157 Ga. 388 | Ga. | 1924
Lead Opinion
The City of Moultrie adopted an ordinance having for its purpose the paving of a certain street in that city, and making certain assessments against the property abutting thereon; and an execution was issued and levied on certain real estate of John M. Norman, the plaintiff in error, which abutted on said street. Norman filed an affidavit of illegality. Later he filed three amendments to the affidavit, which were allowed by the court. The City of Moultrie filed demurrers, general and special. The court below sustained the demurrer and dismissed the affidavit of illegality as amended, “as insufficient in law to constitute a defense against the execution complained of.” To this ruling Norman-excepted.
The only questions that need to be considered in the present case are those raised by the amendments to the affidavit of illegality. The original affidavit of illegality is the same as that filed and passed upon in the case of Horkan v. City of Moultrie, 154 Ga. 444 (114 S. E. 888). The rulings in that case are controlling here as to the questions raised in the original affidavit of illegality. The question's raised by the amendments to the affidavit of illegality are as follows: (1) The assessment against the property of the plaintiff in error is so excessive as to amount to a confiscation of his property.' (2) The execution is issued against the defendant both in personam and in rem. (3) The description of the property in the fi. fa. is so indefinite as to render it void. (4) The failure of the City of Moultrie to pave the property of a certain railroad which crosses the street paved rendered the execution invalid as to him. We will deal with these questions in the order named.
The general rule is: “Ordinarily, the question of benefit, whether general or special, is concluded by a distinct legislative declaration, specifically authorizing the improvement; but where by its charter a municipal corporation is authorized generally to
In the case of Wing v. Macon, 142 Ga. 382 (3) (82 S. E. 1062), it was held: “Where, in an affidavit of illegality filed in resistance to the collection of an execution issued against an alleged abutting owner, to compel the payment of his proportionate share of the expense of laying sidewalks, paving, and curbing, it is alleged that the amount assessed against him is so great that it amounts to a confiscation of his property, this ground of the affidavit is without merit in the absence of some statement showing the value of the property against which the assessment was made, so that the court may compare the amount of the assessment with the value of the property taxed.” It will therefore be 'seen that it will be impossible for this court to say as a matter of law whether the amount assessed by the city against the property of the plaintiff in error is so excessive as to amount to a confiscation of his proprety, unless the whole value of the land, including the improvements, in the way of buildings, is given.
It is further alleged in the amended affidavit of illegality that even though the City of Moultrie made a contract by the terms of which it paid the sum of $3.65 per square yard for said paving, said agreed or contract price was unreasonable and excessive; and
It is insisted that the execution in the present case was issued against the defendant both in personam and in rem, and that in addition to issuing the fi. fa. the city caused the same to be recorded on the general execution docket of the county, so that it appears on the docket as a general common-law fi. fa. against the defendant; that it being so issued and so appearing upon the general execution docket injures and damages him, as it affects the title to other property owned by him, and the same appears to be a lien against his other property; and he prays that the same be delivered up and canceled. The fi. fa. in the present case commands “that of the goods and chattels, lands and tenements of John M. Norman, one lot in block 71, city lot No. — in the City of Moultrie, said State and County, [describing the property] . . you cause to be made, by levy and sale, sufficient thereof to make the sum of $538.87.” We are of the opinion that both the fi. fa. and the levy show on their face that this is a proceeding in rem; and without deciding whether the defendant in fi. fa. would be personally liable, the fi. fa. calls for a levy only on the property of the defendant which abuts on the street which has been improved, and the levy in the present case also describes that particular property and that only.
But it is insisted that the description of the property levied upon in the instant case is not sufficiently definite and certain to form the basis of levy and sale. The execution reads in part as follows: “You are hereby commanded that of the goods and
It is further insisted that the failure of the City of Moultrie to pave the right of way of a certain railroad which crosses the street paved invalidates the assessment. In Bacon v. Savannah, 86 Ga. 302 (6) (12 S. E. 580), it is held: “Though the statute certainly contemplates that the tracks of street-railroads and a space of two feet on either side thereof shall be paved or macadamized by the companies at their own expense, and abutting owners cannot be required to contribute to the cost thereof, yet a broad street may well admit of general improvement as a system separate and distinct from the macadamizing or paving of the street-railroads located thereon. Where this is so, abutting owners may be required to contribute their proper part to defray the cost of general improvements, whether the special improvement required of railroad companies be made or not.” In the case of Springfield v. Weaver, 137 Mo. 650 (37 S. W. 509), it was held that where an ordinance requires a street-railway company to pave a certain part of a street occupied by it, the paving of the other part to be paid for by assessment against abutting property, it is no defense to an assessment for paving the part not required to be paved by the - railway company that the city did not require the railway company to pave its portion of the street. We think that the failure of the defendant in error to pave the right of way of the railroad which crosses the street in question does not invalidate the whole assessment.
The court below did not err in sustaining the demurrer to the affidavit of illegality as amended, and in dismissing the same as being insufficient in law to constitute a defense against the execution levied in the present case.
Judgment affirmed.
Dissenting Opinion
dissenting. I agree that the ruling in the EorTcan case, supra, required striking the grounds of the illegality to which it is applicable. But I think two of the grounds of the affidavit of illegality were good and should have been sustained instead of being dismissed. I cannot agree to the ruling of the court to the effect that the value of buildings and other improvements upon real estate abutting on a street which is subject to assessment for street improvement should be considered in the determination of whether the assessment is confiscatory. The improvement of a city street may increase the value of the lot and the building, if it has a building upon it, but the accretion goes entirely to the site of the building — the land itself, — and nothing can possibly be added to the building considered apart from the lot regardless of its original cost, since the building is daily subject to deterioration and periodically expensive for repairs, whether it is situated on a mere trail, or fronts the most modern bitulithic asphalt pavement. In my opinion the court was right in holding, in Wing v. Macon, 142 Ga. 382 (supra), that an affidavit of illegality, alleging that the amount assessed against the defendant in fi. fa. was so great that it amounted to a confiscation of his property, was without merit unless there was a statement showing the value of the property against which the assessment was made, so that the court could compare the amount of the assessment with the value of the property taxed, and that the value of buildings upon the property was to be included. This for the very reason stated above, that it is inconceivable how there can be any addition to the value of a hovel by laying a beautiful pavement in front of it, though it can be easily understood how such a pavement would so greatly increase the value of the lot as to render the speedy removal of the hovel most desirable. On the other hand a palace upon the lot would be worth no more and no less than the amount necessary to build it, or to replace it if it were destroyed. In fact an examination of the original record discloses that the lot in Wing’s case was a vacant lot. The ruling in Wing’s case is perfectly reasonable, but the word property as used in that case has reference to the lot and not the building. In the present case the allegation of the affidavit of illegality, in my opinion, is sufficient to comply with the requirement laid down in Wing’s case; for the value of the lot before the street im
Nor can I agree to the ruling contained in the third headnote. In my opinion, “one lot in block 71, city lot number — in the said City of Moultrie, said State and County, commencing at a point 75 feet from the N. E. corner of Fifth avenue and Third street S. E., and measuring and abutting 75 feet on the north side of Fifth avenue S. E., between First street S. E. and Tenth street S. E., and running back its full width, 150 feet in a northerly direction,” is so indefinite that the lot cannot be located. I will illustrate by the following diagram:
It must be conceded that there is one thing certain in the description, — the lot in question commences at a point 75 feet from the N. E. corner of Fifth avenue and Third street S. E.' That is at the point designated upon the diagram by a cross. It is