Ga. 545, 69 S.E. 725.
2. The next question which arises is whether the act of 1907 ( that of 1908) and the act of 1909 were void, on the ground that they afforded no due process of law by which the owner of property abutting on a paved street might contest the amount and legality of the assessment. On behalf of the plaintiffs in error it was contended that they did not do so, and that therefore such an assessment amounted to taking property...
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