concurring specially. I concur in the judgment of reversal, but not fully in the opinion.
The act of 1919 as amended by the act of 1924, in question, if constitutional, discriminates in favor of the abutting real-estate owner against the railway company, and confers power broader than is expressed in the opinion, for the collection of the paving assess*730ment. The act, after giving full power to the city to pave, contains this provision: “and any street-railroad company or other railroad company having a track or tracks running along or across the streets, alleys, lanes, squares, or public places of said city where so improved shall be required to pay the actual cost in full of grading, regrading, paving, repaving, building, rebuilding, and otherwise improving or reimproving such street, alley, lane, square, or public place between their tracks and for two' (2) feet on each side thereof; and in such cases and on such streets, alleys, lanes, squares, or public places where such assessments are made against such street-railroad company or other railroad company, the remaining cost of such improvement shall be assessed against the real estate abutting on the street, alley, lane, square, or public place where so improved; one half of such cost shall be assessed against the real estate abutting on one side of such street, alley, lane, square, or public place, and the other one half of said cost shall be assessed against the real estate abutting on the other side thereof.” Under this act, as against the abutting real-estate owner the city can collect paving assessment only out of abutting real estate, while as to the railway the city may not be confined alone, as held in the majority opinion, to the collection of paving assessment out of the railway property in said municipality, used in the operation of its railwa)1^ system therein, but it may collect same out of any property of the railway whether used in connection with the operation of its railway system in the city or not, and out of airy property of the railway whether located in the city or elsewhere. If the construction of the act as expressed in the majority opinion be correct, then I concur in the same. But I think the act grants greater power than is given by such construction, and also discriminates. Therefore I join Judge Eve in his concurring opinion holding in this case the act unconstitutional. The city may collect for paving assessment, if lawfully made, out of anjr property of the railway company located in the city and used in the operation of its railway system in the city, but it may not lawfully go further,
Since there may be another trial of the case, in which the evidence may not be the same as in the present record, it is not now necessary to decide whether or not the assessment is lawful. Hence I do not concur in the majority.opinion holding that under the facts in the record the assessment is legal, and that under the *731case made the Georgia Power Company is liable for the assessment. If, however, in an appropriate action the assessment should be found lawful, then I am of the opinion that the same may be collected out of any property of the Georgia Power Company, for the reason that under its contract of consolidation the Georgia Power Company agreed to pay all lawful assessments against the Georgia Eailway & Electric Company. The lawfulness of: the assessment depends mainly on the necessity, benefits, and cost of the paving, and whether or not the cost amounts to more than the value of the railway property located within the city and used in the operation of its railway system therein. The law will not permit the city to take the entire property sought to be benefited by the paving, for the cost of the paving. Such would be confiscation, the taking of property without just compensation, which is not permissible. The act in question, if constitutional, confers and was • obviously intended to confer on the city the power to subject for paving costs all the property of the railway, irrespective of its location or uses. The act attempts to give to the city the right to actually subject for paving assessment property other than that within the city, sought to be benefited by the pavement and used in the operation of the company’s railway system therein. Such legislation goes too far, and should not be sanctioned.
Nor do I think the validity of the rate-fixing contract is involved in this case. This contract may be considered on the trial of the case, if suit be brought for the collection of the assessment and the lawfulness of the assessment should be contested, to illustate the benefit of the paving and the value of the street-railway property. This contract and any other fact tending to show the benefit of the paving or the value of the railway property within the city, used in the operation of the railway system therein, would be pertinent to the issue.