Montgomery v. City of Atlanta
| Decision Date | 15 July 1926 |
| Docket Number | 5230,5231. |
| Citation | 134 S.E. 152,162 Ga. 534 |
| Parties | MONTGOMERY et al. v. CITY OF ATLANTA et al. CITY OF ATLANTA et al. v. MONTGOMERY et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Before the city of Atlanta can pass an ordinance and make a valid contract for the paving or repaving of a street, under an amendment to its charter by the act of August 19, 1919 (Laws 1919, p. 821), and before it can pass a valid ordinance levying an assessment against owners of land abutting on such street or portion of street for their shares of the cost of such street improvement, it must be petitioned in writing for such street improvement by the owners of the majority of the frontage of land abutting on said street or portion of said street. This fact is jurisdictional; and the nonexistence thereof renders an ordinance and contract made for such purpose invalid.
(a) The owners of abutting property may be precluded from attacking the validity of such ordinance and contract on this ground by their failure to make timely objections thereto. Paragraph (b) of section 1 of this act provides for an advertisement giving notice of the introduction of the resolution or ordinance for such street improvement, which shall notify the property owners to appear at the meeting of the general council to be held at a time stated in the advertisement, and make any and all objections they may desire to urge to the passage of such resolution or ordinance; and provides for full opportunity for such owners to make objections to the passage of the ordinance. After hearing any objections, the general council has the full right and power in their discretion to order such street improvement to be made, or to reject the ordinance proposing such improvement. After the passage of such ordinance, all property owners subject to be assessed for the cost of the improvement, who do not within 15 days thereafter commence legal proceedings to prevent such assessment being made, shall be conclusively presumed to have accepted the terms of said ordinance, and to have agreed that the assessment provided for in said act may be made. Property owners who, after due publication of said advertisement, fail to file any objections to the passage of the proposed ordinance for such street improvement, and who fail to take legal proceedings within 15 days after the passage of said ordinance to prevent its passage and the assessment of their property for such improvement, are concluded and barred from taking proceedings to attack the validity of said ordinance for lack of such jurisdictional fact.
By section 100 of the charter of the city of Atlanta, it is unlawful for any member of the general council of the city of Atlanta to be interested, either directly or indirectly, in any contract with the city of Atlanta, the mayor and general council, or any one or more of them, having for its object the public improvement of the city or any part thereof, or the expenditure of its money; and a violation of this section by any member of the general council is made a misdemeanor which is punishable under section 1065 of the Penal Code 1910 of this state. A contract between the city of Atlanta and a construction company, in which a member of council is a large stockholder, is null and void, although such member of council did not vote for the ordinance authorizing such contract, and did not use his influence in procuring other members of council to approve and authorize the making of such contract, and although such contract is fair and free from fraud.
Where the contract for the construction of a public improvement has been made by the city of Atlanta, and an assessment has been levied to pay the contract price of such improvement, the validity of such contract is essential to have validity of the assessment, and if the contract is invalid the assessment is invalid.
Equity requires every litigant who seeks her aid to do equity; and inasmuch as the construction company has expended large sums of money in making this street improvement, of which the city and the plaintiffs have received the benefit, equity will not interpose in behalf of the plaintiffs to annul and set aside the contract for such improvement and the assessment levied against them as owners of abutting property for their shares of the cost of such improvement, although such contract and assessment are illegal and invalid, unless the plaintiffs shall first do equity; and to do equity the plaintiffs must pay their proportionate shares of the cost of making such improvement, in the absence of actual fraud on the part of the construction company.
Under the contract between the city and the construction company for this street improvement, the city agreed to issue bonds to cover the total cost of such improvement, and thereupon to promptly dispose of these bonds and pay the contractor such sums as might be due it for the paving of this street. The trial judge enjoined the city from paying to the contractor any money other than that received from the property owners and enjoined the city from pressing proceedings to validate such bonds, pending the final decision of this case. Applying the principle announced in the preceding headnote, the trial judge erred in so enjoining the city at the instance of the plaintiffs who were seeking affirmative equitable relief.
Error from Superior Court, Fulton County; John D. Humphries, Judge.
Suit by A. Montgomery and others against the City of Atlanta and others. To review judgment rendered, plaintiffs bring error, and defendants assign cross-error. Judgment affirmed on main bill of exceptions; reversed on cross-bill.
Owners seeking affirmative relief against invalid assessment without paying proportionate share of cost of improvement held not entitled to enjoin city from paying contractor or from proceeding to validate bonds. Laws 1920, p. 25; Laws 1921, p. 212.
In February, 1924, a petition was circulated among property, owners on Ponce de Leon avenue in Atlanta, to pave said street from Peachtree street to the Southern Railway. This petition was signed by some of the property owners at that time, among whom was R. J. Spiller, who signed for 1,550 feet; but on account of the fact that the movants in this matter did not get a sufficient number of signatures, the petition was not presented to the city government until October 6, 1924. The total frontage on both sides of that portion of said street that was to be paved was 11,312 feet. The frontage owned by the signers of said petition was 6,622 feet. The amount of frontage necessary to be signed for in order to make a majority of the frontage of said portion of said street was 5,667 feet. It took the amount of frontage for which Spiller signed to make this majority. At the time Spiller signed the petition, he was the owner of 1,557 feet of this frontage. On February 16, 1924, Spiller conveyed this property, with this frontage owned by him, to R. J. Spiller, Incorporated, and his deed of conveyance was recorded on February 25, 1924. On the presentation of said petition to the general council of the city, it was referred to a committee; and bids were called for for the work to be done. Bids were submitted on October 20, 1924, and the bid of MacDougald Construction Company was recommended for acceptance by the committee.
On November 3, 1924, an ordinance was introduced in council to pave said portion of said street. This ordinance recited that the petition was signed by the owners of more than 50 per cent. of the property abutting upon the portion of the street to be paved. This petition was accompanied by the certificate of the chief of construction that the petition was signed by the owners of more than 50 per cent. of the property abutting on said portion of said street. By order of council passed on November 5, 1924, notice of the introduction of this ordinance was duly published. In this notice it was stated that said ordinance would be taken up for consideration by the mayor and general council on November 17, 1924, and that property owners and others interested were invited to appear at that time and urge any objections they might wish to make thereto. The notice specified the character of pavement and the price thereof. On November 17, 1924, there being no objection urged, said ordinance was duly passed by council. On November 20, 1924, it was duly concurred in by the aldermanic board. On November 21, 1924, it was duly approved by the mayor. On the same dates the recommendation of the street committee of council, of November 14, 1924, that the bid of the MacDougald Construction Company be accepted, was adopted by council and the aldermanic board and approved by the mayor. No legal proceedings were instituted by any one within 15 days from the passage of these ordinances, to prevent the carrying out of the same, or to prevent the repaving of the street as provided therein.
At the time these matters were presented to and passed on by the city government, E. H. Inman was a member of the city council, and at the same time was a large stockholder in the McDougald Construction Company. Besides, he was surety for this company for various paving contracts previously made with the city of Atlanta, and was surety on large amounts of its maintenance bonds and for large sums of money due by this company to banks, was a large creditor of the company, and was receiving dividends out of the profits of this company. On November 28, 1924, a contract was entered into between the city and the MacDougald Construction Company for the repaving of the street in accordance with the terms of said ordinance. The contractor began the work in December, 1924, and completed it about July 5, 1925. The contractor furnished all...
To continue reading
Request your trial