Armstrong v. City of Montgomery

• Decision Date: 17 February 1949
• Docket Number: 3 Div. 509.
• Parties: ARMSTRONG et al. v. CITY OF MONTGOMERY.
• Court: Alabama Supreme Court

38 So.2d 862

251 Ala. 632

ARMSTRONG et al. v. CITY OF MONTGOMERY.

3 Div. 509.

Supreme Court of Alabama

February 17, 1949

Robt. E. Coburn, Jr., of Montgomery, for appellants.

R S. Hill, Jr. and Walter J. Knabe, both of Montgomery, for appellee.

BROWN Justice.

Appeal in this case is from a declaratory decree rendered by the circuit court, in equity, upholding the constitutionality of § 595, Title 62, Code of 1940, relating to the Cities of Mobile and Montgomery. Subsection (2) thereof provides 'Each such city shall have the same power with reference to the construction or reconstruction of sanitary sewer systems and sewage treatment or disposal plants and the construction or reconstruction of outlets for such sewer systems within the police jurisdiction of such city as it has within the corporate limits of such city.'

Subsection (3), § 595, Tit. 62, Code of 1940 provides: 'Each such city shall have the same power with respect to the assessment of the cost of any such construction or reconstruction against the property abutting upon or served or benefited or increased in value by reason of such construction or reconstruction where such property is located outside of the corporate limits of such city and within the police jurisdiction of such city, as it has under existing law with respect to assessments against property located within the corporate limits of such city and served, benefited or increased in value by reason of such construction or reconstruction, and shall have the same power to issue bonds or negotiable notes to pay for such construction or reconstruction, as it has under law where such assessment is made against property located within the corporate limits of such city. All laws governing or relating to such assessments against property located within the corporate limits shall apply to such assessments made against property outside of the corporate limits and within the police jurisdiction of such city. All laws relating to the issuance of bonds to obtain money to pay for the cost of such construction or reconstruction, where the whole or any part of such cost is assessed against property located within the corporate limits of the city shall apply and govern the issuance and sale of bonds to obtain money to pay for cost of such construction or reconstruction, where such cost is assessed in whole or in part against property located outside of the corporate limits of such city and within the police jurisdiction of such city.'

To fully understand the scope and purpose of said section it must be read in connection with § 601, Title 37, Code of 1940, which provides: 'All cities and towns may make all needful provisions for the drainage of such city or town; may construct and maintain efficient sanitary and storm-water sewers, or sewer systems, either within or without the corporate limits of the city or town; may construct and maintain ditches, surface drains, aqueducts, and canals build and construct underground sewers through private or public property, either within or without the corporate limits of such city or town, but just compensation must first be made for the private property taken, injured, or destroyed.'

Section 513, Title 37, Code of 1940, dealing generally with powers conferred by the legislature on municipalities in subsection 2 provides: 'The construction...