dissenting.
I respectfully dissent, in that the city was entitled to dismissal.
The petition sought the declaration that certain special assessments levied against the property were illegal, void, and unenforceable.
The action stems from an ordinance adopted by the Board of Commissioners of Waycross on December 2, 1980 providing for the grading, draining, and paving (with curbs and gutters) portions of certain streets in the city. The city proposed to assess one-third of the costs of such improvements against the real estate abutting each side of the street improved according to its footage on the portion of the street improved. Plaintiffs were assessed for paving in the original amount of $45,450.42.
In their initial petition filed on February 6, 1987 plaintiffs alleged that the city failed to give them notice of the special assessment, in violation of the city code and the due process clauses of the federal and state constitutions; that the imposed assessment grossly exceeded any benefit to the property owned by plaintiffs; that the assessment constituted a taking of property for public use without compensation and a deprivation of their property without due process of law, since the property was not benefited by the improvements to an extent substantially equal to the amount of the assessment; that none of their property was or will be benefited by the alleged improvements for which the assessment was levied, and any conclusion that the property or any portion of it is or ever will be specially benefited by the improvement is merely speculative; and that before the levy of the assessment against them, the paving ordinance was not published as required by the city code so as to give them notice that the improvement was to be paid for partly by special assessment against their real property. Plaintiffs claimed that therefore the special assessments were illegal, void, and unenforceable, and prayed for a declaration of the parties’ legal rights, suit costs, and a temporary restraining order to maintain the status quo so as to prevent the city from suing for recovery of any of the assessment pending adjudication *456of the action.
Following the filing of the city’s motion to dismiss, plaintiffs amended their petition to assert that had the city complied with the notice requirements of the city code that plaintiffs would have had the right to vote down the street improvements as to their property; that on July 8, 1981 the city sent Reid Rental’s president a letter stating that the city commissioners intended to proceed with their normal method of collection with regard to the paving assessments imposed against plaintiffs’ property; and that on August 4, 1981 the city filed an execution against the property. After the court’s denial of the city’s motion, plaintiffs filed another amendment to the action adding a second count to remove cloud from title caused by the filed executions.
The city argues on appeal as it did below that plaintiffs’ petition is properly dismissed because 1) the plaintiffs stood by and saw the improvements completed to their benefit without objecting or availing themselves of their legal or equitable rights until six years after the ordinance was adopted and five years after the paving assessments were made, estopping them by lapse of time and inaction; 2) the trial court does not have the authority to determine whether an ordinance is abstractly valid or invalid; 3) the complaint fails to state a claim in that the allegations affirmatively show that any of plaintiffs’ rights have already accrued and they do not have the risk of taking some future action incident to their rights which, without direction, would jeopardize their interests.
Without reaching the city’s contentions as to why plaintiffs’ petition is defective, the suit suffers from a more basic infirmity. There is no evidence whatsoever that plaintiffs exhausted or even attempted to utilize any administrative remedy for contesting the assessment to the city. See Ga. Laws 1905, p. 1220 et seq., Ga. Laws 1913, p. 1234 et seq., Ga. Laws 1925, p. 1557 et seq. This failure is fatal to the petition for declaratory judgment. See Ledford v. Dept. of Transp., 253 Ga. 717 (324 SE2d 470) (1985); George v. Dept. of Natural Resources, 250 Ga. 491 (299 SE2d 556) (1983).
Furthermore, “[t]he record does not show the existence of any justiciable controversy which would have authorized the trial court to declare the rights of the parties.” Gordon v. Southeastern Fidelity Ins. Co., 182 Ga. App. 790 (357 SE2d 146) (1987). Plaintiffs are not faced with taking any future undirected action incident to their rights which could jeopardize their interests. “ ‘Absent an actual controversy involving palpable insecurity, a court is without power to act by way of declaratory judgment. [Cit.]’ [Cit.]” Id. See also Crowell v. City of Eastman, 182 Ga. App. 489, 490 (1) (356 SE2d 104) (1987).
*457Decided March 18, 1988. Wilson G. Pedrick, for appellant. Terry A. Dillard, Joseph E. East, for appellees.