Lockridge-Rogers Lumber Co. v. City of East Point, LOCKRIDGE-ROGERS

• Decision Date: 21 March 1958
• Docket Number: LOCKRIDGE-ROGERS,No. 37069,No. 2,37069,2
• Citation: 103 S.E.2d 160,97 Ga.App. 357
• Parties: LUMBER COMPANY v. CITY OF EAST POINT
• Court: Georgia Court of Appeals

Page 160

103 S.E.2d 160

97 Ga.App. 357

LOCKRIDGE-ROGERS LUMBER COMPANY v. CITY OF EAST POINT.

No. 37069.

Court of Appeals of Georgia, Division No. 2.

March 21, 1958.

Guy Parker, Atlanta, for plaintiff in error.

Phillips, Johnson & Shoob, Ezra E. Phillips, Atlanta, for defendant in error.

Syllabus Opinion by the Court

CARLISLE, Judge.

To the levy of a fi. fa. issued by the City of East Point for the collection of a sewer assessment, the defendant filed an affidavit of illegality in which it contended, among other things, that the charter of the City of East Point and the ordinance adopted pursuant thereto requiring abutting landowners to pay the cost of sewers 'are violative of Article I, Section 1, Paragraph graph 3 of the Constitution of this State, which provides that no person shall be deprived of life, liberty or property without due process of law'; that said charter and ordinance 'violates the Fourteenth Amendment of the Federal Constitution in that said charter and said ordinance do not afford to the defendant in fi. fa. any notice of said assessment and an opportunity to be heard thereon in contravention of the said Fourteenth Amendment of the Constitution of the United States, which provides that no person's life, liberty, or property shall be taken without due process of law'; that the defendant had never been given any notice of the intention of the city to construct the sewer and that it was not indebted to the City of East Point for the sum set forth in the execution or for any sum; that for all the reasons specified in the affidavit, the ordinance assessing its property was illegal and void and that the execution proceeding thereunder was illegal and void. The trial court overruled the affidavit of illegality and ordered that the levy proceed. The exception here is to that judgment. The charter of the City of East Point was enacted in 1912 (Ga.L.1912, p. 862), and has since been amended at least 12 times. Ga.L.1937-38, Ex.Sess., pp. 1085, 1092; 1939, pp. 1018, 1039; 1943, p. 1400; 1945, p. 689; 1947, p. 1286; 1949, pp. 1633, 1926; 1950, p. 2569; 1951, &. 3220. Held:

It is the duty of this court to inquire into its jurisdiction in any case in which there may be a doubt as to the existence of jurisdiction. Cuttino v. Mimms, 87 Ga.App. 643, 75 S.E.2d 212; Scott v. Minnix, 95 Ga.App. 589, 590, 98 S.E.2d 196. The Supreme Court of this State has held that, 'In order to raise a question as to the constitutionality of a 'law', at least three things must be shown: (1) the statute, or particular part or parts of a statute which the party would challenge must be stated or pointed out with fair precision; (2) the provision of the Constitution which it is claimed has been violated must be clearly designated; and (3) it must be shown wherein the statute or some designated part of it, violated such constitutional provision.' Flynn v. State, 209 Ga. 519, 521-522, 74 S.E.2d 461, 464. This court in Staub v. City of Baxley, 94 Ga.App. 18, 93 S.E.2d 375, following the reasoning of cases like the Flynn case, held that an attack on the constitutionality of a municipal ordinance must be made with similar...