Opinion
17762.
SUBMITTED FEBRUARY 11, 1952.
DECIDED MARCH 10, 1952. REHEARING DENIED MARCH 25, 1952.
Petition for injunction. Before Judge Willingham. Monroe Superior Court. November 20, 1951.
A. M. Zellner and Hugh Sosebee, for plaintiffs.
Williams Freeman, for defendants.
The allegations of the petition, seeking to enjoin municipal authorities from paving a city street, failed to set forth a cause of action, and the trial court did not err in sustaining a general demurrer thereto.
No. 17762. SUBMITTED FEBRUARY 11, 1952 — DECIDED MARCH 10, 1952 — REHEARING DENIED MARCH 25, 1952.
On July 3, 1951, Frank Harp and others, as citizens and taxpayers, filed in Monroe Superior Court, against the City of Forsyth and C. E. Nash, a petition which alleged substantially the following: On May 18, 1951, the city, in virtue of section 66 of the City Code, passed an ordinance authorizing the paving and the laying of a raised-edge curb on Chambers Street. Under the ordinance each of the petitioners is required to pay one-third of the cost and the city the other third. The following day the city and Nash entered into a paving contract pursuant to the ordinance. On May 21 and 22, each of the petitioners was served with a certified copy of the ordinance together with an assessment based on a stated number of feet "of asphalt paving" at 50 cents per foot, and a corresponding number of feet "of curb" at $1.20 per foot. Section 66 of the City Code and the ordinance are void because they do not provide for notice or a hearing, as to the reasonableness or unreasonableness of the assessment, and as to whether the paving is necessary, and are therefore violative of the due-process clauses of the State and United States Constitutions. No indemnifying bond was taken from Nash as required by law for contracts for public works. He is insolvent and is incurring debts for labor and material, for which the city is liable. The contract is void because of the failure to require bond, and because it is too vague and indefinite to be capable of enforcement. The paving will be done immediately unless enjoined. None of the other streets referred to in the contract was paved with a raised curbing, even though some of them are very heavily traveled, and no benefit will be received by the petitioners from the raised edge. The reason given by the city for installing a raised-edge curbing on Chambers Street is for the purpose of controlling parking by people who work at a mill on a nearby street, and the raised edge is necessary to keep the paving from wearing out because of cars and trucks running on and off the pavement to park, and parking on the shoulder of the pavement. The city by the assessment is attempting to require the petitioners as owners of abutting property to bear the expense for damage that may be done to the street by public carriers and members of the public. If the paving is done, it will be sufficient for the ordinary needs of travel over the street, and the additional cost in laying the raised-edge curb should not be assessed against the petitioners. By amendment it was alleged that, since the filing of the suit and just recently, the defendants have done some paving on Chambers Street, but that the paving consisted of asphalt mixture of not over one-half inch thickness, and that this is rough and the paving is too thin to be serviceable, and is totally unfit and valueless for ordinary purposes and uses of the street. The petitioners prayed, among other things: that the defendants be enjoined from paving and laying a raised-edge curb on the designated portion of Chambers Street; that the city be enjoined from paying Nash for paving or laying the raised curb; that the city be enjoined from issuing an execution against the petitioners, and from collecting from them for the paving or curbing.
The exception is to an order sustaining the defendant's general demurrer, and dismissing the petition as amended.
Section 66 of the City Code of Forsyth, authorizing the paving of streets, referred to in the statement of facts, is a codification of section 3 of the act (Ga. L. 1920, p. 990), being an amendment to the city charter. Section 4 of the above act, after providing for the collection of any assessment, declares: "The owner of said real estate shall have the right to file his affidavit denying the whole or any part of the amount for which the execution was issued and stating the amount that he admits due, which amount admitted to be due, together with all costs, shall be paid before the affidavit is received."
Where an act of the legislature authorizes the paving of streets in a city and the collection of a special assessment against abutting land by execution, and provides that the owners of such land may file an affidavit of illegality and may contest the whole or any part of the amount so claimed, the levy of the assessment is not void on the ground that the owner is not afforded due process of law. Sanders v. City of Gainesville, 141 Ga. 441 (2) ( 81 S.E. 215); Horkan v. City of Moultrie, 154 Ga. 444 (2) ( 114 S.E. 888); Faver v. City of Washington, 159 Ga. 568 (2) ( 126 S.E. 464); City of Waycross v. Cowart, 164 Ga. 721 (1) ( 139 S.E. 521). Applying the foregoing principle, the act of 1920 and the ordinance passed in pursuance thereof, were not unconstitutional as violative of the due-process clauses of the State and United States Constitutions.
Nor is the act complained of illegal and unjust, as contended, in that the municipal authorities are attempting to make the owners of the abutting property liable for two-thirds of the total cost of the improvement without requiring the city and the general public to pay for such improvement in proportion to the benefit derived therefrom. Walthour v. City of Atlanta, 157 Ga. 24 (1c) ( 120 S.E. 613). A different ruling is not required by Mayor c. of Savannah v. Knight, 172 Ga. 371 ( 157 S.E. 309), which involved the repaving of a street that was sufficient for ordinary traffic.
Another insistence is that the assessments are illegal because the contract is too indefinite, and the city did not require a bond from Nash as required by Code § 23-1705. The contract providing for the paving of various streets, including the one in question, was entered into on May 19, 1951, and each of the petitioners received actual notice thereof. The suit was not filed until July 3, 1951. The petition alleges that none of the other streets referred to in the contract was paved with a raised curbing. Construed most strongly against the pleader, as a petition must be on general demurrer, the petitioners, before making any objection, stood by until other streets included in the contract were paved. It follows that, if the assessments were illegal merely on account of alleged indefiniteness, or because of the failure of the municipal authorities to require a bond, the petitioners could not stand by and see large sums of money expended under the contract in the completion of the work on adjoining streets without objecting thereto, and acquire the benefits thereof, and then come into a court of equity seeking an injunction on the alleged ground that the entire contract was illegal. Mayor c. of Macon v. Huff, 60 Ga. 221 (3); Montgomery v. City of Atlanta, 162 Ga. 534 (4) ( 134 S.E. 152); City of Waycross v. Cowart, 164 Ga. 721 (3), supra; Wall v. Mayor c. of Milledgeville, 197 Ga. 165 (1) ( 28 S.E.2d 131).
Finally, it was alleged in an amendment that just recently the defendants have done some paving on Chambers Street, but that this is rough and the paving is too thin to be serviceable. Properly construed, this is not an averment that the paving had been completed. There was no allegation that the cost of the improvement was excessive.
Accordingly, the allegations of the petition as amended failed to set forth a cause of action for any of the relief sought, and the trial court did not err in sustaining a general demurrer thereto.
Judgment affirmed. All the Justices concur.