Monk v. City of Moultrie , 145 Ga. 843 ( 1916 )

Fish, C. J.

(After stating the foregoing facts.)

1. As to the first contention, under the facts the giving of the note by the city was not a creation of a debt falling within the constitutional prohibition relied on by the plaintiffs. The city, at the time of executing the contract for the improvements of its streets, designated by ordinances of April 7 and 21, had in its treasury cash, derived from the sale of bonds legally issued for the improvement of its streets, largely in excess of the amount required for the payment of its proportionate share of the cost of such improvements contracted for. And when the city, after expending the whole amount of such cash on hand for work on the streets as it progressed, which included one third of the cost of paving for which the city was liable and all of the cost of curbing and two thirds of the cost of paving for which the abutting-property owners were liable, gave its note for the balance due for all work done, with the expectation and the right to collect by execution the assessments due by the abutting owners, and with the special fund derived from the proceeds of the collection of such assessments, to pay off such note, the giving of the note in these circumstances was clearly not the creation of a debt against the city and illegal and unconstitutional because violative of art. 7, sec. 7, par. 1 (Civil Code of 1910, § 6563). See Spalding County v. Chamberlin, 130 Ga. 649 (3), 655 (61 S. E. 533); McCord v. City of Jackson, 135 Ga. 176 (5), 177 (69 S. E. 23); Wilson v. Gaston, 141 Ga. 770 (82 S. E. 136). The act of 1913 (Acts 1913, p. 1062), empowering the City of Moultrie to improve its streets, limits the liability of the city for such improvements to one third of the cost of paving; and the giving by the city of the note to the construction company, representing a portion of the balance due by the abutting-property owners to the construction company, did not make the note such an indebtedness of the city as to be violative of the provision of the constitution referred to.

2. As to the second contention, attacking the legality of the assessments against the plaintiffs as property-owners along the loop, on the ground of irregularity in the publication of the ordinances under which the streets situated thereon were improved, we hold that the same is also without merit.. Section (5) of the act of 1913 (Acts 1913, p. 1064) declares: “One publication of the ordinance or ordinances providing for the improvements mentioned in this section, in the newspaper in Colquitt County in which the sheriff’s advertisements are published, shall be sufficient notice to abutting-property owners, or street-railway companies, or steam-railway companies having tracks on the streets, alleys, or ways to be improved, of the contents and provisions of such ordinances, and of the fact that such improvements are to be made.” A municipal ordinance is a local law ox rule prescribed by a municipal government for application within its local jurisdiction. There can be no valid ordinance until it is. properly passed by the legally constituted governing departments of a municipality. The act referred to does not require the publication of a proposed ordinance, or ordinances, or notice of . contemplated action thereon, but of “the ordinance or ordinances providing for the improvements mentioned,” etc. It is clear from the wording of the statute that publication of the ordinances after their passage was a compliance therewith. It is equally manifest that the ordinances intended by the statute to be published are those which purport to' carry into effect the intention of the city authorities to pave definite streets, specifying them, and not the publication of a general ordinance or resolution passed by the mayor and aider-men contemplating the improvement of the streets and thoroughfares of the city as a whole, providing rules and regulations for the same, an assessment-roll, etc. The purpose of publication is to notify the persons whose interests are to be affected by the assessment incident to the improvements of the streets along which the property is situate, of the intended -paving and curbing by the city, and not citizens and taxpayers and the public generally of such city of the intended improvements. The right of the plaintiffs to an injunction against the collection of the assessments against them as abutting-property owners along the loop resting solely on the ground of the alleged illegal manner of publication of the ordinances providing for such assessments, it follows that only of such ordinances as are being effectuated by such assessments can they complain, and that an amendment to an ordinance providing a method of collection in installments, etc., — of benefit,to abutting-property owners, — which is not sought to be enforced against plaintiffs, can not in this proceeding be successfully attacked; and the plaintiffs are not entitled to injunction against the collection of the assessments against them on the ground that such amendment was never published.

From what has been said it follows that the judgment refusing an interlocutory injunction should be

Affirmed.

All the Justices concur, except Gilbert, J., not presiding.