Opinion
14716.
DECEMBER 1, 1943.
Petition for injunction. Before Judge Camp. Baldwin superior court. August 26, 1943.
J. T. Terry, for plaintiff.
C. A. Giles and Edward R. Hines, for defendant.
1. Where a city has jurisdiction and power to pave its streets and intersections and makes a contract for such work, and assessments are made against abutting-property owners for the cost of the work done under the contract, all the provisions and requirements of the special act authorizing such paving and assessments having been complied with by the city, an abutting-property owner, who has been given fair opportunity to object to the street improvement and assessment against his property, but who stands by and sees the street improvements completed without entering any objection thereto, is not entitled, by reason of his laches, to relief in equity by injunction to prevent the collection of a paving-assessment execution. Raines v. Clay, 161 Ga. 574, 577 ( 131 S.E. 499); Avery v. Atlanta, 163 Ga. 591 ( 136 S.E. 789); Mayor c. of Montezuma v. Brown, 168 Ga. 1, 14 ( 147 S.E. 80); Bower v. Bainbridge, 168 Ga. 616, 624 ( 148 S.E. 517); Bass v. Mayor c. of Milledgeville, 180 Ga. 156 ( 178 S.E. 529); Kinney v. Mayor c. of Milledgeville, 185 Ga. 866 ( 196 S.E. 467).
2. Where in an equitable petition to enjoin the enforcement of a paving-assessment execution, it is shown that an affidavit of illegality had been interposed to such enforcement, but without disclosing the grounds upon which the affidavit of illegality was based, and the petition sets forth various grounds why the assessment execution is invalid, and an injunction is prayed, the petitioner must be held to have made an election substituting the equitable petition for the affidavit of illegality previously interposed; and the pendency of the affidavit of illegality does not affect the issue of laches. Bass v. Mayor c. of Milledgeville, supra.
3. The allegations and prayers of the petition, which sought to enjoin enforcement of an execution issued by the defendant city against the petitioner's property for the collection of a paving assessment, do not show that the city was without jurisdiction and power to enter into the paving contract or that proper notice was not afforded the petitioner to object to the paving and assessments, but show that the petitioner stood by and made no complaint until the work had been completed and until bonds, to be paid off from the collection of assessments, had been sold. Though an affidavit of illegality was interposed to the enforcement of an assessment execution against the petitioner's property. and was dismissed, and a motion to set aside the judgment of dismissal was made on undisclosed grounds and is alleged to be still pending, the petitioner, by reason of his equitable petition, must be held to have substituted it for the proceeding at law. Under the above-cited authorities the petition was subject to the general demurrer on the ground of laches.
4. The contention that the paving execution was void, because at the time of its issuance the charter of the City of Milledgeville (Ga. L. 1900, p. 345) had expired, is without merit, in that the act granting the charter contains no provision for expiration. The Code, § 22-302. which provides for the chartering of certain corporations for a period not exceeding twenty years, is not applicable to municipal corporations.
Judgment affirmed. All the Justices concur.
No. 14716. DECEMBER 1, 1943.
STATEMENT OF FACTS BY DUCKWORTH, JUSTICE.
Mrs. Ophelia Wall filed an equitable petition to enjoin the mayor and aldermen of the City of Milledgeville and the marshal of said city from enforcing the collection of a fi. fa., which had been levied on described property of the petitioner by virtue of a certain paving bond issued by the city under authority of the acts of 1925 and 1926 (Ga. L. 1925, p. 1199; Ga. L. 1926, Ex. Sess., p. 138), amending the charter of the city; and to enjoin a sale of the property as advertised by the marshal, pending the determination of a "certain motion in arrest of judgment and to set aside judgment" filed after the court had dismissed an affidavit of illegality of the petitioner, the grounds of which are not made to appear by allegations or by exhibits attached to the petition. The petition does not allege that the city did not take all necessary steps required by law in the procedure to pave the streets and intersections, including portions on which the petitioner's property abutted, but sets up that the city charter had expired; that the cost of paving a street intersection was assessed against her contrary to the provisions of the act of 1925, supra, the amount being unknown to her; that the paving was unnecessary; that the cost was greatly in excess of any benefit to her property, being in excess of 40 per cent. of the market value thereof, and was confiscatory and in violation of the provisions of the State and Federal constitutions (the provisions violated not being specified); and that the execution was approximately double the contract cost of the paving. The petition showed that the fi. fa. in question was issued on January 30, 1929, after an assessment which became due on August 4, 1928 had been made; that the paving project had been completed, and a bond, secured by the assessment against the petitioner's property, had been sold and was outstanding; that levy had been made; that an affidavit of illegality had been filed by the petitioner on December 6, 1932; and that a hearing was had on December 30, 1935, resulting in dismissal of the illegality, after which a "certain motion in arrest of judgment and to set aside judgment" had been filed by the petitioner. The petition was not filed until January 3, 1936, more than eight years after the assessment was made.
The defendants filed general and special demurrers to the petition, on the ground, among others, that the allegations showed that the petitioner was not entitled to any relief by reason of her laches in standing by and making no objections until long after the completion of the improvements for which the assessment was made against her property. The court sustained the general demurrer and dismissed the action, and the exception here is to that judgment.