City of Atlanta v. Hamlein , 96 Ga. 381 ( 1895 )

Atkinson, Justice.

1. The theory upon which local assessments for street improvements are allowed to be laid upon the abutting lot owners is, that such street improvements, aside from the mere general advantage resulting to the community at large, will result in some special advantage to the particular owner in which the general public does not participate. This special benefit to the private lot owner is the circumstance which gives legal validity to a legislative act authorizing the assessment; for unless some special advantage result to the owner in consequence of the street improvement for and on account of which his property was assessed, the effect of that assessment would be arbitrarily to deprive the citizen of his property, a proceeding which is not allowable under a form of government the boast of which is to protect the individual in the enjoyment of his right of private property. This test has heretofore in this State, in the case of Speer et al. v. Mayor and Council of Athens, 85 Ga. p. 49, been recognized as the one upon which the legality of such assessments is allowable. It is the only theory upon which, under our form of government, such assessments can be justified; for to say that the legislature, in its discretion, could seize the property of an individual and arbitrarily appropriate it to a public use without adequate compensation, is contrary to the very genius and spirit of our institutions of government. In the resultant benefit is to be found the compensation to the individual which justifies the charge upon his estate.

2. As a general proposition, upon the question of benefit, whether general or special, the owner is concluded by an expression of the legislative will. Where power is conferred upon the municipal authorities, in their discretion, to inaugurate a system of street improvements, with the power likewise conferred of imposing upon the abutting lot owners a proportionate share of the cost of such improvements, such power may be well exercised by the city authorities without giving notice of any character to the lot owner; and it is inconsistent with the proper exercise of the taxing power, and would tend to a manifest embarrassment of the public in the prosecution of these public improvements, if, upon every assessment, the lot owner were entitled to have the question judicially determined whether or not he would be benefited by the proposed improvement. As to whether he was benefited or not, is a question which should address itself to the discretion of the municipal authorities. Their judgment upon this subject is ordinarily, except in the most extreme cases, conclusive; but, as we have before stated, it is not allowable that,the municipal authorities, under the guise of a public improvement, should arbitrarily deprive the citizen of his estate. If, therefore, in the levy of such assessments, the cost of the improvement be so disproportioned to the value of the estate sought to be improved, as that the levy of thé assessment amounts to a virtual confiscation of the lot owner’s property, such assessment cannot be upheld as a legal or valid exercise of the power to tax for such improvements. To the proposition here announced, the attention of the profession is invited to the following authorities: Speer et al. v. Mayor and Council of Athens, 85 Ga. pp. 57 and 62, supra; City of Atlanta v. Gate City Street Railroad Company, 80 Ga. 280; Preston v. Rudd, 84 Ky. 150; Poulsen v. Portland, 1 Lawyers’ Reports Annotated, p. 673.

3. In the present case the municipal authorities were proceeding by execution with the collection of a local assessment against the property of the defendant in error. It appears that the defendant in error was the owner of a narrow strip of property, seven feet in width at one end, three feet in width at the other, and extending along the line of the improved street four hundred and seven feet. It appears that the pro rata share of the defendant in error of the cost of the improvement as assessed by the city, estimated upon the front foot rule, amounted to seven hundred and twenty-one d'ollai’s and twenty-eight cents. It further appears that the highest estimated value of the property of the defendant' in error, after the street improvement was completed, was two hundred and sixty dollars. According to these figures, this assessment, if upheld as legal, would appropriate to the public use entirely the private property of the landowner subject to the assessment, and, in addition, would leave the latter in debt to the city in the sum of four hundred and sixty-one dollars and twenty-eight cents. Under these circumstances, the defendant, in error applied to the superior court for an injunction to restrain the collection of the sum so assessed against, him. The exact extent of the benefit necessary to uphold such an assessment is incapable of definition. But it may be asserted with perfect confidence, that the present is; one of those extreme cases of such doubtful benefit and! probable spoliation as will justify the interference of a court of equity in order to prevent the citizen from being arbitrarily deprived of his property. We presume, upon more mature consideration the city authorities will be enabled to make such an assessment against this particular property as will impose upon it its fair pro rata. share of the cost of improvement. If not, the circuit judge, to whom this case will be remitted, will doubtless formulate such a decree as will preserve the rights of the citizen and at the same time allow to the municipal corporation a just exercise of its power to tax.

Judgment affirmed,