Fayer v. Mayor of Washington

Hines, J. (After stating the foregoing facts.) When this case was here before this court held that the petition failed to set forth a cause of action, and that the court erred in overruling the demurrer. Before the remittitur from this court was made the judgment of the court below, the plaintiffs amended their petition by new and additional attacks upon the validity of the assessment against property abutting upon the streets paved to defray the expenses of paving. To the petition as amended the defendants renewed their demurrer, which the court sustained; and to this judgment the plaintiffs excepted. The plaintiffs attack the validity of the assessment, because the contract between the city and the county for paving these streets was illegal and invalid. The alleged invalidity of this contract is — 573 — based upon the ground that all contracts entered into by the ordinary or county commissioners, as the case may be, with other persons in behalf of the county, must be in writing and entered on their minutes . (Civil Code of 1910, § 386); and that such contracts, unless so in writing and so entered on the minutes, are incapable of enforcement by those with whom they- are made. Weathers v. Easterling, 153 Ga. 601 (2) (113 S. E. 152). ít is likewise true that a contract between a county and a contractor for the construction or improvement of a State-aid public highway must be in writing and entered upon the minutes of the board of county commissioners, before the same can be enforced by the contractor. Board of Commissioners v. MacDougald Construction Co., 157 Ga. 595 (122 S. E. 317). Eor the purposes of this case we may concede, without deciding, that a contract fully performed by the other party, where the full fruits of. the contract have been received and retained by the county, can not be enforced against the county. So in this case, if the contract between the city and count}" was one in behalf of the county, it must be in writing and spread on the minutes of the county commissioners, before it would be enforceable. In deciding whether the contract was made in behalf of the county, we must keep clearly in mind the nature of the arrangement between the city and county. The State Highway Department and the county were desirous of constructing or improving interconnecting county-seat roads. The City of Washington was desirous of having portions of the streets in question paved. The city was unable to obtain Federal aid for the paving of its streets. -The State Highway Department and the county could and did procure such. In this situation the city appointed the county its agent to contract for the paving of portions of these streets. The creation of this agency was made by a written resolution of the mayor and council of the city,- duly passed and spread upon the minutes of the city council. So the contract creating the agency rvas in writing. But if it had rested only in parol, it was made in behalf of the city and not of the county. So we are of the opinion that the appointment by the city of the county as its agent to contract for the paving of a portion of its streets, under a common arrangement betAveen the State Highway Department, the county, and the city for the construction of interconnecting county-seat highways, of AArhich such streets Avere links, was not a contract — 574 — in behalf of the county, but one in favor of the city, by which the city reaped the benefits of Federal aid, and thus lessened the burden of taxes its citizens would have to bear to secure the pavement of these streets. This being so, we do not think that the contract was such a one in behalf of the county as was required to be in writing and spread upon the minutes of the county commissioners, as required by this section of the code. It is not amiss to say that the contract between the county and contractor was in writing and spread on the minutes of the board. While this contract was not made by the county expressly in the name of the city, it was executed and performed under the above common arrangement. So the contract between the city and the county was not invalid because not in writing and spread on the minutes of the county commissioners, and the assessment of property abutting on these streets to pay a portion of the cost of paving them was not invalid because based upon an illegal contract. Where the charter of a municipality authorizes the paving of streets and the collection of assessments against abutting-prnperty owners, and provides that such property owners may file an affidavit of illegality and may contest the whole or any part of the amount so claimed, levy of the assessment is not void on the ground that the owner is not afforded due process of law. Sanders v. Gainesville, 141 Ga. 441 (2) (81 S. E. 215); Horkan v. Moultrie, 154. Ga. 444 (2) (114 S. E. 888). Another attack upon the validity of the assessment against abutting property is that the contract, by which the city entered into the above arrangement with the State Highway Department and the county, created a debt by the city, in violation of article 7, section 7, paragraph 1, of the constitution of this State, which prohibits municipalities from creating debts without the sanction of a popular vote. When this case was here before, we held that the allegations of the petition did not show the creation of such a debt. By an amendment to their petition, made after the above ruling, plaintiffs alleged that the City of Washington, under its charter, is only authorized to levy and collect a tax for general purposes, not exceeding 25 cents on every $100 of taxable property in said city; that the total property returned for taxation for the year 1919 therein amounted to $2,971,380; that the total sum the city was authorized to levy for town purposes, under said limitation in its — 575 — charter, on the taxable property within its limits was only $7,-438.45; that out of said sum the city was required to pay and did pay sums amounting to $18,605.23 for general purposes, by reason of which there were no funds in its treasury, and the city could not, during said year, levy any tax for the purpose of paying the cost of said paving; and that in consequence of these facts the arrangement under which these streets were paved amounted to the creation of a debt in violation of said constitutional provision. Under the resolution of the mayor and council of this city, providing for the paving of these streets, the city appropriated $25,000 for this purpose, to be raised by levy of assessments upon the property abutting on such streets, and further provided that any balance of the cost which could not be paid from funds derived from said assessments should be paid out of the general funds of the city. Under these additional allegations, taken in connection with those of the original petition, the plaintiffs failed to show that the city created any debt for these improvements, in violation of the above constitutional provision, it not being alleged that in pursuance of said resolution the city made any contract for the paving of said streets, by which it would be required to pay out of its general funds any portion of the cost of the improvements, and there being no allegation that the assessments were not sufficient to pay that portion of the cost properly chargeable to abutting-property owners, and that the funds derived from the State Highway Department and Federal aid under the above arrangement were not sufficient to pay the city’s proportion of the entire cost of paving these streets. The absence of an allegation, in the petition as amended, that there existed such balance negatives its existence; and we can not assume that the assessments were not sufficient to meet the sum appropriated by the city to pave these streets. So we are of the opinion that the plaintiffs failed to show the creation of any debt by the city in violation of the above constitutional provision. The burden to do this rested upon them; and they failed to carry this burden. Another attack on the legality of the paving assessments is based on the ground that the assessments against abutting-property owners included the intersection of cross-streets not abutting on the property of the individuals assessed. Under the decision in Kaplan v. City of Macon, 144 Ga. 97 (86 S. E. 219), the assess — 576 — ment was not illegal on this ground. The request to review and overrule that decision is denied. Paragraph 5 of section 2 of article 5 of the act of August 18, 1919, reorganizing the State Highway Department (Ga. Laws 1919, pp. 242, 249), provided: “That when any portion of the designated State-aid road system is taken under the jurisdiction of the State Highway Department by written notice as prescribed in article 5, section 1, hereof, the county or counties in which said portion is located shall not thereafter be required to levy taxes for the construction or maintenance thereof.” This provision is a limitation upon the power of the county to levy taxes for the construction and maintenance of State-aid highways, but is not a limitation on the power of a city to provide for the pavement of its streets under such an arrangement as was made in this ease. Whether a city would be liable for the maintenance of its streets which are made a part of State-aid roads is not now for decision by this court. Under section 7 of article 5 of the above act, reorganizing the State Highway Department, provision is made for reimbursing counties for money expended in the construction of State-aid roads. This act does not make provision for the payment of moneys expended by a city for paving its streets, nor for the payment of assessments levied by the city for such purpose when such moneys are expended and such assessments are levied in pursuance of an arrangement by which the city is to secure the pavement of its streets free of all cost, except.such portion thereof as can be assessed against the lands of individuals abutting on said streets, or from funds otherwise lawfully applicable for such purpose, notwithstanding the fact that such streets are links in State-aid roads. Plaintiffs allege that certificates have been issued to the County of Wilkes which are sufficient to pay the entire cost of paving these streets, and that this act provides a complete method for the payment of these costs. There is no allegation in the petition that these costs have been paid in full by the State Highway Department to the county. If these certificates had been paid to the county and the entire cost of paving these streets had thus been liquidated, a different question would be presented for adjudication. Whether the city and the plaintiffs would be entitled to the proceeds of these certificates when they are paid is not now a question for determina — 577 — tion by this court. Such provision for the reimbursement of counties for funds expended in the construction of such highway.-, and the mere issuance of certificates by the State Highway Department, which show that the county is entitled to funds sufficient to pay the entire cost of the pavement of these streets, in the absence of an allegation that the certificates themselves have been paid, do not render illegal the assessments levied against lands abutting on these streets to meet the portion of the cost of paving, which the city was authorized in its charter to assess -against abutting property. It may be that if these certificates are paid, the city and the owners of abutting property on these streets would be entitled to such funds; but this question is not now before us for decision. 'Other allegations of the petition attack the constitutionality of the act of the General Assembly creating the Highway Commission, wherein authority was granted to said board to. lend its credit to the political subdivisions of the State for the building of State highways, it being contended that these provisions are in conflict with article 7, section 8, paragraph 1, of the constitution of Georgia (Civil Code (1910), § 6565), providing: “The State shall not assume the debt, nor any part thereof, of any county, municipal corporation, or political division of the State, unless such debt shall be contracted to enable the State to repel invasion, suppress insurrection, or defend itself in time of war.” This contention is without merit. It follows from the foregoing rulings that the court did not err in sustaining the general demurrer and dismissing, the petition. Judgment affirmed. All the Justices concur, except Beck, P. J., disqualified, and Hill and Gilbert, JJ., dissenting.