Persons, J.
Acting under its charter powers as are conferred by the amendatory acts of the General Assembly (Ga. L. 1919, p. 934; 1924, p. 534), the City of Decatur through its commissioners passed ordinances in conformity thereto in the interest of public travel and street drainage, providing for the paving of East Ponce de Leon Avenue in said city, along and on which are located the street-railway tracks of the Georgia Railway and Electric Company, a corporation, operated under a franchise granted by said City. Said street-railway system was then in the control of and was being operated by the Georgia Railway and Power Company, a corporation, by virtue of a lease for the term of 999 years. In accordance with said authority conferred upon it by the General Assembly, the City of Decatur assessed against the Georgia Railway and Power Company the cost of paving that portion of said street between its tracks and for two feet on each side thereof, which the company refused to pay; whereupon in accordance with said legislative authority the city clerk issued execution against the company, directing the city marshal “that, of the goods and chattels, lands and tenements of the Georgia Railway & Power Co., a corporation of the State of Georgia, you cause to be made, by levy and sale thereof/ the amount assessed as costs of said paving. This fi. fa. was levied by the city marshal on certain land lying in the City of Decatur brit not located on the street improved, and on which is erected a subpower station, as the property of the defendant in ñ. fa. The Georgia Power Company filed with the marshal its 'Statutory claim, which was returned to the superior [701]*701court of DeKalb County for trial. An equitable amendment in aid of said claim was allowed, in which the claimant seeks to establish' its title to the property levied upon, and to avoid the liability of the paving assessment, on the grounds: (a) that the fi. fa. is not issued or proceeding against any street-railway company which has a track running along or across the street paved; (b) that the tracks on said street paved are the property of the Georgia Railway & Electric Co., and not of the Georgia Railway & Power Co.; and that the legislative authority in question confers on the city no right to levy its fi. fa. for said paving on the property of either of those companies, for the reason that the property of the street-railway company located in said street received no benefit from said paving, and only property which is directly benefited by a street improvement can be held subject to the cost of a paving assessment; (c) that if it should be held that such legislative authority confers the power on said city to collect the costs of said paving as assessed out of the street-railway company’s property generally, whether benefited therebjr or not, said charter amendments by1" the legislature providing for the assessing of the costs of said paving, and the ordinances of said city enacted thereunder for that purpose, are unconstitutional and void for the reason that the same are in violation of (1) the due-process clause of the 14th amendment to the constitution of the United States, and of the constitution of Georgia as set forth in the Civil Code (1910), §§ 6358, 6359, (2) the inhibitory clause of the constitution of Georgia against the taking of private property for public use without adequate compensation being first paid, as is set forth in the Civil Code (1910), § 6388, and (3) the uniform-tax provisions of the constitution of Georgia as set forth' in the Civil Code (1910), § 6553. In this amendment it is prayed that the said acts of the legislature amending the charter of said city, and the ordinances passed thereunder by it, assessing said paving, be construed and declared null and void, and that the city be enjoined from enforcing said fi. fa. as well as any proceeding under and by virtue of said paving assessment generally against any of the three companies named above.
The city filed its answer denying the unconstitutionality of the legislative acts, and asserting that by virtue of its charter powers and the ordinances passed thereunder, ordering said paving and [702]*702making said assessment, the fi. fa. on said property is a binding lien thereon as well as upon all the property of the street-railway company owning the tracks on the street paved; that the tracks on said street are the property of the Georgia Railway & Electric Co., but that by virtue of the lease executed by it with the Georgia Railway & Power Co., the operating company, said lessee became bound and liable unto the lessor during said lease for all debts, duties, and obligations of the Georgia Railway & Electric Co., which lease was in effect at the time the street improvements were made, for which the fi. fa. was issued, and the Georgia Railway & Power Co. under that lease was ultimately liable for said assessment; that since the improving of the street the Georgia Power Co., the claimant, has, by virtue of a certificate of incorporation issued by the Secretary of State under the provisions of the Civil Code (1910), §§ 3607-3609, become a consolidated corporation composed of the Georgia Railway & Electric Co., the Georgia Railway & Power Co., and other constituent corporations, under an agreement entered into between said corporations, and as such became “subject to all the duties, liabilities, debts, and obligations of each of the constituent corporations,” the agreement stipulating that “all debts, liabilities, and duties of the constituent corporations shall thenceforth attach to the consolidated corporation and may be enforced against it to the same extent as if the debts, liabilities, and duties had been incurred or contracted by it;” that the effect of said consolidation was to preserve all liens against the properties of the constituent corporations passing under said consolidation to the Georgia Power Co., and in legal effect the Georgia Power Co. is now the Georgia Railway & Power Co. and the Georgia Railway & Electric Co. combined and consolidated; and that the assessment as made is therefore binding on all three of said corporations. Prayer is made that the court, in the exercise of its equity powers invoked by the equitable claim, so mold its decree “to the end that the Georgia Power Co. be required to pay the assessment which is a legal charge against the property which it acquired under said consolidation and constitutes a debt or obligation which by its charter it became liable therefor.” It Is also alleged that because the track of the street-railway company along the street paved in said city is a part of the main line of the street-railway system of the claimant, running from the City of Atlanta through the City of Decatur, it can [703]*703not be levied upon, seized and sold, as it is devoted to the service of the public; and a prayer is made for “a general judgment against the Georgia Power Co., the consqlidated corporation,” and for subjecting to said judgment “any property that formerly belonged to the constituent corporation against which the assessment should have been made which is not devoted to public uses, and against any income from any property belonging to said constituent corporation;” and that the claimant as such consolidated corporation be decreed “liable for the debts and obligations of the Georgia Kailway & Power Co. and the Georgia Railway & Electric Co., and especially the debt or obligation represented by the assessment on which the fi. fa. in this case was issued, and that such assessment should be paid by the Georgia Power Co., and that the judgment be collectible out of any assets of the Georgia Railway & Electric Co. and the Georgia Railway & Power Co., and that the decree shall provide for the collection of said judgment by execution and by such other legal process as may be necessary in order to enforce the payment of said obligations; and that plaintiff have such other and further relief in the premises as it may be entitled to under the principles of law and equity.”
The case went to trial on the pleadings as thus made; and after all of the evidence together with an agreed statement of facts had been introduced, a motion was made by each side for direction of a verdict in its favor. The court directed a verdict against the claimant and in favor of the city, finding that at the time of the improving of the street the Georgia Railway & Power Co., as the lessee of the street-railway system, operated the same, of which the track on the street paved is a part, under which lease the lessee assumed the payment of said paving assessment; and that subsequently the Georgia Power Co. became a consolidated corporation composed of said constituent companies and their assets and franchises, and as such assumed “all debts, liabilities, and duties of said companies;” that said assessment had been made at the time the consolidation agreement was made, and the Georgia Power Co. assumed and is liable for the assessment upon which the fi. fa. was issued; that said assessment should be paid by the said Georgia Power Co.; and that the City of Decatur have judgment against the Georgia Power Co. in the sums of $13,444.66 principal and $2,771.09 interest. ' On this verdict decree was rendered for said sums, including costs, directing [704]*704“that said judgment shall be enforced against any property or assets of the Georgia Railway & Electric Co. and the Georgia Railway & Power Co., received by the Georgia Power Co. from any of the assets or properties of the Georgia Railway & Electric Co. and the Georgia Railway & Power Co., received by the Georgia Power Co. under said consolidation agreement, with the rank and priority of payment next in point of dignity to liens for taxes.” The Georgia Power Co. filed exceptions pendente lite and a motion for new trial, assigning error on the grounds set forth in the amended equitable plea in aid of its claim, and on the further grounds that (a) the verdict as directed was not germane to the issues in the claim case, which were whether or not the property levied upon is subject to the execution in question; and (b) that the issues in the claim case could not be so changed as to authorize the rendering of a general verdict of liability and a judgment therefor against the claimant. The motion for new trial was overruled, and the claimant excepted.
That the General Assembly of this State has the power to authorize a municipality therein to pave its streets and to assess and enforce the cost and collection of a special tax assessment against a street-railway company whose tracks occupy its streets, for the cost of paving the area occupied by its tracks and for a reasonable distance outside of its tracks located in a street ordered paved under such legislative authority, is established law. City of Atlanta v. Gate City St. Ry. Co., 80 Ga. 276 (4 S. E. 269); Georgia Ry. &c. Co. v. Atlanta, 153 Ga. 335 (113 S. E. 420); Georgia Ry. &c. Co. v. Decatur, 29 Ga. App. 653 (116 S. E. 645). The power of the legislature over the subject of special taxation against street-railway companies for local improvements is generally recognized, and is stated as follows: “It is generally held that the right of occupancy of a portion of the streets of a municipality by a street-railway corporation is property which' is benefited by a street improvement to the extent of the space occupied by its road-bed and tracks, which renders the same liable for its proportionate share of its costs, just as the abutting-property owner is liable. The road-bed of a railway company in a public street has in a number of instances been declared subject to a special assessment, and the same is true of the franchise and right of way of an elevated railroad company. The easement of a street-railway company in a public street has been [705]*705held to special assessment under a statute providing that any street-railway company should be liable for the cost of paving the portion of the street occupied by.it, and that such cost should be a lien upon its property.” 25 R. C. L. 120, § 36; 44 C. J. 532, § 2894; Storrie v. Houston Ry., 92 Tex. 129 (46 S. W. 796, 44 L. R. A. 716); City of Shreveport v. Prescott, 51 La. Ann. 1895 (26 So. 664, 46 L. R. A. 193); Chicago v. Baer, 41 Ill. 306; Chicago City v. Chicago, 90 Ill. 573 (32 Am. E. 54); Cicero &c. St. R. v. Chicago, 176 Ill. 501 (52 N. E. 866); Kuehner v. Freeport, 143 Ill. 92 (32 N. E. 372, 17 L. R. A. 774); Freeport St. Ry. Co. v. Freeport, 151 Ill. 451 (38 N. E. 137); Lightner v. Peoria, 150 Ill. 80 (37 N. E. 69); Washington &c. R. Co. v. Dist., 108 U. S. 522 (27 L. ed. 912, 2 Sup. Ct. 865); West Chicago v. Street E., 178 Ill. 339 (53 N. E. 112); Parmalee v. Chicago, 60 Ill. 267; City of Durham v. Durham Pub. Serv. Co., 182 N. C. 333 (109 S. E. 40); Durham Pub. Serv. Co. v. Durham, 261 U. S. 149 (67 L. ed. 580, 43 Sup. Ct. 290).
The General Assembly by virtue of acts approved August 18, 1919, and August 12, 1924 (Gá. Laws 1919, p. 934; 1924, p. 534), amending the charter of the City of Decatur, conferred full power and authority upon said city, in the discretion of its commissioners, to pave any street therein, and, when street-railway tracks are located in a street ordered paved, to assess the cost of paving that portion of the street between and for two feet on each side of said tracks against the company owning the tracks and its property located in said municipality, and used in the operation of its street-railway system therein.
It is not contended that the authorities of the City of Peeatur did not fully comply with the provisions of said charter as amended in the enacting of the ordinance requiring the paving of East Ponce de Leon Ave., therein, and in ordering the levying against the street-railway company of the cost of paving that portion of the street between and for two feet on either side of its tracks; but appellant insists that the city acting under said charter as amended can not enforce the collection of the paving costs assessed against the railway company’s property generally, for the reasons (1) that the property of the company located on the said street received no benefits from the improvements, and (2) that the only property of the company that can be held liable for the paving assessment, if [706]*706any, is that which is located on the street improved. The power of determining the benefits to be received by the property of the street railway company from local improvments is a legislative one; and in this case, by virtue of said charter as amended, this authority is vested solely in the city commissioners, who in the exercise of said authority determined the same, and the question of benefits by virtue of said improvements to the property of the railway company will not be inquired into by the courts unless it is made to appear that there has been an arbitrary abuse of such authority. Georgia Ry. & Electric Co. v. Atlanta, 144 Ga. 722 (3) (87 S. E. 1058); Speer v. Athens, 85 Ga. 49 (3-a) (11 S. E. 802, 9 L. R. A. 402); Georgia Ry. &c. Co. v. Decatur, 137 Ga. 537 (73 S. E. 830, 40 L. R. A. (N. S.) 935); L. & N. R. Co. v. Barber &c. Co., 197 U. S. 430 (25 Sup. Ct. 466, 49 L. ed. 819); Kansas City So. R. v. Road Imp. Dist., 266 U. S. 379 (69 L. ed. 335, 45 Sup. Ct. 136); Branson v. Bush, 251 U. S. 182 (64 L. ed. 245, 40 Sup. Ct. 113); Hancock v. Muskogee, 250 U. S. 454 (63 L. ed. 1081, 39 Sup. Ct. 528); Milwaukee Electric E. &c. Co. v. Wisconsin, 252 U. S. 100 (64 L. ed. 476, 40 Sup. Ct. 306); City of Durham v. Durham Pub. Serv. Co., supra; Durham Pub. Serv. Co. v. Durham, supra.
The burden is upon the appellant who attacks the exercise of such authority in ordering the improvement, to establish the fact that the same was abused. Kansas City So. R. Co. v. Road Imp. Dist., supra. -Can it be said that the appellant has successfully carried tliis burden? What is the proof offered in support of the attack? The record discloses that when the city decided to order the paving in question, due notice was given to those concerned thereby, as is provided in the amendatory acts, and that the Georgia Railway & Power Co., the lessee of the railway franchise and system in said municipality, the same being owned by the Georgia Railway & Electric Co., filed, through its president Mr. Arkwright, a written protest against the assessing of any portion of the -costs of the proposed paving against either the owner company or the leasing company, for the reason that his company was operating the railway line from Atlanta to Decatur under a rate fixed by contract with said municipality, dated March 3, 1903, limiting the rate of fare from and to said municipalities to a charge of five cents for each full fare, on payment of which one transfer ticket is given; and that it is impossible to earn operating expenses [707]*707thereunder; and that if any portion of said paving costs are assessed against either of said companies, the same would amount to a confiscation of their property. Tn support of this protest he offered on behalf of said companies to surrender to the City of Decatur the franchise which it had granted to the railway company and under which the same was being operated. On the trial of this case Mr. Arkwright, who had also become the president of the Georgia Power Co., the claimant, testified that so long as said, rate contract is of force it is impossible to operate said railway line at a profit. He again offered to surrender to said municipality said franchise; and inasmuch as the total value of the railroad tracks of the street-railway company in said municipality was not equal to the amount of the paving assessment levied, he offered also to surrender said tracks to the city. He testified that the paving of the street did not benefit any property of the railway company thereon, or elsewhere located in said city; that the paving of the street in question is a public benefit.
The record discloses that for several years the street-railway companies operating the railway system under said franchise in the municipality of Decatur have resorted to various efforts seeking to abrogate the terms of said rate contract without the consent of the municipality, and to srrrrender the franchise requiring the operation of said railway system, all of. which efforts this court has held to be illegal, rendering therein repeated decisions adjudicating the validity and binding effect of said contract on the railway company, and requiring it to render the public service imposed upon it by said franchise. These several cases are reported as Georgia Ry. &c. Co. v. Railroad Commission, 149 Ga. 1 (98 S. E. 696, 5 A. L. R. 1); Georgia Ry. &c. Co. v. Decatur, 152 Ga. 143 (108 S. E. 615); Georgia, Ry. &c. Co. v. Decatur, 153 Ga. 329 (111 S. E. 911); Georgia Power Co. v. Decatur, 168 Ga. 705 (149 S. E. 32). In sustaining the decision of this court in the case reported in 153 Ga. 329, the Supreme Court of the Hnited States held: "Where a street-car company has made a binding contract with a municipality for rates, the Supreme Court of the Hnited States will not consider the question whether or not they are confiscatory.” Georgia Ry. &c. Co. v. Decatur, 262 U. S. 432 (5) (43 Sup. Ct. 613, 67 L. ed. 1065). On appeal of the Georgia Power Co., the Supreme Court of the Hnited States, in a decision delivered May 19', 1930, [708]*708affirmed the decision of this court (168 Ga. 705), denying unto the Georgia Power Co. the right to surrender unto the City of Decatur tlie charter granted by it to the Georgia Ry. & Electric Co. to operate the street-railway line in question on the ground that said railway can not be operated under said rate contract without a loss and therefore amounts to a confiscation of its property, in violation of the 14th amendment of the constitution of the United States; the court holding that the appellant company is bound under its contract to operate said street railway for the duration of the charter of the Georgia Railway & Electric Co., saying: “ There is nothing in the ordinance or contract to indicate a purpose to terminate the obligation of the carrier in respect of the 5-cent fare while it continues to operate the line as a part of its system under its present franchise, and the contract will continue to bind petitioner during the period intended by the parties, unless earlier altered by them or relaxed by State authority. The losses attributable to the stretch of track in question and the 5-cent fare are immaterial while the rate contract continues.” Georgia Power Co. v. Decatur, 281 U. S. 510 (50 Sup. Ct. 369, 74 L. ed. 533).
In Columbus Ry. &c. Co. v. Columbus, 249 U. S. 399 (39 Sup. Ct. 349, 63 L. ed. 669), wherein the street-railway eompány sought to relieve itself of a rate contract entered into with the City of Columbus, Ohio, without the consent of the city, and also to surrender its franchise to the city, because it was complained that war conditions and increase of labor costs were causing the company to operate at a great loss, the court said: “If a party charges himself with an obligation possible to be performed, he must abide by it unless performance is rendered impossible by the act of God, the law, or the other party. Unforeseen difficulties will not excuse performance. Where the parties have made no provision for a dispensation, the terms of the contract will prevail. We reach the conclusion that the district court was right in holding that this bill presented no grounds absolving the company from its contract, and justifying the stxrrender of.its charter.” See also Durham Pub. Serv. Co. v. Durham, supra. Under the proof submitted, it is obvious that if there is any hardship worked on the street-railway company by the exercise of the charter powers ordering said paving, it is not due to any arbitrary abuse of the legislative authority by the city commissioners or the municipal authorities [709]*709in determining that the paving of the street is a public benefit, as well as a benefit to tire property of the railway company, but is necessarily the result of the operations of the rate-fixing contract which the street-railway^ company sought and voluntarily entered into because it 'believed it to be to its interest to do so. If this act has proved to have been a mistake in the light of subsequent events, it in no wise relieves the railway company from discharging the legal duty imposed upon it of paying its just proportion of paving the street occupied by its tracks by virtue of the easement granted unto it by the municipality. The municipality of Decatur is in no wise responsible for the operations of the railway system under the terms of the contract, as it is bound thereby whether the earnings of the company operating thereunder increase or diminish. The municipality could not be heard to insist upon a reduction of the rates fixed by the contract if the operations thereunder had resulted in great earnings over operating costs by the company. If it were not for the existence of this rate-fixing contract, the railway, company would have no cause to complain of a loss in operating expenses, as it could then do doubtless what it'has already done in other cities wherein it operates street railways, viz., apply to the Public Service Commission of the State for authority to increase its fares over said line so as to permit such' earnings thereon as would compensate it as a return on its capital investment and costs of operating expenses, which necessarily includes the burden of a paving assessment against its property, which said commission would have the power to grant on proper showing. Code, § 2662 (8 Park’s Supp. 1922, and Michie). It is worthy of notice that the record in 'this case shows that there has been an increase of travel over said line, resulting in an order of the Public Service Commission requiring the inauguration of additional' facilities to accomodate the traveling public during rush hours, while the court ,. will take judicial cognizance of the large increase of population in the City of Decatur and its environments since the creation of the rate-fixing contract. Doubtless, were it not for the existence of the rate-fixing contract, the power company would find its line from Atlanta to Decatur to be one of the best paying divisions of its extensive railway system throughout the State.
Can the contention of: the appellant that the lien for the paving-assessment can not be enforced personally or generally against the [710]*710street-railway company and its property in Decatur used by it in the operation of the street-railway system therein, but can only be enforced against its property located on the street which was paved, be sustained? The legislature, by virtue of said acts amending the charter of Decatur, expressly impressed all liens for paving assessed against street-railway companies upon the said companies and all of their property located in said municipality, used in the operation of its street-railway system therein, which we think it had the power to do. The power of a municipality to hold a street-railway company liable generally and personally for the payment of a paving assessment levied against it under legislative authority was expressly held by this court in City of Atlanta v. Gate City St. Ry. Co., 80 Ga. 216 (supra). In that case the railway company refused to pave three feet of the street outside of the tracks of the company, as the charter and ordinance of the City of Atlanta required it to do; and the city made an assessment against the railway company for the costs thereof, and in default of payment issued its execution therefor personally against the company, which sought to enjoin its enforcement, which relief the trial court denied, and the judgment on appeal was affirmed. To like effect is the decision in City of Atlanta v. Georgia Ry. &c. Co., 153 Ga. 335 (supra), in which this court is a well-reasoned decision construed charter powers very similar to those now under review as being of binding force; and a mandamus absolute was affirmed, requiring the railway company to pay the costs of certain paving assessments which it sought to evade. In considering the charter powers of Decatur as amended by the act of 1919, it was held by the Court of Appeals, in Georgia Ry. &c. Co. v. Decatur, 29 Ga. App. 653 (4) (116 S. E. 645), that “it must be held that the jDower to levy for assessments is not thereby limited to property abutting on the street improved, but that the act confers the virtual equivalent of express authority to levy upon some other property within the municipality.”
The power of the legislature to create a lien upon the property generally of the street-railway company for local assessments is stated as follows: “The legislature lias the power to declare an assessment for paving of that portion of the street between the tracks of the street-railway company to be a blanket lien on the property of the company as a security for its payment. . . Where a railroad right of way is subject to an assessment, it may [711]*711be subject to the lien thereof, regardless of whether or not the right of way can be sold under execution to satisfy a judgment for enforcement of the assessment.” 44 C. J. 802, § 3409; 25 R. C. L. 174, § 87; Pittsburgh &c. Ry. Co. v. Fish, 158 Ind. 525 (63 N. E. 454); Louisville &c. Ry. Co. v. State, 8 Ind. App. 377 (35 N. E. 916); Railway Co. v. Boney, 117 Ind. 501 (20 N. E. 432, 3 L. R. A. 435); Louisville &c. Co. v. State, 112 Ind. 443 (24 N. E. 350). While the legislature has empowered the municipality to impress its lien for the cost of the paving assessment ordered levied against the street-railway company on all of its property in said city, used by the company in operating its street-railway system, and to issue an execution therefor to be collected by a levy and sale, yet it did not expressly authorize it to enforce its lien by a levy and sale of any particular part of its tracks. Without such express authority from the legislature, a levy and sale of a portion of said tracks would be in violation of the public policy of this State. In Georgia Ry. &c. Co. v. Atlanta, 144 Ga. 722 (supra), it was held: “A segment of a street railway located on its own property abutting on a street upon which public improvements have been made, and against which it is sought to enforce an assessment, is, in the absence of statutory authority, not liable to levy and sale, so as to carve a segment out of the railroad track upon which the levy is made.” Also, in Georgia Ry. &c. Co. v. Decatur, 137 Ga: 537 (supra), it was said: “A majority of the authorities are to the effect that the track, rails, and ties of a railroad company can not be sold by piecemeal, in the absence of express legislative permission. The reason of the rule is that a railroad company is a quasi-public institution, and owes a duty to the public to discharge the objects of its franchise, and a compulsory sale of a fragment of its track will prevent its discharge of this duty.” To like effect is the following authority: “Such property of a railroad corporation as is essential to the operation of the road will not be ordered sold by piecemeal to satisfy a statutory lien for street improvements, but in lieu thereof the court has power to render a personal judgment against the corporation, to be collected as. ordinary judgments are collected.” Pittsburgh &c. Ry. Co. v. Fish, supra. See also 25 R. C. L. 174, § 87; 44 C. J. 877, § 3585.
When the Town of Decatur granted the franchise to the street-railway company, authorizing the use and occupancy of its public [712]*712streets for the operation of its railway tracks, it did so on the theory that its citizens would enjoy the benefits of adequate transportation facilities thereon, and that the company would continue to serve the public; and therefore it has resisted the efforts of the railway company to dismantle its tracks and discontinue said service, because it entered into the rate-fixing contract; and until the legislature expressly empowers the municipality to lévy upon and sell a segment of the company’s tracks for the purpose of enforcing the collection of a local paving assessment, it can not do so. Neither can the street-railway company, by its refusal to pay the lawful assessments ordered levied against it, force the municipality to levy upon and sell the track located on the street paved, thus disintegrating its street-railway system therein, in order that it may be relieved of operating said system under the terms of the rate-fixing contract.' We therefore hold that said paving assessment levied by the City of Decatur against the street-railway company’s property, under said legislative acts amending the charter of said city, is a binding lien upon all of the property of the Georgia Eailway and Electric Co., owned by it within said municipality, and used in the operation of its street-railway system therein, under the facts of this case, at the time of the issuance of the execution therefor.
The appellant insists that the legislature had no authority to empower the City of Decatur to collect its paving assessment against the property generally of the street-railway company; and that in so far as this power is conferred, the legislative act and the ordinance enacted by the municipality are unconstitutional in that the exercise of such power amounts to a confiscation of its property in violation of the due-process and the equal-protection clauses of the 14th amendment to the constitution of the United States, and as embodied in the constitution of Georgia. Code, §§ 6358, 6359. In granting authority to the City of Decatur to pave its streets, and, when there is a street or other railway track located therein, to assess the cost of paving that portion of the track between and for two feet on either side of said tracks generally against the company owning said tracks and its property in said city, used in the operation of its street-railway system therein, the exercise of such authority is of the same binding force and effect as though made by the General Assembly itself. “Whether the entire amount, or a part only, of the costs of the local improvement [713]*713shall be imposed as a special tax upon the property benefited, and whether the tax shall be distributed upon a consideration of the particular benefit to particular lots, or apportioned according to frontage upon streets, their values, or their area, are matters of legislative discretion, subject of course to judicial relief in cases of actual abuse of power, or of substantial error in executing it.” Hancock v. City of Muskogee, 250 U. S. 454 (supra); Kansas City So. Ry. v. Road Imp. Dist., 266 U. S. 379 (supra). There is a broad distinction between the fee-simple title of an individual owner of property abutting on a street improved, and the easement’ of a street-railway company under its franchise to occupy a public street in a municipality with its right of way, tracks, rolling-stock, and other property which go to constitute a street-railway system. The rule with respect to collecting paving costs assessed against the property of an abutting-property owner by subjecting only the abutting property itself on the street improved, as this court held in Brumby v. Harris, 107 Ga. 258 (33 S. E. 49), is not impaired by the legislative acts in question, but is expressly preserved thereby. By no stretch of the legislative imagination could it be said that other property of an owner in- fee not located on the street improved would be benefited by such local improvement; but the property rights of a street-railway company properly come under an entirely different classification, to which a separate rule of assessment must be applied in order to preserve its property to the public use to which it is dedicated under its franchise. All of the property of a street-railway company is essential to the discharge of its duty as a public-service corporation. Each and every line of tracks on the different streets of the municipality belonging to the company, and its appliances, machinery, and buildings, used in the operation of its cars upon its tracks, are integrated in the whole system; and it is not unreasonable for the legislature to say that a local improvement which benefits one division of its tracks also benefits the entire street-railway system of its tracks.
In the case of Durham Pub. Serv. Co. v. Durham, 261 U. S. 149 (supra), in which a paving assessment had been levied by the City of Durham for paving the area covered by tlie companj^s tracks on a street which the city ordered paved, the court said: “The power of the legislature to make reasonable classifications and to impose a different burden upon several classes can not be denied. There [714]*714are obvious reasons for imposing peculiar obligations upon a railway in respect to streets occupied by its tracks. The facts and circumstances disclosed by the present record are not sufficient to justify us in overruling the judgment of the State court, which held that the assessment was not the result of arbitrary or wholly unreasonable legislative action.” It must therefore be assumed, unless there has been an abuse in the exercise of the legislative power granted to said city, or the legislative authority granted is wholly unreasonable, that there is no confiscation of the railway company's property under said charter powers, in violation of the constitution of the United States or the constitution of the State of Georgia. The city has levied the paving assessment under the legislative authority conferred upon it; and if the railway company is unable to pajr the amount thereof because it is unable to earn anything over and above its operating expenses, the record in the. casé does not disclose that it is because of any abuse of legislative authority by the municipal authorities, or wholly unreasonable legislative action, but solely because the company is operating under a rate-fixing contract of which it was entirely cognizant at the time it purchased the street-railway system in said city, which is valid and subsisting, and the inhibitions of which can not be pleaded as an excuse for failure to meet the legal exactions impressed upon the property thus acquired. Columbus Ry. &c. Co. v. Columbus, 249 U. S. 399 (supra); Durham Pub. Serv. Co. v. Durham, 261 U. S. 149 (supra). And especially is this true when no one can say with certainty that the costs of operating the street-railway line in question will always exceed the income to be derived therefrom during the existence of the rate contract, or that costs of operation will not be less in the future than at present.
In affirming the decision of this court in Toombs v. Citizens Bank, 169 Ga. 115, in which the constitutionality of the legislative act then under consideration was attacked, the Supreme Court of the United States said: “In assailing the constitutionality of a State statute, the burden rests upon- appellant to establish that it infringes the constitutional guarantee which it invokes. If the State court has not otherwise construed it and it is susceptible of an interpretation which conforms to the constitutional requirements, doubts must be resolved in favor of, and not against, the State.” Toombs v. Citizens Bank, 281 U. S. 643 (50 Sup. Ct. 434, [715]*715L. ed. ), citing Corporation Commission of Oklahoma v. Lowe, 281 U. S. 431, 50 Sup. Ct. 397, 74 L. ed. 517; South Utah Mines &c. v. Beaver County, 262 U. S. 325, 331 (43 Sup. Ct. 577, 67 L. ed. 1004). We therefore hold that the acts of the legislature amending the charter of said city, and the ordinances passed thereunder by the municipal authorities ordering the levying of the cost of said paving assessment against the street-railway company and its property located therein and used by it in the operation of said street-railway system, áre not violative of the constitutional provisions cited above. Neither are they in violation of par. 1 of sec. 3 of art. 1 of the constitution of Georgia, against the taking of private property for public use without paying adequate compensation therefor (Code, § 6388), as that provision relates to the exercise of the power of eminent domain; whereas the levying of any,assessment for a local public benefit is imposed as a special tax in the exercise of the police power of the State. Neither do they violate par. 1 of sec. 2 of art. 7 of the constitution of Georgia, which provides a uniform system of taxation for the general support of the government (§ 6553). Hayden v. Atlanta, 70 Ga. 817; Speer v. Athens, supra; Lanahan v. Rome, 136 Ga. 398 (71 S. E. 770); Georgia Ry. &c. Co. v. Atlanta, supra; Louisville &c. R. Co. v. Barber, supra; Kansas City So. Co. v. Road Imp. Dist., supra; Branson v. Bush, supra; Columbus Ry. &c. Co. v. Columbus, supra; Durham Pub. Serv. Co. v. Durham, supra.
Having held that the paving assessment in question is, because of said legislative acts, a binding lien in favor of the City of Decatur upon all of the property belonging to the Georgia Railway & Electric Co., owned and located in said municipality, and used in the operation of its street-railway system therein, and that the collection thereof is subject to judicial enforcement, it is also necessary to decide to what extent, if any, the Georgia Railway & Power Co. and the Georgia Power Co. have become bound for the payment of the amount of said assessment. According to the agreed statement of facts in this case, it is admitted that the Georgia Railway & Electric Co. owned the franchise granted by the municipality of Decatur, under which the street-railway system therein is operated, and of which the tracts laid on East Ponce de Leon Avenue are a part, all of which, together with all of the other property of said company located in said city, was leased by said owning company [716]*716on January 1,1912, to'the Georgia Railway & Power Co., for a term of 999 years; and that said lessee was in control of and operating said railway system at the time the paving of said street was ordered by the municipality. . The portion of the lease with' respect to the undertakings of the lessee, as regards the assuming of the debts, assessments, and liabilities of the lessor generally, is as follows: “The lessee covenants that it will pay, satisfy, and discharge, as the same shall become due and payable, all taxes, rates, charges, licenses, and assessments, general and special, ordinary and extraordinary, of every nature and description which have been or may be lawfully imposed or assumed during the continuance of this lease in any way upon the lessor or upon the lessee, either with reference to the capital stock or income of the lessor, or to the property, earnings, contracts, rights, priviléges, or franchises hereby demised, or to the sum of money payable by the lessee hereunder to the shareholders of the lessor or otherwise; and also that it will pay all sums of money which the lessor now may be or hereafter become liable to pay by law, contract, or otherwise, for the possession, enjoyment, or perpetuation of any of its rights, powers, privileges, or franchises; said payments to be made as the same become due to the officers or other persons entitled by law to receive the same. . . And if the lessee shall desire to resist by legal proceedings the payment of any tax or assessment, and shall so notify the lessor, and the lessee shall commence such legal proceedings in good faith, the lessor shall not pay, nor shall the lessee be obliged to pay, any such tax or assessment until 30 daj^s after the final adjudication thereof. . . The lessee hereby assumes all the contracts and other obligations of the lessor, and covenants that it will pay all the indebtedness of the lessor shown by its books and records, and also covenants that it will assume and pay all other debts, obligations, and liabilities both present and future of the lessor/'’ It is clear that under this contract the Georgia Railway & Power Co. assumed and became bound for the payment of any paving assessment legally due by the lessor to the City of Decatur.
Subsequently to the levying of the paving assessment against the lessee on June 21, 1926, an agreement was entered into on November 16, 1926, between the Georgia Railway & Electric Co., the Georgia Ry. & Power Co., and other quasi-public service corporations, for the consolidation of all their assets, including'the railway sys[717]*717tem and franchise located in said municipality, under the provisions of the- Civil Code, §§ 2607, 2608, 2609, into a consolidated corporation, viz., the Georgia Power Co., which agreement was effected by the filing>of the same with the Secretary of State and the applying for a charter of incorporation, which was issued by said official on February 25, 1927, for a period of 101 years; said consolidated corporation thereby taking over the title, possession, and control of all the assets of said constituent corporations, including the franchise and property of the railway system in Decatur. The consolidation agreement provided in part as follows: “Then and thereafter the consolidated corporation shall be possessed of all rights, privileges, powers and franchises as well of a public as of a private nature, and be subject to all the duties, liabilities, debts and obligations of each of the constituent corporations participating in this joint agreement; and thereupon the corporate franchises, entity and existence of the constituent corporations shall pass to and be consolidated into the consolidated corporation, and the consolidated corporation shall be fully vested therewith, and the corporate existence of the constituent corporations shall cease except as consolidated into the consolidated corporation, or as may be requisite for carrying out the purposes of this joint agreement . . and all debts, liabilities and duties of the constituent corporations shall thenceforth attach to the consolidated corporation and may be enforced against it to the same extent as if said debts, liabilities and duties had been incurred and contracted by it.” It would be difficult to find more comprehensive and emphatic language in a contract assuming the liabilities of the constituent corporations; but in effecting said consolidation agreement thereby assuming the lawful debts and obligations of the constituent corporations, said agreement merely incorporates therein the provisions of the Code, § 2609, with respect to such a consolidation agreement, “that such purchasing or consolidating corporation shall thenceforth constitute a corporation by the name provided in said agreement; and thereafter such purchasing or consolidated corporation shall be possessed of all the rights, privileges, powers, and franchises, as well of a public as of a private nature, and be subject to all the duties and liabilities, debts and obligations, of each of the corporations participating in such agreement.” The Georgia Power Co., as such, is therefore liable unto the City of Decatur for the amount [718]*718of saicl paving assessment as is evidenced by its lien therefor, and which may be enforced by appropriate legal proceedings. See Mobley v. Hagedorn Co., 168 Ga. 385 (147 S. E. 890); City of Kinston v. Atlantic etc., 183 N. C. 14 (110 S. E. 645); Broad River Power Co. v. South Carolina, 281 U. S. 537 (50 Sup. Ct. 401, 74 L. ed. 527).
“When any sheriff or other officer shall levy an execution or other process on property claimed by a third person not a party to such execution, such person, his agent, or attorney shall make oath to such property.” Code, §. 5157. “Our claim laws are permissible, and not mandatory.” Whittington v. Wright, 9 Ga. 23 (3). “The claim laws give to owners a cumulative remedy. They do not abrogate or supersede remedies which existed before.” Bodega v. Perkerson, 60 Ga. 516 (2), 519; Sears v. Bagwell, 69 Ga. 429 (2). “Our claim laws are peculiar to our State. . . They are In the nature of equitable proceedings. The plaintiff in execution asserts, by his levjr, the liability of the property to pay his judgment. The claimant alleges title; and the issue is, is the title of the claimant good against the judgment.” Williams v. Martin, 7 Ga. 377, 380. “A claim is really an intervention authorized by statute in a proceeding to which the claimant is not a party, and therefore a claim partakes of the nature of an equitable proceeding. . . It follows that when the progress of an execution is stopped by a claim and the proceeding is converted into a quasi-e'quitable proceeding, either the plaintiff in execution or the claimant can, by way of amendment to the issue thus joined, introduce, in aid of their respective demands, any equitable matter germane to the issue, which is whether or not the property is subject to the execution. . . The plaintiff in execution in a claim case may bring an independent equitable petition in aid of his levy, and set up any matter which would make the enforcement of his execution legal and proper. And lie can likewise offer an amendment in the claim case and set up any matter which is germane to the issue, or which tends to show that the property is subject to the execution.” Ford y. Holloway, 112 Ga. 851, 852 (38 S. E. 373). To same effect see Myers v. Warrenfells, 153 Ga. 648, 653 (113 S. E. 180). In Cox v. Cox, 48 Ga. 619, it was held, that, while equitable amendments may be filed in a claim case, “the equities set up must go to illustrate the issue, to wit, the authority of the sheriff to, make [719]*719the levy. They must show that the land is subject to the lien oE the judgment on the part of the plaintiff; or it: put on the claimant, they must go to show that the land is not subject;” and that an attempt to enlarge the issue by an amendment seeking otherwise to subject the land levied on, because of an additional liability, would not be germane to the issue formed under our claim laws, and therefore can not be allowed. It was held, in Bryant v. Simpson, 92 Ga. 307 (18 S. E. 547), that the question of the personal liability of the claimant could not be raised and decided in a claim case, as the sole question at issue is whether or not the property levied upon is subject to sale under execution. In Hardman v. Cooper, 107 Ga. 251 (33 S. E. 73), this court held, where an execution against one in his individual capacity was levied upon land to which the defendant as a legal representative of a deceased person filed a meritorious claim, that it was not allowable for the plaintiff in execution to file an equitable amendment alleging that a portion of the debt embraced in the execution was due by the deceased person, and thereby obtain a judgment subjecting the property levied upon to the satisfaction pro tanto of such execution; the court saying that “the claim was interposed to test the question whether the land was subject to the judgment — whether the sheriff had a right to levy the execution on the land claimed and sell it for the debt.” We therefore hold that while equitable pleadings may be filed by way of amendment in a claim case, by either party thereto, such pleadings must be germane to the issue in the case, which is whether the property levied upon is or is not subject to the execution levied; and this rule can not be so extended as to convert the issue in a claim case into a general action where either party may obtain a general judgment in personam, as was done in the instant case. It therefore follows that the direction of the verdict and the entering of the judgment and decree thereon by the court below was error for this reason; and the judgment overruling the motion for a new trial is
Reversed.
Beck, P. J., and Bve, Gardner, and Graham, JJ., concur in the judgment.