Opinion
39248.
DECIDED FEBRUARY 28, 1962.
Affidavit of illegality, etc. Clayton Superior Court. Before Judge Banke.
Preston L. Holland, for plaintiff in error.
Griffin Patrick, Jr., contra.
1. Where a fi. fa. is levied pursuant to statutory authority upon a single parcel of property, the fact that the property has a value greatly in excess of the amount of the fi. fa. does not make the levy excessive.
2. The contention that the paving assessments were arbitrarily assessed at different figures for separate properties is contradicted by the record.
3. Where property abuts on two streets it has frontage on both streets for purposes of assessment of paving costs by a municipality.
4. The other assignments of error were contradicted by the record or were abandoned.
DECIDED FEBRUARY 28, 1962.
Plaintiff in error filed an alleged affidavit of illegality in the Clayton Superior Court which charged that the defendant had issued a fi. fa. pursuant to an ordinance of the City of College Park which provided for paving and curbing of Lee Street and assessing the property owners whose real estate abutted on either side with the cost. This ordinance assessed one-half of the cost against real estate abutting on the north side of the street and one-half on the south side. The plaintiff in error contended that the ordinance was never legally adopted; that it was never spread upon the minutes of the governing authority, in violation of the city charter, and that it was adopted without proper hearing; that it was being discriminatorily administered; that the street paving assessment was being arbitrarily and discriminatorily assessed against the plaintiff in error the entire length of the side street as plaintiff in error had previously paid a street paving assessment for the front of his property; and that the resolution was unconstitutional and in violation of the Constitution of the United States and of the State of Georgia.
To the alleged affidavit of illegality the city filed a general demurrer and an answer and traverse to it admitting the issuance of the fi. fa. and denying the other paragraphs. The defendant's general demurrer was overruled, a jury trial was waived, and after hearing, the trial court issued an order dismissing the affidavit of illegality. To this order the plaintiff in error excepted.
1. The plaintiff in error contends, firstly, that the decision of the trial court to dismiss the alleged affidavit of illegality was contrary to law, primarily because the fi. fa. shows on its face that it is void. In support of this argument it is urged that the levy was excessive as the entire property was being sold under a fi. fa. issued in the amount of $277.32, while the property had a value of more than $9,000.
The contention as to excessive levy is without merit.
The assessment was made under an act of the General Assembly entitled "College Park Charter Amendments," Ga. L. 1951, p. 2797, § 13, pp. 2804-5. This amendment to the city's charter authorizes the mayor and council to assess the total actual cost of paving, grading, or other street improvements against the real estate abutting on either side of the street upon which the work is being done. It further provides, "The amount of the assessment on each piece of real estate shall be a lien thereon from the date of the passage of the ordinance providing for the work and making the assessment." Under its terms the mayor and council have full power and authority to enforce the collection of an assessment by execution issued by the city clerk against the real estate and against the owner for the amount assessed, "which execution shall be levied and the property advertised, and sold in the same manner as tax executions are now levied. . ."
The cases cited in support of plaintiff in error's contention that the levy was excessive are neither controlling nor in point. These cases involved tax executions which were for a small portion of the total value of multiple and separable properties against which the executions were attempted to be levied. See Long Realty Co. v. First Nat. Bank of Valdosta, 177 Ga. 440 ( 170 S.E. 485) where the tax fi. fas. totaling approximately $2,300 were sought to be enforced against thirty-five or more separate parcels of property valued in excess of $50,000; and Brantley v. Hicks, 177 Ga. 812 ( 171 S.E. 451), where an attempt was made to enforce a fi. fa. for $300 against several different and distinct parcels of land. These cases are obviously distinguishable from the one before us where the fi. fa is levied pursuant to statutory authority upon a single piece of property.
As the statute makes the assessment a lien upon the property and authorizes a levy against it, the trial court properly refused to consider evidence offered to show the property value exceeded the amount of the fi. fa.
2. The contention by the plaintiff in error that the paving assessments are being arbitrarily assessed at different figures for the separately owned properties involved is contradicted by the record, which shows that each parcel of realty on the street was assessed at $1.73 per property foot.
3. It is apparent to us that the basic contention of the plaintiff in error is that since the property fronts on Austin Street and the paving assessment on Austin Street has been paid, the city is without power to assess his property for paving the street running along the side of his lot on Lee Street. He urges that the portion of his property along which Lee Street runs is not frontage, but is "side footage."
The act of the General Assembly amending the charter of the city gives the mayor and council full authority to assess the full cost of improving streets within the corporate limits against the real estate abutting on each side of the street "in just proportions to the frontage by the foot of said property." Where, as here, the plaintiff in error's property is located on a corner facing two streets, it is indisputable that the property abuts on both streets and has frontage on both streets and the assessment for paving is authorized for this abutting frontage.
4. The contention that the ordinance was illegally adopted because it was never spread upon the minutes of the governing authority; that it was never legally and properly adopted; and that it was adopted without a proper hearing, is contradicted by the record.
All other assignments of error were not argued and are deemed abandoned.
The trial court properly dismissed the plaintiff in error's alleged affidavit of illegality.
Judgment affirmed. Felton, C. J., and Hall, J., concur.