Draper v. City of Atlanta, 126 Ga. 649

Draper v. City of Atlanta

126 Ga. 649 | Ga. | 1906

Evans, J.

(After stating the facts.) 1. The City of Atlanta has power and authority to renew, by the use of any material that may be decided on, any pavement on its streets, whenever in the judgment of the mayor and general council the paving originally laid on a street or portion of a street is worn out to that extent that it is no longer useful as a good pavement. Acts of 1890-91, p. 229; Acts of 1897, p. 145; Regenstein v. City of Atlanta, 98 Ga. 167; Burckhardt v. City of Atlanta, 103 Ga. 302. In order for the city to exercise this authority it is necessary for the owners of at least •one half of the property along the portion of the street to be paved to petition the mayor and council to make the improvement, which petition must have the approval of the city engineer and the commissioner of public works, who shall furnish a statement of the estimated cost. Upon the filing of the application the mayor and Council must cause a notice of the presentation of the petition, and of the time and place when the same will come up for consideration and action, to be published in one of the daily papers of the city at least ten days before any ordinance based on the petition shall be Ipassed. At this hearing opportunity is to be given to all persons interested to advocate or oppose the granting of the petition. In all cases where the petition appears to have been signed by the owners of a sufficient frontage to authorize the passage of the ordinance, and the mayor and council shall so determine (which determination shall be evidenced by the passage of an ordinance), and the notice has been published as provided for and the work executed under the ordinance, the determination of the mayor and •council as to the sufficiency of the petition is “final as to the rights and interests of all persons or corporations interested who have not prevented the execution of the work by an injunction or •other appropriate legal or equitable remedy before it is commenced.” Acts of 1897, p. 146.

The plaintiffs in error do not contend that the prerequisites of the ordinance, relating to a petition by a majority in frontage of the abutting-property owners and its approval by the city engineer and commissioner of public works, were not complied with, but in their affidavit of illegality they contend that the ordinance providing for the street improvement, and that making the assessment upon the abutting-property owners, are void because “no notice of said ordinances or the assessment thereunder was given or served *653upon [them] as required by law.” This does not raise the issue-that no notice of the presentation of the petition and of the time- and place of the hearing thereon was duly published in one of the daily papers of the city at least ten days before the passage of the ordinances based on the petition. Personal notice is not required to be given to or served upon an abutting-property owner, of either the passage of the ordinance or the assessment thereunder. Treating, then, this ground of the illegality as insufficient to raise any issue concerning the due publication of the notice required by the-act of 1897, it is not alleged in any of the grounds of the illegality that the maj'or and council were without jurisdiction to pass the ordinances and make the assessment thereunder.

When it appears that the city has jurisdiction of the subject-matter, that tlm pavement has been laid, and that execution has been issued pursuant to law, it is too late for an abutting-property owner to contest the discretionary powers of the municipal authorities in deciding the propriety of substituting a new for an old pavement. In cases where there is jurisdiction, the property owner will be estopped from questioning the validity of the proceedings of the mayor and council, if he stands by and permits the work to be done without interposing any objection. Elliott on Roads & Streets, §589. The act of 1897 gives the abutting-land owner an opportunity to appear before council and oppose the contemplated improvement ; and if he appears and the municipal decision is adverse to his contention that there is no necessity for the improvement, he may then apply to the courts to restrain further municipal action, provided he alleges and shows fraud or corruption on the part of the city authorities, or that the discretion vested in them is being manifestly abused to his oppression. Hudspeth v. Hall, 113 Ga. 7.

2. The plaintiffs in error were not entitled to set off against the execution issued to collect the paving assessment any counter-claim which they may have against the city. They had the right, by affidavit of illegality, to deny that the whole or any part of the amount for which the execution issued was due (Acts of 1897, p. 140), but they could not defeat it or delay the city in its collection by setting up a demand which they have against the municipality.

Judgment affirmed.

All the Justices concur.