168 Ga. 653 | Ga. | 1929
Lead Opinion
(After stating the foregoing facts.) The petition attacks the charter of the City of Manchester (Ga. L. 1909, p. 1071), and the ordinances passed in pursuance thereof, as being unconstitutional and void as not affording due process of law, and upon various other grounds; but under the view we take of this case it is not-necessary to pass upon the constitutional questions raised, for the reason that the record shows that the petition in the present case was not filed and the constitutional questions raised until after the paving of the streets and the other improvements had been completed. The court below declined to enjoin the enforcement of the assessment and fi. fas. and sale of plaintiffs’ property, and under the present state of the record we are of the opinion that the court below properly so held. This court has decided upon numerous occasions that where the abutting-property owner stands by and 'sees street improvements made by a municipality, and does not interpose any objection thereto while the work is in progress and before it is completed, such property owner is estopped from attacking the proceeding to enforce the payment of the assessment against such complainant. In Raines v. Clay, 161 Ga. 574, 576 (131 S. E. 499), Mr. Presiding Justice Beck said: “In the petition for injunction Clay attacks the act of August 19, 1918, and the ordinance passed by the city council in October, 1920, as unconstitutional, in that they do not afford due process of law guaranteed by the State and Federal constitutions. After a hearing the court granted an interlocutory injunction, and the defendants excepted. We are of the opinion that the court erred in granting this injunction. Under the pleadings and evidence it would seem that the plaintiff is estopped from asserting that he is not liable for his proportion of the assessment made for the cost of the paving of Main Street, upon which he was an owner of abutting property. He stood by and saw the improvement made, and must have known that it was being made at great expense to the city — an improve-
As to the constitutional questions raised in the present case, see also City of Macon v. Anderson, 155 Ga. 607, 616 (117 S. E. 753); City of Waycross v. Cowart, 164 Ga. 721 (139 S. E. 521), and cit.; Harris v. Valdosta, 156 Ga. 490 (119 S. E. 625, 30 A. L. R. 145); Walthour v. Atlanta, 157 Ga. 24 (120 S. E. 613); Vestel v. Edwards, 143 Ga. 368 (85 S. E. 187); McGregor v. Hogan, 153 Ga. 473 (112 S. E. 471), which was affirmed by the U. S. Supreme Court. 263 U. S. 234 (44 Sup. Ct. 50).
Judgment affirmed.
Concurrence Opinion
I concur in the judgment of affirmance, but not in the ruling that petitioners are 'estopped because the petition was not filed and the constitutional questions raised until after the paving was completed. If the law, whether statutory or municipal, is unconstitutional and void, the improvement is made without any legal authority. In such circumstances the property owner is not estopped from making his defense whenever the municipality undertakes to enforce the assessment. I adhere to the views expressed in my dissent in the case of City of Bainbridge v. Jester, 157 Ga. 505 (supra). -According to numerous authorities cited in 47 A. L. R. 250, where the assessment or contract contemplating the improvement is wholly void, payment or tender thereof of a sum representing the benefit derived is not required to secure relief by injunction.