140 Ga. 633 | Ga. | 1913
The act of the legislature of 1910 (Acts 1910, pp. 576 et seq.) authorized the City of Dalton to have certain of its streets graded, paved, and otherwise improved, and to assess one third of the cost of such improvements against each owner of abutting property. The act also provided how the cost of such improvement could be enforced by execution. By an act of the legislature approved July 19, 1911 (Acts 1911, pp. 1097 et seq.), the right to file an affidavit of illegality to such executions issued under the act of 1910 was provided for. During the latter part of the year 1910, and the early part of the year 1911, certain streets of the City of Dalton were improved in pursuance of the act of 1910; and assessment rolls were made up by the city council, apportioning the cost of the street work between the property owners. The plaintiff in error, F. T. Hardwick, declined to pay his assessment, and execution was issued against him in conformity to the act of 1910, and was levied by the city marshal on certain lots of land located on one of the streets improved. To this" levy the plaintiff filed an
There are numerous grounds of the demurrer, but we shall consider only the general ground, which we think was sufficient to authorize the court below to sustain it and dismiss the affidavit of illegality. The execution on its face shows that the amount of the plaintiff’s assessment for grading, paving, constructing, and otherwise improving Crawford street, on which plaintiff had abutting property, was $731.04. As to this assessment for the Crawford street improvement there are no allegations in the affidavit of illegality which would invalidate the assessment or the execution. It is alleged in the affidavit that “no proper assessment of the costs of improving Hamilton street (on which plaintiff also has property) has been made by the city council of Dalton,” etc., but no such allegation is made with reference to Crawford street. There is a general allegation that the execution is proceeding illegally because “said assessment includes the cost of curbing in front of petitioner’s property, when the same was already provided with the same or similar curbing for which a charge is now made.” This allegation is broad enough to include “the cost of curbing” Crawford street, but it does not include paving, constructing, and otherwise improving Crawford street; and therefore the necessary implication is that some amount is due for the work done on Crawford street other than curbing. This being true, the requirement prescribed by the act of 1911 would apply. That act provides: “Should any owners of abutting property or public-service corporation desire to contest the amount of their assessment or the legality of any proceeding growing out of or connected with the paving, grading, constructing, or otherwise improving of said streets, or any portion thereof, they’may do so by filing with the levying officer an affidavit of illegality and stating therein the cause of such illegality, and the amount admitted to be due, which amount so admitted to be due shall be paid to the levying officer before the affidavit shall be received; and the affidavit shall be returned to the superior court of Whitfield county, there to be tried and the issue determined as in cases of illegality,” etc. No 'amount was paid, or tendered, by the plaintiff in this case as being due. It is alleged
Judgment affirmed.