Under a proper construction of the charter powers of the City of Griffin, the power "to lay out and open new streets and alleys," and "to provide by ordinance and require the paving of any street, lane or alley . . . and to provide for the payment thereof" does not empower the city to widen the existing paving of a street and to apportion and to assess the apportioned costs of such widening of the pavement against the abutting property owners.
The City of Griffin filed its petition for declaratory judgment, naming as the defendants certain property owners along Fifth Street, in which the city alleges that pursuant to a valid municipal ordinance it proposes to widen the existing paving on Fifth Street between East Taylor Street and East Broad Street and to assess the costs of such paving against the abutting property owners, the defendants. It is alleged in the petition that an actual controversy exists between the city and the defendants which grows out of the following facts: Fifth Street in the City of Griffin between East Taylor Street and East Slaton Alley has a width of 120 feet. On Fifth Street from East Taylor Street to East Solomon Street there is a strip of paving 40 feet wide, leaving the remainder of the 120 feet unpaved. On Fifth Street from East Solomon Street to East Slaton Alley, there is a strip of paving 24 feet wide, leaving the remainder of 120 feet unpaved. From East Slaton Alley to East Broad Street, Fifth Street is 80 feet wide, and there is a strip of paving 24 feet wide, leaving a remainder of 80 feet unpaved. The city has made all necessary plans and is ready to lay down additional paving on Fifth Street from East Taylor Street to East Broad Street, so that the paved portion of Fifth Street from East Taylor Street to East Solomon Street will be 95 feet wide; from East Solomon Street to East Slaton Alley, 80 feet wide; and, from East Slaton Alley to East Broad Street, 45 feet wide.
Subsection 26 of Section 22 of the charter of the City of Griffin (Ga. L. 1921, pp. 959, 967) provides as follows: "To provide by ordinance and require the paving of any street, lane or alley of said city and prescribe the material to be used for that purpose and for the grading of such street, lane or alley and the manner in which the paving shall be laid and to provide for the payment therefor and to this end said municipality shall apportion the cost of such paving and grading in such manner and amount as may seem equable and just to the Board of Commissioners by the said city, and the abutting property owners on each side of said street, lane or alley and the proportion or amount of the cost for paving and grading herein provided for, as may be assessed against the abutting property, may be collected by issuance and levy of fi. fa. and the sale of property in the same manner as taxes are collected."
The City of Griffin has passed an ordinance providing for the paving of Fifth Street between East Taylor Street and East Broad Street, a copy of which is attached to and made a part of the petition.
The owners of property abutting on Fifth Street between East Taylor Street and East Broad Street, being the defendants named herein, have notified the city that they will not pay their apportioned part of the proposed payment. The city claims that under the pertinent sections of its charter, it has the right and authority to pave the street and to assess and collect the costs thereof from the abutting property owners. The defendants' contentions with reference to the controversy are that the street has already been paved, and that, therefore, they are not liable for the costs of any additional paving which may be laid on this street.
The plaintiff contends there are no issues of fact raised by the petition requiring determination by a jury. It is further alleged that unless a declaratory judgment is rendered, there will be numerous suits filed and that a declaratory judgment would prevent a multiplicity of suits and will protect the city from uncertainty with respect to the propriety of its acts in laying and assessing for the contemplated paving.
Upon the hearing before the court without the intervention of a jury, the parties entered into the following stipulations: (1) That the court shall pass on all questions of law and fact and render a final judgment. (2) That the City of Griffin will not include in the assessments any portion of the costs of removing and relocating existing curbs, gutters, drains, sewers and water mains. (3) That the decision of this court shall be based upon its answer to the following questions: (a) Whether or not the proposed widening and paving confers any special benefit upon the abutting property owners as distinguished from a general public benefit; and, (b) whether or not the charter of the City of Griffin confers upon the city authority to widen the pavement as proposed and assess the cost against the property owners.
In answer to the two questions, stipulated by the parties for decision, the trial court found in favor of the city on the first and in favor of the defendants on the second. The city in its direct bill of exceptions assigns error on the judgment; and, one of the defendants, Ed Smith Chevrolet Company, by cross-bill of exceptions assigns error upon the trial court's limitation upon its right of cross-examination.
Other than to say that the questions raised by the plaintiff's petition and the defendants' answers were, by stipulation of the parties, narrowed to two, and the questions presented for review are limited in the main bill of exceptions to an assignment of error upon the answer to the question by the trial court adversely to the plaintiff, and in the cross-bill of exceptions to the trial court's limitation placed upon the defendants' right of cross-examination, in considering the question which, in our view, is determinative of the entire case, we need only to quote and adopt as our own the well prepared and able opinion filed by Judge McGehee who tried the case in the court below without the intervention of a jury:
"The evidence is undisputed that in 1939 the City of Griffin paved Fifth Street, constructed the necessary curbs, gutters, drains, and assessed at least a portion of the cost against the abutting property owners. There is no contention that this paving is worn out or in bad repair, but the city does contend that a widening of this pavement is desirable to take care of the increased flow of traffic, and for other reasons, and that such widening will result in a special benefit to abutting property as well as a benefit to the general public.
"The question as to the charter authority of the City of Griffin is a much more difficult question. Aside from the authority to make assessments for authorized improvements, including pavement, the only authority granted to the city for laying out and paving streets is as follows (Acts 1921, p. 959) [Section 22]:
'[Subsection] 24. To lay out and open new streets and alleys in said city.'
'[Subsection] 26. To provide by ordinance and require the paving of any street, lane or alley of said city, and prescribe the material to be used for that purpose, and for the grading of such street, lane or alley, and the manner in which the paving shall be laid and to provide for the payment thereof.'
"Although there are a great many reported cases in Georgia dealing with the charter powers of municipalities with reference to streets, this court has not been able to find a case in which it is held that the right to pave streets and assess the cost does or does not include the right to widen existing paving and assess the cost against abutting property owners.
"By the great weight of authority, it is held that: 'Legislation relating to assessments for public improvements will not be enlarged by construction. On the contrary, in accordance with general rules, and independently of any legislative requirement on the subject, the legislation claimed to confer the power is to be construed strictly as against the municipality and liberally in favor of the property owner.' 44 C. J. 493. See also Burckhardt v. City of Atlanta, 103 Ga. 302 (30 S. E. 32).
"It has been held that widening a pavement is original construction within a statute authorizing a city council to impose the cost of original construction of a street on abutting property owners. Huddleston v. Ashland, 217 Ky. 452 (289 S. W. 1091). However, the charter of the City of Griffin does not contain such a provision. Although it has the authority to 'lay out and open new streets' it does not have authority to assess the cost against abutting owners.
"The following cases involved situations similar to the one now under consideration: Mayor & Aldermen of Savannah v. Weed, 96 Ga. 670 (23 S. E. 900); Bacon v. Mayor & Aldermen of Savannah, 86 Ga. 301 (12 S. E. 580); Avery & Sons, Inc. v. City of Atlanta, 163 Ga. 591 (136 S. E. 789). In the first case charter authority authorized the city to 'adopt at any time an ordinance requiring the grading, paving, macadamizing and otherwise improving for travel or drainage any of the streets or lanes of said city and assess two thirds of the cost . . . on the real estate abutting on each side of the street or lane improved' [emphasis added]. In the second case, charter authority authorized the city 'to improve any of the streets, or any portion of the width of any street in the city.' In the third case, charter authority authorized the city to 'acquire land for widening and extending existing streets and to assess all or any part of the cost of obtaining the same against property located in an assessment district.' No comparable authority is granted to the City of Griffin under its charter. Although the city has authority to 'lay out and open new streets and alleys,' it has no authority to make a special assessment against abutting property owners for such purpose. It does have authority to grade and pave a street and make assessments therefor (Sec. 22 Par. 26).
"Fifth Street has been graded and paved to its present width, necessary curbs, gutters, drains and sewers have been constructed and the cost of this improvement, or a proportionate part thereof, has been assessed against and paid by the abutting property owners. It is the opinion of this court that, under the very limited authority granted by its charter, the City of Griffin has exhausted its right of assessment against abutting property owners on Fifth Street. The right of the city to make these improvements out of the general funds is not questioned. See Dickinson v. City of Detroit, 111 Michigan 480 (69 N. W. 728); Wreford v. City of Detroit, 132 Michigan 348 (93 N. W. 876).
"Wherefore, it is the judgment of this court that the City of Griffin does not have charter authority to assess the cost of said proposed new paving on Fifth Street against the abutting property owners."