85 Ga. 49 | Ga. | 1890
In the year 1889, the legislature passed an act which was approved' October 16th, “ to authorize the Mayor and Council of the City of Athens to construct, pave and otherwise improve sidewalks in said city, and to. assess and collect the cost thereof out of the real estate abutting on the sidewalk so constructed, paved or otherwise 'improved; to provide for the collection of such assessments, and for other purposes.” This act gives the power to the mayor and council “in their discretion to construct sidewalks in said city and pave the same; to pave sidewalks already constructed; to put down curbing, and to otherwise improve the sidewalks now constructed or hereafter to be constructed.” It gives them the power to “ assess the cost of construction, paving and improving sidewalks . . on the real estate abutting on the sidewalk constructed, paved or otherwise improved.” It also- gives them power to assess the cost of keeping in repair the sidewalks of the city, and gives them power “ to enforce the collection of the amount of any assessment under this act, by execution to be issued by the clerk of council against the real estate so assessed, and against the owner thereof at the date of the ordinance making the assessment, . . which executions may be levied by the chief of police . . on such real estate; and after advertising and other proceedings as in cases of sale for taxes due the said city, the same may be sold at public outcry to the highest bidder.” It
Subsequent to the passage of this act the Mayor and Council of Athens adopted a general ordinance to carry it into effect, prescribing the mode and manner in which the sidewalks of Athens should be paved, and the material to be used in the pavement thereof. One section of this ordinance provides that each of the owners of property fronting on the sidewalks required to be paved is authorized to make the pavement in front of his property himself, under the supervision of the street commissioner, within thirty days after receiving notice that the sidewalk in front of' his property is one of those ordered by council to be paved. In the event " of the failure of the property-owner to pave the same within the time prescribed, the city undertook to pave it; a bill of expenses or costs was to be served upon the property-owner, and if not paid by him, execution was to be issued as required by the act. Another ordinance was adopted by the mayor and council, wherein they required the sidewalks on certain named streets to he paved. On these streets the plaintiffs in error owned property. They failed and refused to pave the sidewalks in front of their property in accordance with the ordinance of the city, whereupon some of the sidewalks were paved by the city authorities. The bill of expenses was made out in each case by the person having charge of the pavement for the city and was reported to council as required by the ordinance, and a copy of the bill sent
In the Hayden case, 70 Ga. 817, special benefit to the property-owner, it seems, was not regarded as essential; but whatever may be the view entertained as to this, it is clear that the whole question of benefit, whether general or special, is left to the legislative discretion, and except in extraordinary cases, as hereafter explained, is not a matter of enquiry for the courts. In that case, Blandeord, J., in delivering the opinion of the court, says: “It is a part of the police power of the State conferred on this city. . . The hlessings conferred by these improvements are shaz’edby the owners of the property assessed, in a greater degree than the general public, but whether this toas so or not, the power resides in the State, and the legislature may by law confer upon municipal corporations the right to make these improvemezits, and to assess the property fronting on the streets thus improved, for the cost of the same. . . . The power to have worked, opened, repaired and improved the public highways, streets and roads, may be exercised by the legislature in such mazzner and way and under such circumstances as may be deemed best. Thez’e is zzo limitation imposed by the constitutiozi on this power; it rests upon the sound discretiozi of the legislature.”
“Due process of law” in this case is such as is appropriate to the exercise of the taxing power; for while, as was held in the Hayden case, assessmezits for local improveznezzts of this kind are not taxes within the meaning of our constitution, yet “that these assessments are an exercise of the taxing power has over and over again been affirmed, until the controversy must be
Of the cases cited for the plaintiffs in error to show that the property-owner must be allowed a hearing upon the question of benefit, it wdll be found that most of them deal with the taking of property under the power of eminent domain; in which cases the requirements as to notice and hearing, and the questions open, to hearing. are essentially different. The distinction between assessments for paving and the exercise of the- right of eminent domain is recognized in the Hayden case, and is well-stated in Lewis on Eminent Domain, §5. See also cases hereinafter cited. Where property is taken or damaged for public improvements under the right of eminent domain, just compensation must be made to the owner, and where it is claimed that a part or the whole of that compensation comes to him in the shape of benefit, it is proper that a hearing be allowed him on that subject. The strong expressions so often quoted from the decisions in such cases as to the necessity of a hearing on the question of benefit, are thus explained. What has been said by the authorities as to the importance to persons assessed that they should have an opportunity to be heard before the charge is fully estab
As to the conclusiveness of legislative action upon the question of benefit, the result of the adjudications is stated in Sheley v. Detroit, 45 Mich. 431 (1881), by Judge Cooley, whose woi’k on Taxation, in the treatment of this subject, is the authoi’ity most frequently cited and commended by the Supreme Court of the United States and the courts of the country generally. He says: “We might fill pages with the names of cases decided in other States which have sustained assessments for improving streets, though the apportionment of the cost was made on the same basis as the one before us. (Frontage.) If anything can he regarded as settled in the municipal law in this country, the power of the legislature to. permit such assessments and to direct an apportionment of the cost by frontage, should by this time be considered as no longer open to controversy. Writers on constitutional law, on municipal law and on the law of taxation have collected the cases, and have recognized the principle as settled. If the legislature declares that the cost . . shall be levied upon abutting lots or their owners according to values, or to assessed benefits or to frontage, the determination binds us absolutely and conclusively, provided we discover no want of legislative authority. There is ample ground, therefore, upon which the legislature may act when they decide that in their opinion considerations of equity require the cost of paving to be imposed upon the owners of abutting lots. We do not hold that they decide right, for that is not our concern; we only decide that they have the power and the discretion to do what they have done.”
The Court of Appeals of Maryland, in the Johns Hopkins Hospital case, 56 Md. 1 (1881), overrules a former decision (Mayor, etc. v. Scharf, 54 Md. 499), and deals at some length with this question. It holds that “Whether an improvement authorized by the mayor and council will benefit the property along the line of
In New York, the leading case of Stuart v. Palmer (74 N. Y. 183, 30 Am. Rep. 289), deals directly with the constitutional requirement of “ due process of law”
Illustrations of the extraordinary cases which must be presented to warant a departure from this rule of non-interference by the courts, will be found in Preston v. Rudd, 84 Ely. 150, and Poulsen v. Portland, 1 Lawy. Annot. Rep. 673, supra, in each of which cases the general rule itself is strongly upheld. In the former case the assessment was far in excess of the value of the property. In the latter case the exception recognized is, where property assessed is so remotely situated from the improvement charged upon it, that special benefit
Says Cooley on Taxation, p. 588 : “The eases of assessments for the construction of walks by the side of the streets, in cities and other populous places, are more distinctly referable to the power of police. These foot-walks are not only required, as a rule, to be put and kept in proper condition for use by the adjacent proprietors, but it is quite customary to confer by the municipal charters full authority upon the municipalities to order the walks of a kind and quality by them prescribed to be constructed by the owners of adjacent lots at their own expense, within a time limited by the order for the purpose, and in case of their failure so to construct them, to provide that it shall be done by the public authorities, and the cost collected from such owners or made a lien upon their property. When this is the law, the duty must he looked upon as being enjoined as a regulation of police, because of the pe
Commenting on this, the Court of Appeals of Virginia says (Sands v. Richmond, 31 Gratt. 577), (1879): “Whether the learned author is correct in referring the improvement of the sidewalk by the owner to the police power, or whether it belongs to the taxing power, it is not material to discuss. It is a power exercised by the municipal authorities of perhaps three fourths of the cities of the United States under their respective charters ; it is just and reasonable in itself, and, with a few exceptions, is approved by the whole current of decisions.”
Chief Justice Beasley, whose strong expressions in the Tidewater case (3 C. E. Green, 18 N. J. Eq. 518) occupy several pages of the brief of the plaintifis in error and are specially relied upon to establish the unconstitutionality of this act, expressly excepts from the rule there laid down assessments for sidewalks, which assessments he approves in the following language:
“A sidewalk has always, in the laws and usages of this State, been regarded as an appendage to and a part of the premises to which it is attached, and is so essen
The Supreme Court of Tennessee, which has disallowed assessments for street improvements generally,, as opposed to the constitution of that State, expressly excepts sidewalks (McBean v. Chandler, 9 Heisk, 349, 379), and places the authority to order their construction, or to construct them, upon the ground of police power. Mayor v. Mayberry, 6 Humph. 368; Washington v. Nashville, 1 Swan, 177. So likewise in Colorad, where assessments for street improvements generally are held unconstitutional. Palmer v. Way, 6. Col. 106; City of Pueblo v. Robinson, 21 Pac. 900; Wilson v. Chilcott, Id. 901. See also Goddard’s case, 16 Pick. 505, s. c. 28 Am. Dec. 259; Inhabitants of Palmyra v. Morton, 25 Mo. 596; Woodbridge v. City of Detroit, 8 Mich. 309, 310; Town of Macon v. Patty, 57 Miss. 378, s. c. 34 Am. Rep. 473; Deblois v. Barker, 4 R. I. 445; Bonsall v. Town of Lebanon, 19 Ohio, 418; State v.City Council, 12 Rich. (S. C.), 733; Borough of Greensburg v. Young, 53 Pa. St. 280; O’Leary v. Sloo, 7 La. Ann. 25; White v. People, 44 Ill. 604 (reviewing and explaining 34 Ill. 203, and 40 Ill. 217); County of Hennepin v. Bartleson, 37 Minn. 343 (1887); City of Galveston v. Heard, 54 Tex. 427 (1881); Dillon on Municipal Corporations, §761, paragraph 6 (4 ed. 935), also §798; Burroughs Taxation, 494; Desty Taxation, 1354.
The limitations or restrictions which should attend
As to the notice and hearing “appropriate to the nature of the case,” ample provision is made by this act and the ordinances thereunder. In the first place, the lot-owner is notified by general ordinance, of which he, as a member of the corporation, it has been held, is bound to take notice. 25 Mo. 593, supra; 2 Dill. Mun. Corp. §804. Again, before a brick is laid, special notice is given him. The ordinance under which the improvement is directed requires this notice served upon the lot-owner, that he may have the opportunity to co; tract the sidewalk himself or have it constructed at b own prices for labor and material; and he is given lirty days in which to do this. If he does not choose avail
The following is a list of cases cited for the plaintiffs in error to illustrate what is meant by “due process of law” : Ex parte Zibold, 20 C. L. J. (imprisonment for contempt); 30 Wisc. 129 (murder case); 13 N. Y. 393 (liquor case); 4 Wheat, 235 (summary process in favor of bank against debtors on notes, etc.); 100 U. S. 346 (indictment against county judge for excluding negroes from jury lists); 63 Ala. 547 (trover for conversion of city bonds); 2 Tex. 251 (summary
It will be seen that, with but one exception (Davidson v. New Orleans, 96 U. S. 107), these cases do not relate to assessments or the exercise of the taxing power. So far as they show that a hearing is requisite, they are unnecessary, for in the present case a hearing is provided for; and so far as concerns the questions to which that hearing should extend, they illustrate nothing as to cases of this character. Nor does the Davidson case aid the plaintiffs in error. In that case it was held that the act did provide for due process of law, and the assessment was sustained. The court says : ‘.‘This court has heretofore decided that ‘due process of law ’ does not in all cases require a resort to the courts to assert the rights of the public against the individual, or to impose burdens upon his property for the public use” ; and Mr. Justice Miller lays down the following rule : “ Whenever by the laws of a State or by State authority, a tax assessment, servitude or other burden is imposed upon property for the public use, whether it be for the whole State or of some more limited portion of the commu- . nity, and these laws provide for a mode of confirming or contesting the charge thus imposed, in the ordinary courts of justice, with such notice to the person or such proceedings in regard to the property as is appropriate to the nature of the case, the judgment in such proceeding cannot be said to deprive the owner of his property
Much of the argument addressed to this court was devoted to the evils and hardships incident to the power of assessment, and the very elaborate brief for the plaintiffs in error concludes with the language of Chief Justice Church in Guest v. City of Brooklyn, 69 N. Y. 506, in which these evils are strongly condemned. But the reply, so far as the courts are concerned, is to be found in that decision itself; and we conclude by quoting from the same opinion: “ The effective remedy is not with the judiciary. "Whatever our individual views may be of the policy, we are obliged to maintain established rules of law, and to restrain our own power within prescribed limits, as well as to enforce restrictions upon other departments of government. We should regard a departure by the courts from rules of law wisely established for the protection of all, to meet the equities of a particular case or class of cases, as a far greater evil than that sought to be remedied. Courts can confine the legislature within constitutional authority; and when.questions are legitimately up, can and do exact a strict compliance with all the requirements of law leading to a forcible taking of the property of the citizen, but beyond this they have no discretion," and are themselves bound to observe and enforce legislative provisions, whether they approve them or not. The only effective remedy is with the legislative department of the government.” Judgment affirmed.