City Council of Montgomery v. Moore

• Decision Date: 10 May 1904
• Citation: 140 Ala. 638,37 So. 291
• Parties: CITY COUNCIL OF MONTGOMERY v. MOORE.
• Court: Alabama Supreme Court

37 So. 291

140 Ala. 638

CITY COUNCIL OF MONTGOMERY v. MOORE.

Supreme Court of Alabama

May 10, 1904

Appeal from City Court of Montgomery; A. D. Sayre, Judge.

Proceeding in equity under Act Feb. 10, 1887 (Acts 1886-87, p. 776), by the city council of Montgomery against Ella Moore, to enforce payment of an assessment on property in the city of Montgomery, owned by defendant, for paving the street on which the property abutted. Decree for defendant. Plaintiff appeals. Reversed.

Defendant by her answer asserted the invalidity of the assessment on the following grounds: "(1) That said paving on said street and sidewalk was laid, and the said assessment is alleged to be authorized, by the provisions of a certain alleged act of the General Assembly of Alabama entitled 'An act to authorize the city council of Montgomery to issue bonds for the purpose of paving or otherwise improving the streets and sidewalks, or either, of the city of Montgomery,' approved February 18, 1895 (Laws 1894-95, p 906), a certain alleged ordinance or ordinances passed by the city council under the supposed authority of said act. And the said owner as aforesaid saith that said act of the General Assembly of the state of Alabama is violative of section 7 of the Declaration of Rights of the state of Alabama, in that it deprives respondent of her property without due process of law. (2) That said act is violative of section 24 of article 1 of the Constitution of Alabama, in that it seeks to take private property for a public use without first making just compensation therefor. (3) That said act is violative of section 2 of article 4 of the Constitution of the state of Alabama, in that it has more than one subject, and only one of which is expressed in its title. (4) That said act is violative of the fourteenth amendment of the Constitution of the United States, in that it seeks to deprive a person of his property without due process of law. (5) That said act is violative of said fourteenth amendment of the Constitution of the United States, in that it denies this respondent the equal protection of the laws. (6) That said act is violative of the state and federal Constitutions, and the parts thereof above set forth, in that it seeks to place the entire cost of the paving of said sidewalk and street on the owners of the property abutting thereon, without any regard to any special benefit to such property which might accrue thereto by reason of such paving, but on an arbitrary basis of the front footage of said property abutting on said street. (7) That said act is violative of the said provisions of said state and federal Constitutions as above set forth, in that it requires the owners of the property abutting on said street to pay more than the entire cost of such paving in front of their respective properties, viz., their proportionate part according to the entire length of said street as paved, of the paving of said street where the same intersects with other streets, which part of said paving does not front or abut on the property of any person, and also a part of the expense of issuing bonds. (8) That the assessment was not made in accordance with the provision of the charter of the city of Montgomery, in this: that the entire cost of paving in front of respondent's property, together with a proportionate part of the cost of paving the street crossings, and the expense of issuing bonds, was assessed against the said property without regard to any special benefit thereto."

Bibb Graves, for appellant.

Gordon Macdonald, Marks & Sayre, and Lomax, Crum & Weil, for appellee.

McCLELLAN C.J.

An act of assembly approved February 18, 1895 (Acts 1894-95, p 906), has this title: "An act to authorize the city council of Montgomery to issue bonds for the purpose of paving or otherwise improving the streets and sidewalks, or either, of the city of Montgomery." Section 2 of the act provides, among other things: "That whenever the city council of Montgomery shall deem it wise to have or otherwise improve any street or portion thereof, or sidewalk or portion thereof, it shall ascertain the approximate cost of such proposed paving or improving, and shall then by ordinance require that said paving or improving shall be done, * * * and provide for the issue of bonds of the character hereinafter described in an amount sufficient to pay the expense of such issue and the costs of such paving or improving." Section 3 provides the terms of said bonds and provides that "they shall be payable twenty years from their date, but shall be so issued that said city council may redeem one-twentieth of the principal thereof annually, and it shall be the duty of said city to redeem at least one-twentieth of each and every issue of said bonds, with all interest due, each year until they are extinguished." Section 4 (page 907), so far as pertinent here, is as follows: "That said city council shall provide and require, by proper ordinance, that the cost of such paving, together with the expense incident to the issue of such bonds, and the interest thereon shall be assessed against and collected from the owners of the property abutting such paving in such manner that one-twentieth thereof shall be paid each year, such assessment to be prorated according to the frontage of such property and collected at the same time and in the same manner as city taxes, and shall be a lien upon such property subordinate only to the state and city taxes, to be enforced in like manner as the lien for such city taxes." The case now presented involves the question whether the foregoing provisions of section 4 of the act are covered by the title of the act; that is, whether these provisions for the raising of funds with which to pay the principal and interest of the bonds which it is the purpose of the act, as expressed in its title, to authorize the city to issue, are germane, cognate, and complementary to the purpose so expressed. This inquiry must be determined affirmatively. It must be ruled that the provisions referred to are germane, cognate, and complementary to the subject expressed in the title of this act, and are therefore covered by it and properly embodied in the act as constituting in part the subject so expressed, on the considerations adverted to and the principles declared in the cases of Mitchell, Judge, etc., v. Florence Dispensary, 134 Ala. 392, 30 So. 687, Ex parte Mayor and Aldermen of Birmingham, 116 Ala. 186, 22 So. 454, and State ex rel. v. Griffin et al., 132 Ala. 47, 31 So. 112.

The other question in this case arises on the provisions of section 4 of the act, above quoted, for the assessment of the whole costs of the paving against abutting property, "prorated according to the frontage of such property," and is whether, in view of state and federal constitutional provisions as to compensation for property taken for public uses, and depriving the citizen of property without due process of law, it is within legislative competency to thus impose the costs of street paving and the like upon abutting property without judicial ascertainment of the benefits accruing to such property from such improvements, and apportionment of the costs of the betterments according to and not in excess of the actual benefits inuring from them to the several abutting lots of land. This question has been thrashed over in numerous decisions of the courts, and, while the cases are not uniform upon it, the better view, and that supported by the great weight of authority, is that it is a matter of legislative expediency and for legislative determination whether abutting urban property will be benefited to the extent of the costs of a given improvement of the street or sidewalks along its front, and therefore entirely within legislative competency to impose such cost, by way of special tax, upon the property abutting the improved street, apportioning the charge thereto according to the distance the several parcels of land front upon the street. The authorities supporting this view are numerous, and include, we believe, all text-writers on the subject:

"The major part of the cost of a local work," says Judge Cooley, "is sometimes collected by general tax, while a smaller portion is levied upon the estates specially benefited. The major part is sometimes assessed on estates benefited, while the general public is taxed a smaller portion in consideration of smaller participation in the benefits. The whole cost in

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