concurring specially. I do not care to be committed, directly or indirectly, to the legal soundness of several of the ruling's announced in the majority opinion. Surely the importance of the principles involved and the far-reaching effect of those hold-*720ings justify the setting forth oí my reasons for failing to concur. It appears to me that the act of 1931, amending the act of 1919, is unconstitutional in that it confers upon the City of Decatur unlimited power to make collection of street-improvement assessments by “proceedings against any property of the railroad company.” On page 19 of its brief the City of Decatur declares this to be the meaning of the act. In spite of such admission on the part of the city, and seemingly without regard to the language of the statute, the majority opinion declares that its purpose is to subject “the property of the company used in the operation of its business in the City of Decatur.” It would seem that the plain language used by the General Assembly, and the construction placed upon it by the defendant in error, should be accepted as conclusive in determining legislative intent. Be this as it may, the construction forced into it does not safeguard the statute against an attack on the ground of unconstitutiohality. Broadly speaking, the General Assembly in delegating and the City of Decatur in exercising the right to pave the city’s streets are entirely within constitutional limitations. The city has the right to select the streets to be improved; to determine the character of the paving, the method of arriving at assessments, the distribution thereof among the various parcels of abutting real estate, and the collection of all amounts due through levy upon and sale of such abutting property, subject to rules of uniformity and laws against discriminations. The city has the charter power to levy against street-railway property legally abutting upon the paving project a share of such cost, and to enforce its charter right to require the company to pay for all paving within its tracks and for two feet on each side thereof.
It seems to be within the power of our lawmakers to raise a presumption of benefits to abutting real estate through paving, and the courts will not intervene except to prevent gross injustice. This is a prima facie presumption, however, intended to protect municipalities in undertaking schemes of development, which are favored by the law, and may not be used as a cloak under which to work confiscation. While an owner of real estate lying against or along any given paving project may not halt the making of the improvement by setting up that his property will not be benefited, he may nevertheless raise, after assessment and levy, the question of confiscation and have the same determined by a lawful tribunal of this State. *721The law of the land abhors the confiscation of the property of the citizen, as the law of nature is said to abhor a vacuum. Let it be said, in passing, that after the city has reassessed and made legal levy upon the abutting property of the company, the company may apply to the courts for a determination of this question of confiscation. To deny to any taxpayer, whether an individual or a corporation, this protection, would place him at the mercy of the whims of municipal officers, and face to face with a continuing threat of bankruptcy through extravagant or needless schemes of village development.
The Georgia Power Company can not consistently maintain that, as the successor of the Georgia Railway & Electric Company and the Georgia Railway & Power Company, it may not be held liable to the. extent of lawful assessment against, levy upon, and sale of the property held by it as ássignee or transferee, where such property abuts upon the improved street. I am of the opinion that with a legal assessment and a proper levy such property may be made subject to the debt. A new trial having been granted, there is neither excuse nor justification for a determination at this time of the legality of the assessment and its binding force against the Georgia Power Company as assignee of the Georgia Railway and Electric Company. Conceding, for the purpose of this discussion only, the constitutionality of the act of 1924, this question .should be left open for future determination. I oppose the erection at this time of any judicial barrier against a fair and equitable determination of this important question. Our attention is called to the ease of Ga. Ry. &c. Co. v. Decatur, 29 Ga. App. 653 (116 S. E. 645), where it was said that “the constitutionality or validity of the act of August 18, 1919, . . under, which the municipality contends that such a levy upon such other property is authorized, is in no wise drawn in question by the record in the instant case; and therefore this court, being called upon to pass upon the act, must construe it upon the assumption that it is valid.” Seemingly a rather weak stimulant for the contention of the defendant in error. In the leading case on the subject of paving assessments, Hayden v. Alania, 70 Ga. 817, the assessment was “against the abutting property.” In Ga. R. Co. v. Decatur, 137 Ga. 538 (73 S. E. 830, 40 L. R. A. (N. S.) 935), the city was proceeding against “land abutting on sewers.” Ga. Ry. &c. Co. v. Atlanta, 153 Ga. 335, was *722a “street-repair” case; a proceeding based upon tbe city’s police power; its authority to make persons using same keep the pavement in condition safe for traffic. We are safe in saying that the learned Justice did not intend to substitute “mandamus” for “paving assessment.”
Within our information this is the only case known to the records in Georgia, except that in the 29 Ga. App. supra, in which an effort has been made to make any mean all property of a street-railroad company subject to such assessments. It will be noted that the City of Decatur in making claim that “any property” (and this must mean whether located in’ that city or not) is subject. Should the company own a long, thin, worthless strip of land in .any city, through which it may prove to be necessary or desirable to lay a street, the Georgia Power Company, or like corporation, may well apprehend the sale of its Atlanta offices and power-houses to liquidate a paving assessment. Under legislative sanction the municipalities of this State have a wide discretion and a broad authority in the making of public improvements. They may select streets to be'improved, may tax the cost of paving against abutting real-estate owners, and may collect the amount thereof by levy upon and sale of the abutting, presumptively benefited, property. No question is raised in this case as to the legal right of the lawmaking body to delegate and the City of Decatur to exercise, through proper ordinance, all of these powers. Presumptively the city is not claiming the legal right, and certainly it is making no effort, to collect from property owners other than the Georgia Power Company, through levy and sale of real estate remote from the sphere of benefits; that is, away from and not physically connected with the paving project. We must therefore determine the question, may the City of Decatur collect assessments for street paving through levy and sale of the property of a street-railroad company not abutting upon or physically connected with the improved portion of the street? It is not necessary to hold any protracted judicial autopsj^ or any more or less minute judicial dissection of the body of the act of 1924. If this limb of enforcement is infected with a gangrene of unconstitutionality, it should be amputated.
In the first place it may be contended, with ■ some degree of plausibility, that street railways and other similar enterprises must, of necessity, be placed upon a different footing from the ordinary *723owner of abutting real estate. The-necessity may exist, and.the desirability and helpfulness of such a holding, from the standpoint of the ambitious nrunicipality, clearly appears; but these must not lead us from the pathway of justice and the true law into thorny ways of injustice and discrimination. If discrimination and distinction are to be made, let them be such as the law will justify, or at least forgive. Out of the necessities of the case and for the benefit of the whole, government must retain and exercise some control or dominion over the lives, liberty, and property of the citizen. Any interference with these things by governmental agencies must have regard to legal rights, and proceed in accordance with the prescribed forms of law. There are seemingly some four methods by which the State may, in its own name and behalf, or for the presumptive good of the public, do the not always painless act of taking from the citizens or residents (and these terms include corporations) the fruits of long and laborious efforts and the exercise of acquisitive instincts:
1. Taxation: This is, of course, an inherent and inalienable right of government; to be exercised'in the legislative discretion, if within constitutional limitations. This is based" upon governmental need and conclusively presumed general benefits.
2. Condemnation, or the right of eminent domain: This is a right to be exercised by the State in its sovereign capacity for its own uses, or for the-public good in the delegation of the right to the individual or corporation. Considerations of public benefit underlie it. In all cases just and adequate compensation must first be paid for all property taken.
3. By judgment and execution regularly issued through courts of competent, jtirisdiction: Here a consideration is conclusively presumed.
4. Assessment for paving and other public improvement by State, county, or municipality: This right is not asserted as taxation in a strict sense; not in the exercise of the right of eminent domain; not through suit and judgment in the courts. This right arises through'the necessity for public improvement by governmental agencies, but resists unconstitutionality solely on the theory that real estate physically abutting upon, improved highways will be benefited through both proximity and actual physical contact with the improvement.
*724We deem it proper to consider all of these propositions, but are, of course, primarily concerned with the fourth. In order that the rule recognized in this State may be thoroughly understood, we will copy the announcement made in the ease of Hayden v. Atlanta, supra: “Taxes are different from'assessments for local improvements, taxes being burdens upon all persons and property alike, and compensated for by equal protection to all, while assessments are not burdens but equivalents, and are laid for local purposes upon local objects, and are compensated for to some extent in local benefits and improvements, enhancing the value of the property assessed. Taxes are imposed on the person; assessments are imposed on the property.” Also the rule laid down in Brumby v. Harris, 107 Ga. 258: “Assessments for the improvement of a street are sustained by courts only because of benefit to the particular property, and the executions issued therefor do not run gen-rally against the other property of the owner not situated upon the street.” In 12 C. J. 1264, § 1065, it is said that “it has usually been held that a personal judgment for an assessment is void, even against a resident owner, for the reason that assessments are based on the theory of special benefits to property, and that a taking of the entire property and the imposition of personal liability in addition would constitute a clear case of confiscation.” We are safe, then, in holding that a paving assessment is not a tax; that it can not be made the basis for a general judgment; that it is a proceeding in rem, and operates against the abutting and benefited property, and that alone; and that the rule will operate to protect tlie property of a street-railway company not abutting upon the paving, unless otherwise directed by a constitutional general law applicable to all street railways and their property.
Our attention is called to the case of Durham P. S. Co. v. Durham, 261 U. S. 149, where it was held: “The power of the legislature to make reasonable classifications and impose a different burden upon several classes can not be denied. There are obvious reasons for imposing peculiar relations upon a railway in respect of streets occupied by its tracks.” This merely declares a rule long recognized in practically all jurisdictions. It must be noted, however, that in the case before us, it is not a question of classification ; we concede the right of the city, under legislative sanction, to require the company to pave between its tracks and two feet on each *725side thereof; more than this if within reason. The question involved in this case is the collection of assessments; can the legislative authority, acting through its municipal subdivision, without let or hindrance pave when and where it will within the corporate limits, ignore the abutting property of the company, issue execution based upon a general judgment, and sell or sacrifice the property of the company wherever found?- It must be conceded that no property owner may stay the march of public improvement by giving notice that it will not benefit his property touched by it. The city is vested with the power to fix the time and name the streets that it will pave, and the owner is practically powerless. In the absence of any positive ruling on a given point of law, we may consider the equities of the situation. Who is the aggressor in this case; who moved first? The City of Decatur. If it moved with its eyes closed, it must suffer the- consequences of its own stumble. All persons, and this presumptively includes municipal corporations, are presumed to know the law; and to know the facts, for that matter. Before embarking on this enterprise, the City of Decatur was aware of the fact that the pro rata portion of the cost of the paving assessable against the Georgia Power Company would be approximately $14,000. It knew that the entire property would not bring the amount. It now proposes, with the assistance of the General Assembly and the Supreme Court, ignoring abutting property, to force the company to operate this money-losing enterprise, and compel payment of a large portion of the cost of its city betterment through levy upon and sale of all property it is able to lay hands on in the City of Decatur, possibly elsewhere, whether abutting or not. Low fare and cheap thoroughfare.
Governmental powers as exercised by the municipalities of Georgia are broad and far-reaching. There are some things they cannot do, even with legislative sanction; they may not change an action in rem to an action in personam, certainly not in a special instance; they may not confiscate the property of the individual or the corporation, even though the result of a successsful effort to do so would bring added beauty to a town and comfort to the inhabitants thereof. We are called upon to witness that the legislature creates the corporation and grants its special franchise and privileges, and therefore has the power to amend its charter and franchise and impose additional duties upon the corporation. This we eon-*726cede; tire rule is especially applicable to cases where the regulations or provisions arc generally within tire scope of the charter at the time of its accptance. In the case now under consideration, the “regulation” or “additional duty” sought to be imposed was not indicated in the original charter, but first appears in the act of 1924. Be this as it may; certainly it must be legally true that the legislative power can not, by subsequent amendment, work confiscation of the property of the corporation, nor discriminate against it in violation of any constitutional provision. It would not seem consistent with the rules of justice that the mere acceptance of a franchise granting privileges and setting forth liabilities would, within itself, work an estoppel and require submission on the part of the grantee to any and all things sought to be imposed upon it by joint legislative and municipal action.
The constitution of Georgia, art. 1, sec. 1, par. 2 (Code § 6358) provides: “Protection to person and property is the paramount duty of government, and shall be impartial and complete.” Under the act of 1924, granting to the City of Decatur authority to make a general assessment against the Georgia Power Company for cost of street paving, and the ordinance based thereon, providing for the enforcement of collection through levy and sale of the property of the company generally, is the company impartially and completely protected in the ownership and possession of its property? I find no authority for the distinctions or discrimination now attempted to be made against it, and therefore hold that so much of the act and of the ordinance cos permits and endeavors to enforce a rule of liability greater, or a lien different, from that applied in the case of the ordinary private properly owner, or a rule of assessment and collection at variance with the general plan of the city, is discriminatory and denies to the company that impartial and complete protection demanded by this portion of the constitution. It is insisted that municipalities will be delayed and handicapped in the work of civic improvement, unless the method contemplated in the statute and ordinance referred to is upheld. It may be true, as an old wise wit, saw, or modern instance, that “necessity knows no law.” It is our judgment, however, that the ancient adage should here fail of recognition and application. In the collection of such assessments as are legally made against this street railway, we know of no legal reason why the entire right of *727way should not be levied upon and sold. A right of way is, under its franchise, by nature and inherently one tract or parcel of land, and must of necessity be indivisible, incapable of segmentation, and physically abutting and therefore presumptively benefited by the paving project throughout its entire length and over its entire breadth. It necessarily follows that all steel rails, cross-ties, and an3 and all other fixtures permanently annexed to the realty partake of its nature and are subject. Then, too, the franchise, leasehold, reversionary interests of the particular line may he brought under the hammer. They are the crops growing upon the realty, and should be subject as a part thereof. It seems to be conceded that the crop is poor; insufficiently irrigated by a small stream of five-eent fares in this hot, dry land of competition. At a cost of some $14,000, and with knowledge of the amount, the city paved two or three, blocks of the street abutting on the line for a short distance. Conceding that there is presumptive benefit flowing to a street-railroad company as the result of the laying of pavement, as a matter of fact may we permit ourselves to believe that the benefits in this case are so great that, all of abutting property being insufficient to pay the amount, the city must claim the right to sell a power-house located a half mile from the improvement and in no way connected with the right of way ? If this rule of presumptive benefits is broad enough to work in this ease, why not in the ease of a private landowner ?
In summing up and concluding, I will state: The rule is generally recognized that “in no event is there a personal liability for improvement assessments in the absence of statutory authority:” 44 C. J. 877, § 3586. In some States personal liability may be set up and enforced by statute. 44 C. J. 877, § 3586. It is evident, however, that this rule rests upon the fact that in those States the assessments are styled “special taxes” and treated as such, and rest upon some special constitutional authority. Attention may be called to the fact that in many States, even where power is given to the legislature by the constitution to authorize local improvements in cities “by special taxation of contiguous propertjr, or otherwise” the courts of appeal have held that this does nob confer upon the General Assembly the power to make of special improvement assessments a personal liability; this on the ground “that such power would, in violation of the principle upon which special assessments *728are upheld, permit the enforcement of assessments against property not specially benefited by the improvement, and would, in case the assessment should exceed the value of the property against which it was levied, operate as a taking of property for a public purpose without compensation.” See 44 C. J. 877, citing decisions of California, Illinois, Kentucky, Missouri, North Carolina, South Dakota, and Virginia.
The Supreme Court of Georgia has held that such improvement assessments are not taxes; that the matter is one of "equivalents,” that is direct benefits; that such assessments are not burdens, but "equivalents,” and are laid for local purposes upon local objects: and that "taxes are imposed on the person; assessments are imposed on the property.” What property? It has repeatedly been held that this means “abutting property.”
Whatever may be the rule in some other States, based upon peculiar provisions of their constitutions, the rulings of their Supreme Courts, and their treatment of such assessments as “special taxes,” the rule in Georgia is too clear for controversy: “Assessments for the improvement of a street are sustained by courts only because of benefits to the particular property [this must mean “abutting property”]; and the executions issued therefor do not run generally against other property of the owner not situated upon the street.” In this case, as the General Assembly is seeking to make a personal liability, in other words a “tax” liability, against the Georgia Power Company, it' is endeavoring to levy a “ special improvement tax,” and in so doing it runs afoul of the tax-uniformity provision of the constitution of this State; and this special act is therefore palpably unconstitutional and void for that reason. The constitution of Georgia does not confer upon the legislative branch of the Government any authority to declare personal liability for street-improvement assessments. Improvement assessments carrying personal and general liability are, and must be, “special taxes.” They run against both' person and property, and pass beyond the definition or spirit of “equivalents.” It is true that the General Assembly may authorize the sale of railroad-tracks or a segment thereof, but plainly this is abutting property in the complete and legal sense. Certainly it may not be inferred that property other than “abutting” real estate may be sold even through legislative sanction.
*729We recognize the rule that "a street-railway company holding a charter and using the streets of a city for the purpose of carrying on its business is in some respects and for some purposes the subject of legislative regulation and control. The rule is that when public highways are made the place of business, a right to regulate, in the interest of the safety and convenience of the other users of the highways and of the preservation of the highways themselves, arises independently of the nature of the business done. Such right of regulation does not carry with it power to make arbitrary classification, which would be violative of the 14th amendment of the constitution of the United States, guaranteeing equal protection ; nor do they legally justify unreasonable exactions or requirements amounting to a deprivation of liberty of property, contrary to the due-process clause of such constitution.” Conceding, for the purpose of the discussion, that there is vested in the legislative branch of the State government power to declare that all property of all corporations or all street-railways in the State of Georgia shall be subject to levy and sale for improvement assessments, whether such property is abutting or not, by what constitutional or other authority may it declare that the property of the Georgia Power Company alone is subject to levy and sale for such purposes when such assessments are made by the City of Decatur ? Would this not be the "arbitrary classification” contemplated by the 14th amendment, or the "unreasonable exaction or requirement” guarded against by the "due-process” clause of the constitution of the United States? Possibly the point is not directly raised in the record, but it has been held on high authority, and seemingly it is a reasonable rule, that "A pergonal judgment can not be rendered against a lessee of the premises, even though the lease provides for the payment by the lessee of all assessments upon the property.” See 44 C. J. 879, § 3587. Here we have the case of an admitted lessee and a personal judgment for an improvement assessment made by the City of Decatur.