Opinion
21179.
ARGUED MARCH 14, 1961.
DECIDED APRIL 6, 1961. REHEARING DENIED APRIL 20, 1961.
Injunction. Fulton Superior Court. Before Judge Pye.
Jones, Bird, Williams Howell, Arthur Howell, Cam D. Dorey, Jr., Scott Hogg, for plaintiff in error.
Newell Edenfield, J. C. Savage, contra.
A statute which authorizes a municipality to pave streets similarly situated and alike in all respects, or similarly situated portions of the same street, and to assess a different portion of the cost of the improvement to abutting landowners, is discriminatory and violative of the guaranty of equal protection of the laws of the Constitutions of the United States and of Georgia.
ARGUED MARCH 14, 1961 — DECIDED APRIL 6, 1961 — REHEARING DENIED APRIL 20, 1961.
In their petition against the City of Atlanta as amended, the plaintiffs allege substantially the following facts. The plaintiffs are owners of realty fronting on the portion of Bohler Road extending from DeFoors Ferry Road to Peachtree Battle Avenue in the City of Atlanta. On March 7, 1960, the city passed an ordinance under the amendment to the charter of the City of Atlanta enacted by the 1959 General Assembly, which ordinance provided for the paving of the described portion of Bohler Road, at an estimated cost of $50,442.50. The ordinance assesses the entire cost and fixes a corresponding lien on the abutting property. A majority of the property owners interposed a timely opposition to the proposed improvement.
The remaining portion of Bohler Road had previously been paved without assessment of the entire cost to the abutting property owners, and the defendant has improved similar streets without assessing the entire cost to the property owners. Subsequently to the 1959 act, streets similar in all respects, namely Conway Valley Road and a portion of Foxcroft Road, have been paved only after petition by a majority of the abutting property owners, and those petitioners designated the type of paving; and some similar streets have been paved at no cost to abutting property owners.
The charter of the City of Atlanta as it pertains to the subject of paving and street improvement includes the following bases of assessment.
(1) The city may, upon petition of at least one-half of the abutting property owners, pave a street, the abutting landowners sharing two-thirds of the cost of the improvement, the city bearing the remaining one-third. Provided, however, that, upon petition of at least one-third of the abutting owners, the city may pave a limited connecting distance of city streets, assessing the cost in the same manner as described above. Notice and hearing are required.
(2) The city may, without petition by abutting property owners, pave streets and assess the cost one-third to the city and two-thirds against abutting property owners, provided the cost does not exceed specified sums per front foot. Notice and hearing are required.
(3) The city may, without petition, pave city streets, assessing one-third of the cost to itself and two-thirds of the cost to abutting property owners. Notice and hearing are required.
(4) The city may, upon petition of more than fifty percent of the abutting owners, pave city streets, assessing the entire cost to the property owners plus ten percent of the total cost of such work as a maintenance fund. Notice and hearing are not required in all cases.
(5) The city may, without petition, pave all or any portion of any city street, assessing the entire cost to abutting property owners. Notice and hearing are required. This method of assessment was used in the case sub judice.
The plaintiffs allege that the proposed paving does not specially benefit them, and that the 1959 charter amendment and the paving ordinance deprive them of due process of law and equal protection of the laws in violation of the Constitutions of the United States and Georgia, for the following reasons.
(1) That the coexistence within the charter of the City of Atlanta of several alternate methods of assessment, without a standard to guide the city in applying the various methods, renders the 1959 charter amendment so vague, indefinite, and uncertain as to be unenforceable.
(2) That the city was granted arbitrary discretion to discriminate in choosing the method of assessment of paving costs.
(3) That the charter amendment is an attempt to delegate nondelegable legislative powers.
The plaintiff prays for injunctive relief enjoining the defendant from proceeding with the proposed paving or assessing the cost to the plaintiffs, and for such other relief as is necessary.
A restraining order was issued. The complaint was heard on demurrer, and the court entered its order sustaining the general demurrer and dismissed the petition.
Unquestionably, the legislature possesses the authority to confer upon a municipality the right to provide public streets and to compel the owners of realty fronting thereon to pay the costs of these improvements. Hayden v. City of Atlanta, 70 Ga. 817. But this power is not absolute, and one of the limitations is the guarantee of equal protection of the laws as embodied in the Fourteenth Amendment to the United States Constitution and art. 1, sec. 1, par 2 of the Constitution of Georgia. See Georgia R. Bkg. Co. v. Wright, 125 Ga. 589 ( 54 S.E. 52). This constitutional guaranty requires that all persons shall be treated alike under like circumstances and conditions. 12 Am. Jur. 129, § 469. Our system of government does not allow the exercise of arbitrary power. Yick Wo v. Hopkins, 118 U.S. 356 ( 6 S. Ct. 1064, 30 L. Ed. 220). "When the General Assembly vests power in a municipal corporation to perform governmental functions, it is well settled that it must prescribe clear and definite procedure to guide its action in the performance of such power." City of Atlanta v. Southern Ry. Co., 213 Ga. 736, 738 ( 101 S.E.2d 707).
In the case under consideration, the legislative authority provided five alternate methods of initiating paving of public streets or portions thereof and assessing the costs of paving. The methods differ in the amount of the assessment, the right to be heard in protest, and the right upon petition to designate the type of paving. The charter provisions contain no standards delineating what set of circumstances will authorize the use of each method. Being cumulative, the 1959 amendment to the charter authorizes the city to pave streets similarly situated and alike in all respects, or even similarly situated portions of the same street, prorating two-thirds of the cost to one group of abutting landowners. and prorating the entire cost to a second group of abutting landowners. The legislation confers the selection of the method of assessment to the uncontrolled discretion of the municipality, and licenses it to discriminate arbitrarily among its citizens. Such legislation offends the guaranty of equal protection of the laws of the Constitutions of the United States and of Georgia, and the 1959 amendment to the charter of the City of Atlanta and the paving ordinance adopted pursuant thereto are void.
The holding in City of Valdosta v. Harris, 156 Ga. 490 ( 119 S.E. 625), is not controlling in the case under consideration. The Valdosta case involved the grant of an interlocutory injunction, and the trial judge granted his order "without deciding the questions as to constitutionality of the statute or validity of the contract." City of Valdosta v. Harris, supra, at p. 499. The trial judge in that case suspended paving operations because serious questions were involved, and he deemed it wise to grant injunctive relief until a final decision was reached on these questions. This court held the grant of the interlocutory injunction to be an abuse of discretion. But a matter upon which the trial court did not rule was not for review by this court. Williams v. State, 206 Ga. 107 ( 55 S.E.2d 589); Isaacson v. House, 216 Ga. 698 ( 119 S.E.2d 113). Consequently, any ruling by this court on the constitutional question in the Valdosta case is obiter and does not provide a rule for decision for this court.
Judgment reversed. All the Justices concur.