Pierce v. City of Huntsville

64 So. 301, 185 Ala. 490, 1913 Ala. LEXIS 697

• Court: Supreme Court of Alabama
• Decided: November 27, 1913
• Status: Published

Opinion

SAYRE, J.

By the common-law writ of certiorari appellant sought to have the Madison law and equity court review and quash a proceeding assessing the cost of an attingent street improvement against her property. On the hearing the writ was quashed, after which this appeal was taken.

The theory of the writ of certiorari in such cases is that the proceeding for the assessment appears upon the face of its record to be without the power and jurisdiction of the municipal authorities acting in the premises, and so null and of no effect.

After a certified copy of the record of the proceeding of the city council and the city commissioners — a government by commission having been established pending the proceeding under authority of the act of April 21, 1911 (Acts 1911, p. 591 et seq.) — had been exhibited to the court to sustain the assessment, defendant was allowed to show aliunde the record the contents of the notice which had been published in a newspaper advising property owners that the assessment book was ready for inspection, and that the commission would sit at a designated time and place to hear objections, in pursuance of sections Í377-1379 of the Code. Appellant’s objection was that the notice should be shown by the record and not otherwise. Our judgment is that the notice was shown by the record, and that the error of admitting other evidence, if it -was error, was harmless. The final resolution confirming the assessment and fixing it as a charge against appellant’s property as shown by the record of the proceedings had by the city council and the board of commissioners, recited the fact that the requisite advertisement had been made in compliance with the statute, to wit, in the Mercury Banner, a newspaper published in the city of Huntsville, and of general circulation therein, on the 15th day of April, 1912, setting out a copy of the same. The statute evidently contemplates a record of proceedings for local assessments, and a record of some sort could not well be dispensed with. It provides, for example, that on appeal to the circuit court the cause “may be tried on the record without other pleadings.” — Section 1394. It provides that the clerk of the city shall, when an appeal has been taken, send to the clerk of the circuit court “a transcript of all the proceedings of the council relating to such assessment.” The record here shown contains a finding by the commission as to how, when, where, and of what publication had been made, all in agreement with the statutory requirements. The statute having specified no means whereby the fact of publication should be shown, the ascertainment by the commission and a record of the commission’s finding afforded the only possible record evidence of a publication in compliance with the statute. No other evidence was necessary.

Shortly after the commission came into existence it proceeded to consider the assessment roll which had been prepared under the direction of the city council, and adopted a resolution fixing the assessment previously made for the improvement of Holmes street “from its intersection with Fifth street and Pratt avenue to Bison street.” The record shows that in all previous proceedings the proposed assessment had been described as for the improvement of Holmes street “from its intersection with the west property line of Pulaski road or pike to its intersection with the east property line of Pratt avenue and Fifth street.” The statute provides (section 1370 of the Code) that if the improvement be finally ordered and constructed, the council shall have power and authority, after completion and acceptance thereof, to assess the cost of constructing said improvement, or any part thereof, upon and against the property abutting on any street, etc. The resolution first adopted by the commission may, perhaps must, be construed as an effort to fasten the cost of the improvement upon abutting property in advance of a completion of the work as theretofore proposed. It, therefore, lacked authority of law. It may be conceded that the commission’s first effort to deal with the assessment in question was defective and ineffectual. Afterwards, as the record shows, the board of commissioners — appreciating no doubt the error of its previous proceeding — caused notice of the assessment for the improvement of Holmes street, in accordance with the resolution to that end which had been adopted in the beginning, to be published, and thereafter proceeded in due course to fix the assessments as charges upon the property of abutting owners. Appellant denies the right of the commissioners to retrace their steps in this manner. Her contention just at this point seems to be that, where fundamental irregularity has intervened in the course of a proceeding, it is requisite to a valid assessment that the pending proceeding should be formally rescinded and a new and independent proceeding be set on foot. We do not appreciate the necessity for a formal rescission of so much of a record as appears on its face to be infected with fatal fundamental error, nor do we see the necessity or occasion in such case of carrying the process of rehabilitation back further than the specific error appearing. There is no reason why steps properly taken previous to the error should be retraced. The integrity of the proceeding, the completeness of the record, due process according to the provision of the statute, and all the rights of property owners, may be preserved in the manner of procedure adopted in this case. In Garner v. Anniston, 178 Ala. 430, 59 South. 654, speaking of the procedure on appeal to the circuit court, or other court of like jurisdiction, in cases arising under the statute for local assessments, we said: “If fundamental error be shown in the record, the proceeding, so far as it touches the interest or property of the party appealing, shall be abated- or held for naught, in which •case (section 1380) supplementary proceedings may be had, in order to supply or cure the defect.” True, we added: “We take the last-mentioned provision (section 1380) to mean that as to the party appealing a reassessment may be had, in which the council or municipal board must begin anew and retrace its steps” — but we were speaking in a case in which the original resolution, which must mark the beginning of every proceeding for the levy of a local assessment was in question.

Appellant showed in her petition for certiorari that she had gone to the circuit court with her grievance immediately after those errors appeared which marked the first effort of the commissioners, and without waiting for further action by the commission, that the circuit court had taken jurisdiction, and that the proceeding was still pending in that court. Appellant contends that the pendency of the questions raised by the certiorari in the circuit court deprived the board of commissioners of the power to proceed to the correction of errors which we may suppose it was the purpose of the application to the circuit court to have corrected. We do not think so, but it will suffice for this case to say that we have before us no evidence of the pendency of the proceeding in the circuit court.

Section 1252 of the Code provides that: “No ordinance or resolution intended to be of permanent operation shall be adopted by the council at the same meeting at which it is introduced, unless unanimous consent of those present is given for the immediate consideration of such ordinance or resolution, such consent to be shown,” etc. Section 1258 provides for the publication of ordinances or resolutions of a general or permanent nature. Section 1185 provides for the transmission of ordinances and resolutions intended to be of a permanent operation to the mayor for approval, etc. Appellant urges that at various points the transcript of the record of the proceedings had for the assessment in this case shows a failure to comply with these statutes. She says, for example, that the resolution providing for publication for bids on the paving work was adopted at the same meeting at which it was introduced; was not approved by the mayor; was not published as an ordinance of a permanent nature, etc. So of the ordinance accepting the bid. So of the last ordinance adopted by the board of commissioners fixing the assessment. Our opinion is that the ordinances and resolutions complained of, constituting steps in a proceeding which reached from the original resolution or ordinance determining that the improvement should be taken to the final ordinance or resolution fixing the assessment and providing for payment for the completed work, are not the ordinances or resolutions contemplated by those sections of the Code relating to the passage, approval, and authentication of ordinances and resolutions of a permanent nature or intended to- be of permanent and general operation. The proceeding for the assessment of the cost of a street improvement against the abutting property is administrative and judicial in its character. It is also- local and special, and when its end is once accomplished, it is no longer a rule of conduct, but its interest is historical and evidential only. It is then consigned to the limbo of things which have served their purpose. The procedure in such cases is laid down with great detail in article 26 of the chapter on Municipal Corporations beginning at section 1859 of the Code. Only such formalities and publications as are prescribed in that article are essential to- the validity of the special proceeding there provided for. There was in this case no lapse in the observance of the requirements of that article, and the result of the proceedings had must be approved, confirmed, and established.

Appellant further complains that the publication ordered by the board of commissioners was made in a newspaper owned, edited, and published by one of the commissioners, and hence that a process so “conceived in sin and shapen in iniquity” cannot serve the purpose and end of that due process Avhich is required by the law of the land. It is provided (Code, §§ 1193, 1194) that neither councilmen nor aldermen shall be interested in any Avork, business, or contract, the expense, price, or consideration of which is paid from the treasury. Substantially the same inhibition is applied to commissioners where a commission form of municipal government is established. — Act April 8, 1911, p. 330, § 19. There is no statutory provision invalidating publications of notice made in the circumstances of which appellant complains. The element of publication by which the owners of property are affected and in which they are therefore interested is merely the fact of publication in a newspaper answering the requirements of the statute as to place of publication and generality of circulation.

Proceedings of this sort under review, though differing in some material respects from ordinary proceedings for the levy and collection of taxes, have root in the sovereign taxing power of the state. They must be so contrived and administered as to reach all property OAvners alike. If personal notice may be dispensed in one case it may in another. The theory on which constructive service is permitted in such cases is that no oAvner can hold his property exempt from the liabilities, duties, and obligations Avhich the state has a right to impose because he may not be reached by personal process. “In such cases some substantial form of notice has always been held to be a sufficient warning to the owner of the proceedings which are being taken under the authority of the state to subject his property to those demands and obligations. Otherwise the burdens of taxation, and the liability of such property to be taken under the pi er of eminent domain, would be useless in regal’d to very large amount of property in every state of the Un ion.” — 5 Encyc. U. S. S. C. Repts. 651. Publication in a reasonable manner is a general public notice, which the law presumes will reach the cognizance of the owner to he affected, and is due process. The necessity for proceeding on such notice and its secure foundation in the principles of justice are too well established to be now questioned. — Id.

Appellant complains also that she has not been given a hearing by an impartial tribunal. She notes that the municipal authorities, as agents of the public, instituted the proceeding for the assessment against her property, superintended the procedure, and passed upon her objections, although it was really the municipality, the public- generally, for whose benefit the proceeding was had and the assessment made. In short, she objects, the city council and the board of commissioners were judges in their own case. It is fundamental that no man shall be judge in his own case, and due process requires an impartial tribunal. But it is settled that this principle, or these principles, do not exclude citizens from sitting as judges or jurors in cases in which the interests of the community in which they live are placed in opposition to the interests of private persons, nor do they extend to the action of municipal authorities in levying special assessments. — Hibben v. Smith, 191 U. S. 310, 21 Sup. Ct. 88, 48 L. Ed. 195; Lent v. Tillson, 110 U. S. 316, 11 Sup. 825, 35 L. Ed. 119.

Another objection, taken in rather a general way, to the effect that the proceeding authorized by the statute lacks the essential characteristics of a judicial proceeding, has been considered by this court in City of Birmingham v. Wills, 178 Ala. 198, 59 South. 173. Certainly there would have been no lack of judicial form in the circuit court, or other court of like jurisdiction, to which appellant might have taken her case by appeal. Still other objections were considered in Garner v. Anniston, 178 Ala. 430, 59 South. 654. There is no occasion for a restatement of the considerations which influenced the conclusions reached in those cases.

Affirmed.

Dowdell, C. J., and McClellan and Somerville, JJ., concur.