Wilkins v. Mayor of Savannah , 152 Ga. 638 ( 1922 )

Hines, J.

(After stating the foregoing facts.) On August-18, 1919, the charter of the City of Savannah was amended, and the city was given the authority to pave and repave its streets, and to assess the entire cost of such improvement to owners of property abutting on the streets so paved or repaved. Ga. Laws 1919, p. 1294 et seq. Plaintiffs, who own lots abutting on West Broad Street in Savannah, the pavement on which had been condemned by the city and the street ordered to be repaved, attacked the constitutionality of so much of the said act of August 18, 1919, amending the charter of the City of Savannah, as authorizes the city to assess the entire cost of repaving its streets. to abutting-property owners, on the ground that said act is in conflict with article-1, section 4, paragraph 1, of the constitution of this State (Civil Code, § 6391), which provides that “no special law shall be enacted in any case for which provision has been made by an existing general law.”

At the date of the passage of this act there was in force a general law which declares that “ the mayor and council or governing authority of any city having a population of over twenty thousand have authority to renew, by the use of any material that may be decided on, or repair any pavement in said city, upon the same terms and’ conditions, as to assessment of property and street-car companies, as were in force when the pavement was originally laid.” Civil Code, § 870. Here is a general law which gives to municipalities in this State having a population of over twenty thousand authority to renew or repair any pavements within their limits, upon the same terms and conditions, as to assessment of property and street-car companies, as were in force when the pavement was originally laid. The power to renew is the power to repave. Regenstein v. Atlanta, 98 Ga. 167 (25 S. E. 428). In fact the original act from which this section of the code was taken used the words, “pave again,” which clearly demonstrates that “renew” in the above section was used for “repaving.” Under this general law municipalities could only assess the owners of property abutting on streets for repaving purposes the same percentage of cost assessable under the law when such streets were originally paved. In other words, assessments against owners of abutting property on streets which are repaved must be upon the same terms and conditions as to such assessments of property and street-car companies as existed when the ^original pavement was put down. If, when the original pavement was laid, the owners of abutting lots could only be charged one third, one half, or two thirds of the cost, then such owners, undér this section, can not be charged more when the pavement is renewed or the street repaved. The language, “upon the same terms and conditions as to assessment of property, ” includes the proportion of the cost which can be charged to owners of lots abutting upon the street which is repaved. Such proportion must be the same as that which could be charged to owners under the law in force when the pavement was originally laid.

When West Broad street was originally paved with vitrified brick this was done under an act entitled “ An act to authorize the Mayor and Aldermen of the City of Savannah to require the grading, paving, macadamizing, or otherwise improving for travel or drainage any of the streets or lanes of the City of Savannah; to make and collect assessments for the same, and for other purposes.” 6a. Laws 1887, p. 537. Under this act the Mayor and Aldermen of the City of Savannah were authorized “to assess two thirds of the cost of such paving, grading, macadamizing, and otherwise improving, on the real estate abutting on each side of the street or lane improved,” and could require any street-railroad company having tracks running through the streets of said city so improved to macadamize or otherwise pave, as the city migiit direct, the width of its track and two feet on each side thereof. These were the terms and conditions upon which the lots of owners abutting on streets of the City of Savannah could be assessed for paving or for other improvements of its streets.

By the act of August 18, 1919, the city is authorized to charge-for repaving its streets the entire cost thereof to abutting-pro'pertv owners. This special act was passed when the general law embraced in section 870 of the code was in force, and seems to .us to be clearly in conflict with the provision of the constitution of this State which forbids the passage of any special act for which provision had been made by an existing general law. This constitutional infirmity of the act of August 18, 1919, is not cured by the fact that this section of the code was amended on August 19, 1919, providing that “where any change or modification is made in the charter of any city having a population of not less than 65,000 and not more than 100,000, in regard to the method of paving, by an amendment to such charter, provision may be made in such amendment for the renewal and repairing of any existing pavement under the provisions of such amendment.” Ga. Laws 1919, p. 81.

This remedy came too late to save the fatal malady of the act of August 18, 1919. Jones v. McCaskill, 112 Ga. 453 (37 S. E. 724).

Counsel for the City of Savannah insist that section 870 never did apply to that city, because the act of 1887 conferred upon the city the identical power conferred by this section. It is urged, that there is no conflict between the act of 1887 and this section of the Code, and that, for this reason, the local law is not modified or repealed. Granting this, the situation is not changed. The act of October 1, 1887, does confer upon the city the power to repave its streets. This section confers the same power; but it goes one step further, and establishes a general system of assessments for repaving for all cities of 20,000 inhabitants or more. It makes all assessments, chargeable under local laws, when the streets of such cities were originally paved, applicable to the repavement thereof. Thus a general law on this subject is enacted, and by its express terms is made applicable to Savannah. But however this may be, the City of Savannah was not proceeding under the act of 1887, but under the amendment to its charter of 1919.

So we are of the opinion that so much of the act of August 18, 1919, as clothed the Mayor and Aldermen of the City of Savannah with the right to assess the entire cost of repaving this street io property abutting thereon, falls clearly within the case for which provision is made in section 870 of the code; and for this reason is null and void because in violation of the provision of the constitution above recited.

' The rule that this court will not interfere with the discretion of the trial judge in granting or refusing an injunction does not apply when the question to be decided by the trial judge is one of law. Chestatee Pyrites Co. v. Cavenders Creek Cold Mining Co., 118 Ga. 255 (45 S. E. 267).

We do not think that the plaintiffs are guilty of such laches as would deprive them of the right of injunction. Counsel for the city contends that they are not entitled to an injunction, because they acted prematurely, as the assessments had not been made, but were only in process of being levied. They can not be both premature in their action and at the same time guilty of laches. We think they are liable to neither charge.

We think that the court below should have granted an injunction restraining the mayor and council of the City of Savannah from proceeding to repave this street under the act of August 18, 1919. As this disposes of the case, we do not consider any of the other objections urged by the plaintiffs to these proceedings.

Judgment reversed.

All the Justices concur.