168 Ga. 616 | Ga. | 1929
Lead Opinion
(After stating the foregoing facts.)
Was the contract for the paving of these sidewalks a valid one? Section 6 of the act of August 10, 1920, amending the charter of the City of Bainbridge (Acts 1920, pp. 741, 743), provides that, thirty days after the date of the passage of an ordinance apportioning and levying assessments for street improvements, the Mayor and Aldermen of the City of Bainbridge shall by resolution provide for the issuance of bonds for the amount of such assessments, and in the manner more fully prescribed in said section. It contains this further provision: “Said bonds shall be sold at not less than par, and the proceeds thereof applied to the payment of the contract price and other expenses, by the said mayor and aldermen, or such bonds in the amount that shall be necessary for that purpose may be turned over and delivered to the contractor at par value in payment of the amount due him on his contract, and the portion thereof which shall be necessary to pay other expenses incident to’and incurred in providing for said improvements shall be sold or otherwise disposed of as the mayor and aldermen shall direct.” This section prohibited the sale of these bonds at less than par for the purpose of raising funds for the payment of these improvements at the contract price, and prohibited the delivery to the contractor of bonds at less than par in payment of the amount due it on its contract. Does the contract between the
In construing a like provision of the drainage law, we held that drainage bonds could not be sold for less than par, and that the par value of an interest-bearing bond on the date of its issuance is the principal thereof, and on any date thereafter such par value is the sum of the principal and the accrued interest. Board of Drainage Comm’rs v. Arnold, 156 Ga. 733 (120 S. E. 310). Furthermore, before entering into the contract for the paving of these sidewalks, the city entered into an arrangement with certain banks, by which the city was to deliver these bonds to the contractor for these improvements, and the banks were to take them from the contractor at a price less than their face value. So we are of the
As we hold that the contract for the paving of these sidewalks is illegal to the above extent, what is the effect of the illegality of the contract on the power to make and collect assessments on the abutters’ property? In Sanders v. Gainesville, 141 Ga. 441 (81 S. E. 215), this court held that “If a contract for the construction of a public improvement has been let, and an assessment levied to pay such contract price, the validity of such contract is essential to the validity of the assessment; since otherwise the assessment would be levied to pay a claim not legally due against the city.” It may be said that this ruling was based upon the -ground that a contrary holding would make an assessment leviable to pay a claim not legally due by the city. In the decision in that case it .was said: “No lien can be fixed, in invitum, against abutting property to pay an illegal contract made by a city in the construction of a public improvement. Schwiesau v. Mahon, 110 Cal. 543 (42 Pac. 1065).” In that case the city'was without jurisdiction or power to make the contract on which the assessments were based. In Montgomery v. Atlanta, 162 Ga. 534 (134 S. E. 152, 47 A. L. R. 233), we dealt with the effect of the illegality of the contract upon assessments against owners of abutting property for street improvements, where the city had jurisdiction and power to make the contract, but exercised it in an illegal manner. In that case we held that if there was no valid contract for making the street improvements, due to irregularity and illegality in the exercise of the power conferred upon the city, no assessment could have been levied and enforced against the owners of abutting property, if they had acted promptly in attacking the illegal contract. In City of Bainbridge v. Jester, 157 Ga. 505 (121 S. E. 798, 33 A. L. R. 1406), this question again came before this court, and, without passing upon the legality of the contract involved in that case and in the present case, we held that the property owners were estopped from attacking the validity of the assessment upon, the ground that the contract was illegal, the illegality of the con
Our holding that there is no estoppel if the defect goes to the jurisdiction or power of the municipality, and is not a mere irregularity in the proceeding, but that there is such estoppel where the illegality is not due to lack of jurisdiction or power, but amounts only to an illegal exercise of jurisdiction or power, seems to be supported by the authority and weight of decisions in -other jurisdictions. 4 Dill. Mun. Cor. (5th ed.) § 1455. The better view also seems to be that where such estoppel is operative, such estoppel will be enforced at law or in summary proceedings, as well as where parties are seeking affirmative relief in equity against the enforcement of assessments for street improvements. 2 Paige & Jones on Taxation by Assessment, § 1025. A mere protest against street improvements, or mere threat to take legal proceedings to prevent such improvements, is not sufficient to defeat such estoppel. Holt v. Parsons, 118 Ga. 895 (45 S. E. 690); Raines v. Clay, 161 Ga. 574, 577 (131 S. E. 499). We hold in this case that the con
The headnotes following headnote 2 do not require elaboration or discussion.
Judgment affirmed.
Dissenting Opinion
who dissents for the reasons stated in City of Bainbridge v. Jester, 157 Ga. at p. 515, and in Floyd v. City of Bainbridge, 164 Ga. 316.