Speer v. Mayor

• Decision Date: 13 July 1890
• Parties: Speer et al. v. Mayor, Etc., of Athens.
• Court: Georgia Supreme Court

11 S.E. 802

85 Ga. 49

Speer et al.

v.Mayor, Etc., of Athens.

Supreme Court of Georgia.

July 13, 1890.

Statutes — Enactment — Evidence — Constitutional Law—Taxation—Street Assessments.

1. Whether proper notice has been given before the introduction of a local or special bill is for decision by the legislature, and, where an act is attacked as unconstitutional for want of such notice, evidence in regard thereto outside of the journals of that body will not be received by the courts.

2. The act approved October 16, 1889, conferring upon the mayor and council of the city of Athens power "to construct, pave, and otherwise improve sidewalks in said city, and to assess and collect the cost thereof out of the real estate abutting on the sidewalk so constructed, paved, or otherwise improved, " is not in violation of the constitutional requirement that taxation shall be ad valorem and uniform, such assessments not being "taxation, " within the meaning of the constitution.

3. Nor is the owner of such real estate thereby deprived of his property without due process of law, the act providing that when execution is issued for the amount of the assessment, he may file an affidavit denying the whole or any part thereof, which affidavit is made returnable to the superior court, the issue thereon to be tried and determined as in cases of illegality. At such hearing he may show fraud or mistake, error or excess in the amount of the execution, want of statutory authority to support the assessment, or failure to comply with the provisions of the statute and the ordinances in pursuance thereof.

4. Benefit to the owner of the real estate assessed, so far as necessary to be passed upon, as well as the necessity or reasonableness of the improvement, being for the determination of the legislature, is concluded by the act authorizing the assessment, and will not be inquired into by the courts, unless in extraordinary cases presenting a manifest abuse of legislative authority. Such assessments, not being an exercise of the right of eminent domain, do not fall within the constitutional provision that private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid.

(Syllabus by the Court)

Appeal from superior court, Clarke county; Hutchins, Judge.

Eustace W. Speer and A. M. Speer, for plaintiffs in error.

A. J. Cobb and E. T. Brown, for defendant in error.

Simmons, J. In the year 18S9 the legislature passed an act which was approved October 16th, "to authorize the mayor and council of the city of Athens to construct, pave, and otherwise improve sidewalks in said city, and to assess and collect the cost thereof out of the real estate abutting on the sidewalk so constructed, paved, or otherwise improved; to provide for the collection of such assessments; and for other purposes." This act gives the power to the mayor and council, "in their discretion, to construct sidewalks in said city, and pave the same; to pave sidewalks already constructed; to put down curbing, and to otherwise improve the sidewalks now constructed, or hereafter to be constructed." It gives them the power "to assess the cost of constructing, paving, and improving sidewalks * * * on the real estate abutting on the sidewalk constructed, paved, or otherwise improved." It also gives them power to assess the cost of keeping in repair the sidewalks of the city, and gives them power "to enforce the collection of the amount of any assessment under this act, by execution, to be issued by the clerk of council against the real estate so assessed, and against the owner thereof at the date of the ordinance making the assessment, * * * which executions may be levied by the chief of police * * * on such real estate; and, after advertising and other proceedings, as in cases of sale for taxes due the said city, the same may be sold at public outcry to the highest bidder." It also gives the defendant in execution the right "to file an affidavit denying the whole or any part of the amount for which the execution issued is due, and stating what amount he admits to be due, which amount so admitted to be due shall be paid or collected before the affidavit is received, and affidavits received for the balance; and all such affidavits so received shall be returned to the superior court of Clarke county, and shall there be tried, and the issue determined as in cases of illegality." Acts 1889, p. 869. Subsequent to the passage of this act the mayor and council of Athens adopted a general ordinance to carry it into effect, prescribing the mode and manner in which the sidewalks of Athens should be paved, and the material to be used in the pavement thereof. One section of this ordinance provides that each of the owners of property fronting on the sidewalks required to be paved is authorized to make the pavement in front of his property himself, under the supervision of the street commissioner, within 30 days after receiving notice that the sidewalk in front of his property is one of those ordered by council to be paved. In the event of the failure of the property owner to pave the same within the time prescribed, the city undertook to pave it. A bill of expenses or costs was to be served upon the property owner, and if not paid by him execution was to be issued as required by the act. Another ordinance was adopted by the mayor and council wherein they required the sidewalks on certain named streets to be paved. On these streets the plaintiffs in error owned property. They failed and refused to pave the sidewalks in front of their property in accordance with the ordinance of the city, whereupon some of the sidewalks were paved by the city authorities. The bill of expenses was made out in each case by the person having charge of the pavement for the city, and was reported to council, as required by the ordinance and a copy of the bill sent to each one of the plaintiffs in error whose sidewalk had been paved. Upon their refusal to pay the same, executions were about to be issued, whereupon the plaintiffs in error filed their petition to the superior court, two of them seeking to enjoin the collection of the bills, and one of them to enjoin the laying of a sidewalk in front of his property, on the ground that the act of the legislature under which the city council was proceeding is unconstitutional and void in the following particulars: (1) Because it was introduced and passed without the previous notice required by the constitution of the state; (2) because it conflicts with that, provision of the state constitution which requires uni formity in taxation; (3) because it is in conflict with that provision of the constitution of the state which requires taxation to be ad valorem; (4) because it is in conflict with that provision of the fourteenth amendment to the constitution of the United States which forbids any state from depriving any person of life, liberty, or property without due process of law; (5) because, were it even, as respondents claim it to be, a local assessment for a local object, no provision is made therein for determining the benefit received or the damage inflicted by its operation. Upon the hearing of the petition and the answer thereto the trial judge refused the injunction, to which the plaintiffs excepted.

1. As to the first exception, the constitution, in article 3, par. 16, (Code, §§ 5075,) declares: "No local or special bill shall be passed unless notice of the intention to apply therefor shall have been published in the locality where the matter or thing to be affected may be situated, which notice shall be given at least thirty days prior to the introduction of such bill into the general assembly, and in the manner to be prescribed by law. {The evidence of such notice having been published shall be exhibited in the general assembly before such act shall be passed." In accordance with this paragraph of the constitution, the legislature of 1878 passed an act prescribing how the notice should be published. This act prescribes that " the title of the bill shall be published once in the newspaper in which the sheriff's sales are advertised, and shall be posted at the door of the courthouse in the county or counties of the residence of the person or persons * * * to be affected thereby, or in which the locality or municipality is situated, thirty days before the introduction of such bill in the house of representatives; * * * and the production of the newspaper, dated thirty days prior to the introduction of such bill into the general assembly, containing the notice required by this section, and the certificate of the ordinary that the notice has been posted, shall be sufficient evidence that such notice has been given in accordance with the requirements of the constitution." Code, § 193a. It appears from the paragraph of the constitution and the act of the legislature just cited that the legislature itself is made the judge of the evidence as to whether the proper notice has been given or not before the introduction of the bill. It is proposed in this case to show by extrinsic evidence that the proper notice had not been given for a sufficient length of time before the bill was introduced into the legislature. We do not think that courts are authorized to receive such evidence, and upon it to decide whether or not the legislature, a co-ordinate branch of the government, has made an erroneous decision, and allowed a bill to be introduced without the notice required by the constitution and the law. The constitution requires the legislature to keep journals of its proceedings, and these journals are the only evidence which courts can receive in an attack of this kind upon the constitutionality of an act. Judge Cooley, in his work on Constitutional Limitations, (5th Ed.) 163, *135, says: "Each house keeps a jour-nal of Its proceedings, which is a public record, and of which the courts are at liberty to take judicial notice. ...