Witherow v. Board of Drainage Commissioners of Powder Springs Creek Drainage District No. 2 , 155 Ga. 476 ( 1923 )

Gilbert, J.

1. It has been held by this court that assessments of the character involved in this suit “ are radically different from ad valorem taxes, and are not taxes within the meaning of the constitution.'’ Almand v. Pate, 143 Ga. 711, at p. 716 (85 S. E. 909), and citations.

2. The demurrer of one of the defendants, going to the substance of the whole petition, and challenging the right of the plaintiffs to any relief in a court of equity, inured to the benefit of the other defendants, although the other defendants filed no pleas. McKinney v. Powell, 149 Ga. 422, 430 (100 S. E. 375). Therefore the failure of some of the defendants to appear and plead affords no reason why the court should have granted a temporary injunction.

3. There is no error assigned except on the judgment refusing a temporary injunction; and this court is not authorized, on'the issue thus raised, to consider the meaning and legal effect of the drainage acts not brought in question. To do so would be to deal in obiter dicta, which should be carefully avoided.

4. The petition undertakes to raise the question of the constitutionality . of that portion of the act of 1918 quoted in the statement of the case, but nowhere in the petition does it appear that this portion of the act has been applied injuriously to the plaintiffs, or that they have sought any remedy denied to them by virtue of the said portion of the act. Indeed, the petition does not undertake to set up any illegal act of the defendants, or any failure to comply with the law in regard to the assessments under the drainage act of 1911. Aside from the alleged purpose of securing an interpretation of the act, the substance of the petition merely shows that assessments have been made, and that fi. fas. have been issued and the lands advertised for sale. The allegation that these acts have been done “ illegally,” without stating any facts constituting illegality, is a mere conclusion of the pleader. In the case of Almand v. Pate, supra, this proceeding has been declared to be authorized under the act of 1911.' The constitutionality of the quoted section of the act of 1918, therefore, will not be decided, because it is not shown that the portion of the act questioned in any way injuriously affects the rights of the plaintiffs.

5. Under the pleadings the court did not err in refusing a temporary injunction. Judgment affirmed,.

All the Justices concur. H. B. Moss, for plaintiffs. Anderson, Rountree &. Crenshaw, Campbell Wallace, and Joe Abbott, for defendants.