47 Ga. App. 584 | Ga. Ct. App. | 1933
The charter of the City of Milledgeville as amended authorizes the city to pave its streets in the manner pointed out therein. Ga. L. 1900, p. 345, et seq., as amended (Ga. L. 1925, p. 1199). Sections 3 and 5 thereof authorize the mayor and aldermen of said city to grade and pave its streets by passing an ordinance for that purpose, in which they shall prescribe the location, character, and manner of the improvement desired. The original charter of said city requires that an ordinance shall be read three times' in council before its passage. Sections 4 and 6 of said amended charter provide that said .paving ordinance shall be passed “under the rules providing for the passage of ordinances in said city, and when a copy of said resolution or ordinance shall have been posted at some conspicuous place frequented by the public in the city hall for seven days, the resolution or ordinance shall become final and binding, unless, prior to the expiration of the seven days notice by posting in the city hall a majority of the owners of land abutting on the street . . to be improved” shall file with the clerk and treasurer of the city their written protest against said “improvement, stating their objections thereto.” By section 8 of the charter amendment it is provided that at the next regular meeting of council after their filing, such objections shall be inquired into by the mayor and aldermen, and should they overrule them they shall proceed to make the improvement. By section 9 thereof’it is provided that when the ordinance shall become final and binding the mayor and aldermen shall proceed with the improvement in accordance therewith, but that no contract for the work shall be let “until
The defendant in fi. fa. in this case owned property abutting on a street improved in the City of Milledgeville, and his property was assessed for his portion of the cost of the improvement. The defendant in fi. fa. did not pay his proportionate share of the cost of such improvement, and execution was issued against him. To this execution he interposed his affidavit of illegality, in which he set up that the fi. fa. was proceeding against him illegally. He offered, an,
The issues and questions raised in this case as to the time of the filing of the traverse to the affidavit of illegality, as to the reading three times of the ordinance providing for the paving, as to the exclusion of certain evidence, and as to the disqualification of one of the jurors in the case, are controlled by the decision in the case of Jeanes v. Milledgeville, 45 Ga. App. 755 (165 S. E. 900), where substantially the same questions and issues were raised as in the instant case and were decided adversely to the plaintiff in fi. fa. This leaves us to determine whether or not the court erred in re
In order for the ordinance providing for said paving to become final and binding, it was necessary for a copy thereof to have been “posted at some conspicuous place frequented by the public in the city-hall for seven days.” This posting was necessary, as required by the charter, in order that, if a majority of the owners of land abutting on the street to be paved desired to file objections with the mayor and aldermen, they could do so. The defendant in fi. fa. sets up that the ordinance in question was not so posted, and was therefore invalid. This would have been a good attack upon the validity of this ordinance had it been made at the proper time. However, the defendant in fi. fa. is now precluded from making this attack by his failure to make the same at the proper time. Section 9 of the charter provides for an advertisement giving notice of the improvement to be made. After the publication of this notice for the required time, the defendant in fi. fa. had fifteen days in which to commence proceedings to prevent the improvement and assessment provided for by said ordinance, and when he failed to do so he became concluded and barred from attacking the ordinance because of the failure of the mayor and aldermen to post a copy of the same as required by section 6 of the charter amendment, and “ shall be conclusively presumed to have accepted the terms of the resolution or ordinance under which said improvements are to be made.” City of Marietta v. Dobbins, 150 Ga. 422 (104 S. E. 444). In Montgomery v. Atlanta, 162 Ga. 534 (134 S. E. 152, 47 A. L. R. 233), it was held that “Before the City of Atlanta can pass an ordinance and make a valid contract for the paving or repaving of a street, under the amendment to its charter by the act of August 19, 1919 (Georgia L. 1919, p. 821), and before it can pass a valid ordinance levying an assessment against owners of land abutting on such street or portion of street for their shares of the cost of such street improvement, it must be petitioned in writing for such street improvement by the owners of the majority of the frontage of land abutting on said street or portion of said street. This fact is jurisdictional; and the non-existence thereof renders an ordinance and contract made for such purpose invalid. (a) The owners of abutting property may be precluded from attacking the validity of such ordinance and contract on this ground, by their
Where the amendment to the charter of Milledgeville provided that no contract for paving "shall be entered into until after notice has been published in a newspaper having general circulation in the City of Milledgeville once a week for two weeks, in which notice a general description of the improvement to be made shall be given, the time and place that bids shall be received, the form of bids and a statement of where the plans and specifications may be inspected shall be contained in said notice,” it will be presumed that the municipal authorities duly complied with the terms of this charter requirement and gave such notice, in the absence of any allegation to the contrary.
Furthermore, the defendant in fi. fa. does not allege that had the mayor and aldermen of said city posted a copy of said ordinance authorizing the paving of the street in question at some conspicuous place frequented by the public in the city-hall for seven days, a
It appears from the allegations of the amendment to the affidavit of illegality that the plan and plat of the work to be done on this improvement was filed in the office of the city clerk, and it is not alleged therein that the plat did not contain an accurate measurement and plan of the work to be done, showing the number of feet and fractions thereof of frontage, with the location and measurement of each abutting property, or contained an inaccurate description and measurement of the abutting property of the defendant in fi. fa. The charter provides that after such plat is filed the owner of any abutting land may within five days therefrom make written objection thereto, and when such objections are made, the mayor and aldermen of the city shall set a time for hearing such objections. It does not appear from this amendment that any written objection to such plan and plat was ever made by the defendant in fi. fa. It further appears from the amendment that there was an assessment roll, and it does not appear that this assessment roll was inaccurate or did not set forth the correct frontage of the abutting land, or that the amount assessed therein against the defendant in fi. fa. was not correct.
We do not think that the defendant in fi. fa. has alleged any facts showing that he was harmed in any way by the passage of such resolution after the work had been completed.
This court is of the opinion that the portions of the amendment offered by the defendant in fi. fa. to his affidavit of illegality, which were disallowed by the trial judge, did not sufficiently set forth any matters of defense to the execution, and that the trial judge properly disallowed them.
Judgment affirmed on the main bill of exceptions; cross-bill of exceptions dismissed.