City Council v. Birdsong

126 Ala. 632

• Court: Supreme Court of Alabama
• Decided: November 15, 1899
• Status: Published

Opinion

HARALSON, J.

This proceeding was instituted and prosecuted in the city court of Montgomery,—sitting-in equity,—under the alleged authority of an act of Feb. 10th, 1887 (Acts, 1886-87, p. 776), entitled “An act to regulate the sale of real estate in the city of Montgomery, Alabama, for unpaid taxes assessed .for municipal purposes.” This act relates exclusively, 'ás shown by its title, to the collection of taxes for municipal purposes, and has no reference to the sale of property to enforce the collection of assessments for street and sidewalk improvements, provided for in another enactment.

The first section of the act provides that “Whenever any taxes or assessments on real property indhe city of Montgomery shall be due and unpaid for thirty days, the clerk of the City Council of Montgomery, may, at any time thereafter file in the City Court of Montgomery, on the equity side of said court, a list of the property on which the taxes or assessments are so in default, describing the same as accurately as may be according to the maps of said city in common use, and with the name of the owner of each separate piece, if known, and the amount of taxes, assessments, interests and costs due for any previous time on each piece separately,” etc. The second section provides “that the register of the City Court shall keep a book in which he shall enter the property so reported to him delinquent, stating each piece separately,” and docketing each case as follows:: “The City Council of Montgomery v. (describing the-property), and against such entry shall note the ownership of said property, and the amount of taxes, assessments, interest and costs due on said property, and shall leave a space for the proper judgment in each case.” The-register is then required to post a notice on the property “stating the facts, that the taxes or assessments, or both, are delinquent, and giving the -amount of the-same, * * * and that proceedings are pending before the city court in equity to have the same sold for non-payment of taxes and assessments, or either, as the-case may be.” Section 3 provides: “That if the taxes or assessments remain unpaid for 30 days, after the posting and service of the notices -above required,, or after the completion of the publication required, the City Council, by its attorney, may-move the said city court for a decree against, said property; the -said court shall thereupon if good cause be not shoion to the contrary, enter upon said docket a decree against said property for the amount of the taxes, assessments, interest, and costs that maybe due on said property up to that time, and a decree for the sale of the property for the non-payment of the same which decree shall be sufficient, if in substance as follows: Due notice having been given, and no cause shoion to be contrary, it is decreed,” etc. Section 4 provides for an appeal to the next term of the Supreme-Court by any person interested in said property, from the decree of the said city court, on giving bond and complying with the terms therein specified for an appeal.. Such appeal it is provided shall be heard on the record and bill of exception's reserved by the party taking the appeal, setting out such of the evidence as he may deem necessary to a fair presentation of his case, and the decree must be affirmed or reversed, as may seem proper to the Supreme Court. An appeal is also provided for the city.

The proceedings in this case were for a decree in said city court, for the collection of assessments for sidewalk and street paving. It followed and complied substantially with the provisions of said act of the 10th of February, 1887, as though the proceedings were for the collection of.taxes levied and sought to be enforced thereunder, for general municipal purposes. The assessment in this case, is in gross “'for sidewalks and street paving,”-—$76.35, interest to April 1, 1898, $2.03, making the total sought to be enforced for both sidewalk and street paving $78.38. A motion to show cause within thirty days why a decree should not be rendered against said property, was duly issued and served on the defendant, according to the directions -of section three ■of said act.

The appellee, the personal defendant in said proceedings, -appeared -in sN.d city court to show cause why said property should not be condemned or sold for the satisfaction of the assessment made against it by the ‘City Council, and, among many grounds, set up the following, which are important to be noticed: “1st. That the city court in equity has no jurisdiction to entertain the proceeding.” 2d. “That said assessment is not authorized by law.” 6th. “As to such gravelling and paving, the assessment is void, because not based upon the benefit to said property, which is in violation of the XIV amendment of the Constitution of the United States, and of section 24 of the Declaration of Rights of the State of Alabama.” 8th. “That the authority claimed for invoking the jurisdiction of the court in the premises is based on the amended charter of said city, which purports to give authority to collect and enforce such assessments as -other taxes are collected; such provision being unconstitutional in thif, that it seeks to amend the provisions of another law by reference to it only, and does not set out the law which is -sought to be amended or extended.”

The City Council contested these grounds by demurring to them, alleging their insufficiency, but the form of objection was unimportant in a proceeding of this character, since -the sole purpose of the objections of the city, iu whatever form presented, were to raise the insufficiency of the grounds on which the defendant in said city court opposed “a decree against (her) said property,” for a sale thereof to pay and satisfy the special assessment against it for street and side walk improvement. We need not here repeat these grounds urged by the city, for they are numerous; nor do we deem it important to notice any -of the objections of the defendant against a decree, nor any of the city’s objections to defendant’s grounds of objection, except sueto as go to the merits of the controversy. All others we regal’d as being without controlling importance, and a waste of legal energy.

The first and second of defendant’s objections to a decree, we infer from the argument of counsel, are the same in substance as the eighth ground, and we treat them as one.

¡Section 34 of the charter of the city of Montgomery (Acts, 1892-93, p. 3(58), provides: “That it shall be lawful for said city council, from time to time, and in such-manner as it may be determined, 'to pave, gravel or macadamize any street, avenue, square, public place or-alley, in whole or in part, within the -corporate limits-of said -city, whenever said city council may deem it necessary or expedient to do so, and for that purpose-said city council is hereby -authorized and empowered to adopt and provide -the means therefor, and to pass all such by-laws and ordinances as may be required -for assessing the property to be benefited thereby, for such amounts as may be fair -and reasonable, not to exceed one-half of the construction thereof, and -of the expense of laying down the same, and also to collect -and enforce such assessments as in the case of city taxes, (Acts of 1886-87, p. 776) ; such assessments to be made on property on both sides of the street, or parts of streets thus improved per front foot, the assessment not t-o exceed in any -one case more than one-fourth of the co-st of the improvement in front of the property taxed, provided that corner property which has been assessed for the improvement of the -street on one front shall not be assessed for the improvement-of the street on the other front, exceeding one-eightli -of the cost of the improvement on -such-front, nor exceeding two dollars and one-half per front foot, but in case of corner property the assessment shall include all of the street in front of the sidewalk on the narrowest front of said property.” This section, it will be noticed, authorizes the city council “in such manner it may be determined, to pave, gravel or macadamize .any street, avenue, square, public place or alley in whole or in part witbin the corporate limits of said city,” -which power had also been conferred by section 7 of the charter. This language includes, of course, any sidewalk as well as street proper. The sidewalks of a city are a part of the street; they are avenues of travel and public places in the city. Section 12 of the charter had already provided “that the city council shall have power to compel owners or tenants of property to keep the sidewalks in front of such property clean and in repair, —and the owners having failed to repair the same, after ;such notice as may be prescribed by ordinance,—at the ■cost of the owner, and tax the cost thereof against the adjacent property, which tax shall be a lien on said property and be enforced and collected as city taxes are collected.” This part of that section has reference to ¡keeping the sidewalks of the city clean and in repair, ■and does not relate to paving the streets or sidewalks. 'The remaining part of the section immediately following the foregoing as a continuous sentence, refers to such pavements viz.: “To require pavements to be laid, and prescribe the kind of pavements to be laid, and to compel the laying of the kind of pavement prescribed, in the streets, sidewalks, alleys and public places of said city, at the expense of the property owner, except as herein provided.” 'This last expression,-—“except as herein provided,”—manifestly refers to the provisions of said section 34 above quoted, prescribing the extent of the owner’s liability to pay for street and sidewalk improvements. The contention of deb ndant is that these provisions of sections 12 and 34 of said charter are unconstitutional, and if so, the city court wds without authority to proceed under them. The alleged unconstitutionality of these sections is based on the grounds that said sections were amendments of the act of 1886-7 referred to in the first paragraph of this opinion, by which they sought to engraft the provisions of said act into the charter, by reference only, offending, as alleged, section 2,‘Art. IV of the State constitution, providing that “each law shall contain but one subject, which shall be cearly expressed in its title,” * * * and that “no law shall be revived, amended or the provisions thereof extended or conferred, by reference to its title only; but so much thereof as is revived, amended, extended or conferred, shall be re-enacted and published at length.” The reference to the former statute was that these assessments for improvements were to be collected and enforced as in casé of city taxes, as provided in said act of 1886-87 ,above -referred to. But this contention is without merit. The matters in the older act referred to in said sections of the charter, are not foreign to, or incongruous with ihe title of the charter. The short title—“To establish a new charter for the city of Montgomery”—is general and comprehensive, embracing every power and right that may be exercised or enjoyed by a municipality, in the administration proper of its governmental affairs. If it were required to set out in the title all the granted powers of the municipality, it would, to no good purpose, greatly impede legislation. Street and sidewalk improvement, and the authority to enforce the same, belong to the ordinary grants of power to municipalities. The subject is no more general than others held to be good, -such as “to adopt a penal code,” “to adopt the common law of England in part,” to “adopt a Code of- laws,” “to establish a police government for the city of Detroit,” etc. Nor does the enactment offend that other provision of said section of the State constitution, touching the revision, amendment and extension of laws. That provision -has been repeatedly held to apply to statutes strictly amendatory, and not to such as are independent and complete within -themselves, although they adopt by reference merely, the provisions of the other statutes on the same subject, there appearing in more enlarged and extended form. Such independent legislation does not fall within the mischief designed to be remedied or prohibited by this provision of the constitution. We have considered this subject heretofore, and so recently, there remains no good reason for enlarging further on it.—State v. Rogers, 107 Ala. 444; Cobb v. Vary, 120 Ala. 263. See also People v. Mehaney, 13 Mich. 481.

The city interposed the objection to the consideration of, defendant’s sixth ground against the proceeding, in substance, that it is too general, and “does not designate in what particular the said assessment.is in violation of the XIV amendment to the constitution of United States, or of section '24 of the Declaration of Rights of the 'Constitution of Alabama.” But we apprehend that while the better course of pleading might require the specific grounds wherein said assessments offended these fundamental provisions of the Federal and State constitutions to be set forth, yet the constitutional objections raised in the way tliey were, were not demurrable for insufficiency for their generality. A similar question arose and was considered in the case of the Bay Shell Road v. O’Donnell, 87 Ala. 376, where the defendant plead the general issue, and, specially, a statute under which he sought to justify the alleged trespass. The plaintiff demurred-to,the special plea on the ground of its alleged unconstitutionality. The court said: “It may admit of doubt, whether the statute is unconstitutional for either of the reasons assigned in the -demurrer ; but, if -the act is bad -on any ground, or a-s being violative of -any provision of the constitution, the act ■of the court in sustaining any of the grounds stated would bear a -striking analogy to the ascription of -a wrong reason fór a -correct decision, in which case the decision would be upheld; and, in any respect, if error at all, would -be without injury to the defendant company, as it could never justify under the void law.”

Section 26 of the charter bestows on the city council the power to pass -ordinances for -the assessment and levy of taxes up-on -all property subject to taxation by the laws of the State. This levy and assessment for general governmental purposes, is referred to in the charter and made a part thereof as assisting the same in providing the -same machinery for the assessments and collection's for street -and -sidewalk improvements. Said section 26 further provides that -assessments when made “shall be returned to the mayor -and by him laid before the city council, and the mayor- shall cause at least ten days’ public notice that such assessments have been made, and tlie time when the city council will proceed to hear 'and determine upon all complaints which may be made against such assessment, and it shall be their duty to correct the errors and supply omissions, and when the same shall have been passed on by the city-council, the said assessments against persons and property shall have the force and effect of judgments,” etc. It is insisted by the city in that the defendant has not shown that she appeared before the council “to correct', the errors and supply omissions,” in the assessment against her property, not for general municipal taxation, but for street and sidewalk improvement, she is nowestopped to raise any question touching the assessment,, or questioning the constitutionality of the law by which such assessment is sought to be justified, and that the-finding of the city council is final and conclusive on her. Perhaps we cannot in this connection say anything more-helpful to a correct understanding and determination of this contention than to quote the words of the learned judge below, who, in his opinion in the case touchingtliis question, said: “The reply to this on the part of' the defendant is, -that notwithstanding the provision giving assessment by the city council the effect of a judgment, yet the same charter requires that the property owner be cited to appear in this court, and clearly recognizes his right to show cause in this proceeding why a decree should not be rendered for the sale of his property. I see no way of escape from the force of this. To hold here, that those provisions of the charter which require notice in this court and an opportunity to show cause mean nothing, would be to eliminate by judicial decision from the act, by virtue of which alone this proceeding is being carried on, its leading and essential features. Yet such would be the effect of holding the-defendant to be estopped by the assessment of the city council. According to the -charter and its assistant act (Act Feb. 10,T887), the assessment of the city council was not, so far at least as real estate is concerned, a final judgment; and a judgment to operate as an estoppel, must be conclusive of the rights of the parties^, must be final.—Freeman on Judg. § 251.”

It must not be understood in what the court said that at meant, nor that we so hold,—for it ivas unnecessary for the question to be there passed -on, or for us to pass on it here,—that an assessment for taxes when passed by the city eouhcil has the force and effect of a final judgment even as to personal property, in 'cases where the ■owners seek relief in the -city court.

Answering another objection raised by the city, the court very correctly held, that there was no reason why the defendant should be required to review the .assessment by certiorari, when -she was informed by the ¡statute that before the assessment could become effective and binding upon her property she would have the ‘-opportunity in this court and in this particular proceeding, of making any defense which could be available to her by certiorari.

The foregoing leads to the remaining and vital questions in the ca-se, whether the statute i-s not void under -the XIV amendment of the Federal constitution, prescribing that no State-shall deprive any person of life, liberty or property -without due process of law, as well as of section 24, Article I of the Constitution of the State, forbidding that private property shall be taken or applied for public use, unless just compensation be first made therefor.

It is not denied, that -such assessments against particular property for street and sidewalk improvement may be constitutionally authorized, to the extent that the property is specially and particularly benefited; but it is insisted that there can be no justification for any proceeding which charges the land of an owner with an assessment for -a public improvement, greater than the "benefits to be received thereby, since such an assessment would be a case of appropriating private property to public uses without just compensation.

Up-on this subject in a recent adjiidicati-on, the Supreme Court of the United States says: “It has been adjudged that the due process of 1-aw prescribed by that amendment (XIV to the Constitution -of the United States) requires compensation to be made or secured to the owner when private property is taken by a State or under i-ts authority for public use.—Chicago B. & Q. R. Co. v. Chicago, 166 U. S. 226, 241; Long I. Water S. Co. v. Brooklyn, 166 U. S. 685, 695. * * ' * The principle underlying special assessments to meet the cost of public improvements is that the property upon which they are imposed is peculiarly benefited, and therefore the -owners do not, in fact, pay anything in excess of what they receive by reason of such improvement. But the guaranties for the protection of private property would be seriously impaired, if it were established as a rule of 'constitutional law, that the imposition by the Legislature upon particular private property, of the entire -cost of a public improvement, irrespective of any peculiar benefits accruing to the owner from such improvements, could not be questioned by him in the courts of the country. It is one thing for the.Legislature to prescribe it as a general rule that property abutting on a street opened by the public shall be deemed to have been specially benefited by such improvement, and therefore should specially Contribute to the cost incurred by the public. It is quite a different thing to lay down as an absolute rule that such property, whether it is in fact benefited or not by the opening of the street, may be assessed by the front foot for' a fixed sum representing the whole cost of the improvement, and without any right in the property owner to show, when an assessment of that kind is made or is about to be made, that the sum so fixed is in excess of the benefits received. In our judgment the exaction from the owner of private property for the cost of a public improvement in substantial excess of the special benefits accruing to him is, to the extent of such excess, a taking, under the guise of taxation, of private property f,or public use without compensation.”—Norwood v. Baker, 172 U. S. 269.

We liaAre indulged this lengthy extract from this case, sustained by many authorities cited and quoted from at length,—Avhich Ave deem it unnecessary to here repeat, —to show the real question there decided, to be here applied, -and which seems to us to be consonant Avith reason :and authority.—See also Mayor v. Klein, 89 Ala 161.

It remains to apply these principles to the provisions of the charter of Montgomery, to ascertain if they violate the Federal and State Constitutions in the manner 'contended by defendant. In the first place said section 26 of the charter gives the city council, in assessing property for such improvements, upon complaint of the owner, the power to “correct the errors and supply the omissions therein.” This provision is very broad. It is a technical construction, as we shall the better understand further on, to limit the errors that may be thus corrected, to an arithmetical calculation of the front-footage of property improved. Without illiberality of construction, the words errors and omissions, may not only be construed to mean errors in actual measurements, but also in the omissions to accord to owners any lights which the council may have intentionally or unintentionally failed to accord to them, in making said assessments under the provisions of the statutes. Section 34 of the charter, as will appear on examination, empowers the council to provide the means for such improvements, and to that end pass 'by-laws and ordinances for assessing the property to be benefited by the improvements of its sidewalks and streets, “for such amounts as may be fair and reasonable.” This certainly excludes the idea of an arbitrary assessment by front-footage without reference to any other consideration, such as the values of and benefits conferred on the property improved. Moreover, the words “for such amounts as may be- fair and reasonable” are immediately followed by the words “not to exceed one-half of the construction thereof (streets and sidewalk improvement) and of the expense of laying down the same,” * * * “such assessments to be made on both sides of the street, or parts of streets thus improved per front foot.” It appears from these provisions that the assessments are to be fair and reasonable; that they are not to exceed (but of course may be less, according to the conditions in each case) one-half of the construction and the laying down of such improvements; that the assessments are to be made with reference to the properties on both sides of the street, and not to that on ppesside merely; that the owners together, in no event are to pay a sum exceeding one-half of the cost thereof, leaving the other half to be jpaid by the municipality; and this provision,—to determine Avliat the OAvners on opposite sides of the street shall pay, adjusting the assessment to each individual OAvner and piece of property,—if folloAved by another, directing that the assessments against each shall be per front foot, “the assessment (against properties of different OAvners on opposite sides of the street) not to •exceed in any case more than one-fourth of the cost of improvement in front of the property-assessed, nor more (in any instance) than ten dollars per front foot of the property taxed,” etc. The front foot measurement here ■proAdded, it Avill thus be seen, is not to ascertain a definite and arbitrary amount by that measurement alone, but the front-footage is mentioned as a means of fair apportionment betAveen properties and their owners, on -opposite sides of the street, it having been specified that-the amounts assessed against each is to be fair and reasonable, and not to exceed against each piece of property, one-fourth of the cost of the entire work. In addition to this, for the greater secirrity of the property owner against unfairness in assessment, it is added, that this ■one-fourth of the cost, shall never exceed ten dollars per front foot of his property.

It Avould seem, therefore, that great caution is exercised in the statute against ¡arbitrary, unfair and unreasonable assessments, ¡such as requiring an ¡owner of prop•erty to pay an amount in excess of the benefits the improvements conferred on his property. It was scarcely -coneeiA'able that- under these restrictions 'such a result could happen; but, in case it should, in any instance occur, a still greater safeguard against unfairness is added, that the owner may apply to the council, and it is made their duty to correct any error or supply any omission that may have occurred. Furthermore, as if ■this were not enough, and to multiply -safeguards for the protection of OAvners of property, it is again provided 'that their property shall not be sold for such improvements, until tlie city court in equity shall haAre so decreed, after an opportunity to them to show cause Avhy •such a decree should not be entered. Surely, if it Avere •there shown by a property owner that the assessments .against him exceeded the benefits conferred on his property (a case not likely to arise under the restrictions; and limitations of the charter), that court, sitting to do> equity between the city and property owners, would have the authority to correct such an error and prevent such an injustice. It was for that very reason, it may be fairly supposed, the Legislature required these assessments to be passed on by a court of equity, before a sale of the property assessed should be had. The result of' this investigation leads to the conclusion that these charter provisions are not violative of the provisions of the-constitution of the United States or the State of Alabama, in the particulars urged by the defendant.

The decree of the city court in annulling the -assessment in this ease and dismissing the cause out of court, must be reversed and the cause remanded, to be there-proceeded with in conformity with the principles herein expressed.

Reversed and remanded.