171 Ga. 40 | Ga. | 1930
The point first raised and most strongly insisted on in the brief and argument of attorneys for the plaintiff in error involves and makes necessary a consideration and construction of certain clauses in the ordinance of May, 1927, and an act of the General Assembly of August, 1927. It is declared in the ordinance: “With the exception of Lawton Avenue and Yine Street, as now laid out and established, the Company shall not be required to pay or contribute to the cost of any new street-paving construction
The brilliant and long-continued assaults made by attorneys for the plaintiff in error, directed against this particular point in the
It is conceded by the plaintiff in error that under the statute and ordinances the company has secured exemption from liability for costs of new street paving if placed on streets yet to be opened and on streets not yet paved. While it is intimated that the company has some track on “dirt” streets, no information is furnished as to the probable length of such line, and we have a right to presume that most of the trackage is located in business or prominent residential sections of the city where the streets are paved. The recognized financial situation of the company would seem to preclude the laying of additional lines along unpaved streets, and the city does not contend that it has any paving of old dirt streets or opening up of new streets on its schedule. It seems to us that repaving is new paving. The street itself may be old, but the paving is new, the material is new, the construction work is new, the assessments
The second of the chief contentions of the plaintiff in error is that the exemption from new street-paving construction costs now claimed by the Georgia Power Company was a concession or privilege granted by the City of Macon to the Macon Railway & Light Company, and that the benefits flowing from the franchise contract could reach the Georgia Power Company only through express grant of the City of Macon. As the city is before us as a result of its legal efforts to hold the Georgia Power Company, as such, liable for costs of street paving,, it ¿s seemingly maintaining a somewhat inconsistent attitude in its effort to bar the benefits on this ground. Conceding, however, that this may legally be done, we consider the point unavailing under the record in the ease. It is true that the exemption was originally granted to the Macon Railway & Light Company, but it 'also appears that under the ordinance of 1902, authorizing the consolidation of old street-railway com
It is insisted in the brief of plaintiff in error, that, as the charter amendments of 1927, cited above, provide that street-railway companies shall pay for the cost of paving, and the collection for the cost of paving shall be enforced under execution, any construction of the legislative act and the ordinance which would relieve the company from the cost of all paving would malee the language of the charter “absolutely foolish.” In the act of 1927, and in the ordinance of the City of Macon, appears the following: “Provided, that nothing herein contained shall authorize any assessment for new street-paving construction by the City of Macon against the Macon Railway & Light. Company.” Instead of raising any ambiguity, or making necessary a holding that these enactments contain “absolutely foolish” provisions, may we not apply the principle or doctrine of reconciliation and hold that the city and the General Assembly intended to release the Macon Railway & Light Co., its
Attacks are made on the constitutionality of act and ordinance providing for the exemption. The first is, that they are discriminatory and fail to provide impartial and complete protection for taxpayers generally and abutting-property owners liable under the paving assessment; and the second, that, as a result of such exemption and the casting of additional cost and tax burdens upon the taxpayers and property owners, there is a denial of due process of law and a violation of the 14th amendment of the constitution of the United States. Code, §§ 6358, 6359. The act and the ordinance in question are not unconstitutional for the reasons urged. It is hardly conceivable that the City of Macon, the passer and promoter of laws for the grant of this exemption, ¿s in position to set up and consistently insist that it is being denied due process of law. No question is raised as to the legal right of the city to pave in its discretion; no attack is made upon the sufficiency of the notice, or the adequacy of the methods through which it is proceeding to the carrying out of its plans; the right of appeal is preserved; and the only question is as to the legality of an exemption. Wherein lies the lack of due process of law in relation to the City of Macon ? It has no legal right to take up the contest in behalf of taxpayers generally and paving debtors; they are acquiescing in the taking of their property, and this is permissible even where there is a lack of due process of law. The City of Macon has had the “due-processing” in charge. Those against whom the processes were issued seem to acknowledge, at least by silence, that they were “due;” may the city now come before the courts and bewail the fact that it has not “duly-processed” itself, especially when it is not shown that the city, as a political subdivision of the State, has
As to another feature of the case. “The legislature may authorize a municipal corporation to exempt certain property from municipal taxation, either general or special, or annul an assessment.” 12 C. J. 1006, § 627. This general rule is not without exception in Georgia; it is subject to the constitutional requirement of uniformity in taxation. Paving assessments, it has been repeatedly held, are not taxes or taxation. It is therefore within the legislative power to authorize exemptions from such assessments. This court held in City of Augusta v. Augusta-Aiken Ry Co., 150 Ga. 533 (104 S. E. 503): “The contract to exempt the street-railway company from street-pavement assessments, being under legislative sanction, was valid, and was not illegal, as contended, on the ground that it was an unauthorized exemption from payment of taxes, or a surrender of the city’s police power.” Conceding that under proper conditions a municipality may attack as unconstitutional a contract or ordinance entered into or. enacted by it, it may not do so in cases where a valuable consideration moves to the enactment thereof. As supporting this opinion, attention is called to the following: “Where corporations have been organized which proceed to do business under the provisions of a statute, and receive benefits under it, they cannot be heard to allege that such a statute is unconstitutional.” (Citing 193 U. S. 17; 2 C. J. 770.) The foregoing rules applicable to private corporations are also applied to municipal corporations, States, and Federal government. 12 C. J. 771. “If the city accepted the deed on the consideration that it should carry out this agreement, and adopted the favorable report of its committee upon the petition with such condition therein,'- it became a contract; and the city could not thereafter legally make an assessment against the plaintiff’s lot for the cost of laying the pavement. Jenkins County v. Dickey, 139 Ga. 91 (76 S. E. 856).” City of Atlanta v. Akers, 145 Ga. 680 (89 S. E. 764). Basing action upon recommendation of its own committee, recognizing the matters and things set forth in the report of such committee as furnishing a sufficient and valuable consideration for
Judgment affirmed.