136 Ga. 398 | Ga. | 1911
Lanham & Sons Company and Bosworth each filed an equitable petition against the City of Rome, seeking to enjoin against executions which had been issued against them 'and their lots respectively on account of a street improvement. In each case the injunction was refused, and exception was taken. The cases were argued together in this court.
The grounds of attack by the plaintiffs may be summarized under the following general heads: (1) That the act of the legislature under which the executions were issued' was unconstitutional on account of defects in'the record as to the method of its passage. (2) That the original act, as amended, was in violation of the fourteenth amendment of the constitution of the United States. (3) That the original and amended act were repealed by the subsequent act creating a new charter for the City of Rome. (4) That there was a failure to comply with the act in regard to the methqds of procedure, both before and after the work was done. (5) That certain items included in the assessments were improper.
By the act of August 22, 1907 (Acts 1907, p. 897), the charter of the City of Rome was amended, and, among other things, provision was made in regard to grading, paving, and macadamizing the streets. By the eighth section the board of public works was directed to cause a survey to be made of the streets, sewerage,.and waterworks system, and to proceed as in the act set forth. By the ninth section an assessment of one third of the cost of paving or macadamizing such a street was authorized to be made against the owners of abutting property, which should become a ljen on such property, “to be enforced by execution issued as provided for collecting other city taxes.” By the act of August 11, 1908 (Acts 1908, p. 904), the charter of the City of Rome was again amended. It was provided, that, upon the completion of one or more sections of pavement, between intersecting streets, the board of public works should ascertain the proportionate cost chargeable to owners of abutting property, and certify this to the mayor and city council; that the latter should make an examination, and if the action were found correct, they should approve it, and cause the clerk to give written notice of the result to such owners of abutting property; that the amount so assessed should become immediately due and payable; that a copy of the notice should be served on the owner or occupant; and that the city should proceed immediately to collect
The objections made to the passage of the acts involved are concluded by the decisions in De Loach v. Newton, 134 Ga. 739 (68 S. E. 708), and Atlantic Coast Line R. Co. v. State, 135 Ga. 545 (69 S. E. 725).
The -next question which arises is whether the act of 1907 '(as amended by that of 1908) and the act of 1909 were void on the ground that they afforded no due process of law by which the owner of property abutting 'on a paved street might contest the amount and legality of the assessment. On behalf of the plaintiffs in
Counsel for plaintiff in error cited, in regard to what is known as the front-foot rule of assessment, the case of Norwood v. Baker, 172 U. S. 269 (19 Sup. Ct. 187, 43 L. ed. 443). That decision has been discussed by the Supreme Court of the United States in several other later cases. See French v. Barber Asphalt Paving Company, 181 U. S. 324 (21 Sup. Ct. 625, 45 L. ed. 879); Tonawanda v. Lyon, 181 U. S. 389 (21 Sup. Ct. 609, 45 L. ed. 908); Webster v. Fargo, 181 U. S. 394 (21 Sup. Ct. 623, 45 L. ed. 912); Cass Farm Co. v. Detroit, 181 U. S. 396 (21 Sup. Ct. 644, 45 L. ed. 914); Detroit v. Parker, 181 U. S. 399 (21 Sup. Ct. 624, 45 L. ed. 917); Wormley v. District of Columbia, 181 U. S. 402 (21 Sup. Ct. 609, 45 L. ed. 921); Shumate v. Heman, 181 U. S. 402 (21 Sup. Ct. 645, 45 L. ed. 922); Farrell v. West Chicago Park Commissioners, 181 U. S. 404 (21 Sup. Ct. 609, 45 L. ed. 924). It would not be profitable to enter into a discussion of the views entertained by the majority and minority of the court in those cases. It might not be amiss, however, to suggest that if the general rule is to allow assessment by the front foot, and the exception is only where such an assessment becomes confiscatory in character, whether wholly or partially so, it would seem that the person who seeks to bring
It was contended that the acts of 1907 and 1908 were repealed by that of 1909, and that this destroyed any right on the part of the city to collect executions issued prior to the passage of the last mentioned act. It has been said, that, as a general rule, the repeal of a statute without any reservation takes away all remedies given by the repealed statute. But where a new statute is a substantial re-enactment of an old one, and expressly recognizes and makes provision in regard to rights and remedies which accrued under it, the general rule is not applicable. Section 6 of the Civil Code of 1910 declares that “Laws looking only to the remedy or mode.of trial may apply to contracts, rights, and offenses entered into or accrued or committed prior to their passage; but in every case a reasonable time subsequent to the passage of the statute should be allowed for the citizen to enforce his contract, or protect his right.” The act of 1909 did not merely repeal the prior acts and stop. It dealt with the same general subject-matter of the board of public works, and the pavement and improvement of streets, and in the same general manner. It made provision for the contest of the amount or legality of the assessment by means of an affidavit of illegality; and it recognized and substantially preserved the existing order of things. It expressly referred to executions issued under the act of 1907, and authorized their transfer. It declared that all the rights, powers, titles, property, easements, and hereditaments then belonging to the City of Home should be vested in it under its new charter. Such an enactment did not destroy the right of the city to collect executions issued under the act of 1907, nor did it leave the owner of abutting property without a remedy to contest the amount or legality thereof.
As we have held that the acts of the legislature under which these proceedings were taken were not void for any of the reasons urged against them, and that the charter of the City of Borne furnished an ample remedy to the owner of an abutting lot to contest the amount of such assessment or the legality of the proceedings to levy and collect it, the present petitions, as brought, would not authorize an injunction. Regenstein v. City of Atlanta, 98 Ga. 167 (25 S. E. 428). We do not, therefore, deal with the numerous complaints made in regard to a failure by the city officials to comply with requirements of-the act before and after the work was done. The injunction was properly refused in both cases.
Judgment affirmed in each case.