Benson v. City of Andalusia
| Decision Date | 29 June 1940 |
| Docket Number | 4 Div. 152. |
| Citation | 240 Ala. 99,195 So. 443 |
| Parties | BENSON v. CITY OF ANDALUSIA. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Covington County, in Equity; A. E Gamble, Special Judge.
Bill for declaratory judgment by L. E. Benson against the City of Andalusia to determine the invalidity of an ordinance and the rights, status, or legal relations of plaintiff with respect thereto. From a decree sustaining a demurrer to the bill complainant appeals.
Affirmed.
Mizell & Pearson, of Andalusia, for appellant.
Powell & Fuller, of Andalusia, amici curiae.
Robert B. Albritton, of Andalusia, for appellee.
This action was brought under and by virtue of the provisions of the General Acts of 1935, page 777 et seq., providing for declaratory judgments.
The complainant in the court below, appellant here, who is a property owner in the city of Andalusia, Alabama, and whose property, as shown by the bill of complaint, is connected with the sewer system of said city, and who has a pecuniary interest in the question here presented, and has an actual controversy with the city of Andalusia, filed his bill of complaint in the Circuit Court of Covington County, Alabama in Equity, against the City of Andalusia, a municipal corporation, praying for the construction of a certain ordinance and an amendment thereto; a determination of the validity of said ordinance and amendment, and for a declaratory judgment or decree stating the rights, status or other legal relations between complainant and respondent with reference to said ordinance and amendment.
The bill of complaint in this cause discloses that the city of Andalusia is the owner of a sanitary sewerage system. As to whether or not the system is one entire system, or is composed of two separate systems, is not entirely clear from the averments of the bill. But we deem that question not important here, for it sufficiently appears that the one, or both, as the case may be, is the property of the municipality.
The ordinance, as amended, which forms the basis of this action, and which is set forth in the bill of complaint, provides, in substance, for a "sewer service charge," graduated in amount according to the number of connections served, to be paid to the city of Andalusia by owners of premises which are connected with or served by the sanitary sewer system of the city of Andalusia. The ordinance further provides for a penalty in the nature of a fine for using the sanitary sewer system without first paying the "sewer service charge." And further that, upon the failure to pay the "sewer service charge" provided for, when due, and after the same has been delinquent for thirty days, and after five days' notice of such delinquency to the owner of the premises in default, such premises will be disconnected from the sanitary sewer system of the city.
Section 2 of the General Acts of 1935, page 777 et seq., provides:
The bill of complaint in this cause, with appropriate demurrers thereto, presented to the court below but one question, and that is the validity of the ordinance as amended. That is to say, the authority of the municipality to pass such an ordinance, but not the manner or method of its passage. For, if the ordinance is an exercise of the legal authority of the city, the rights of the parties under it are perfectly obvious. If the ordinance is invalid there is, of course, nothing to adjudicate as to the rights, status or other legal relations of the parties under it. It is apparent that the trial court so viewed the pleadings, as did counsel for appellant and appellee, and counsel amicus curiae in their briefs.
The question then is, did the municipality have the authority to pass the ordinance and the amendment? Appellant insists that the ordinance, as amended, is violative of sections 6, 20 and 211 of the Constitution of Alabama, and the fifth and fourteenth amendments to the Federal Constitution. In our view of the record a determination of the city's authority to pass such an ordinance will answer these questions.
A sewerage system may be constructed...
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...to the Supreme Court of the United States is available as in other cases.Id. (emphasis added).8 Appellees cite Benson v. City of Andalusia, 240 Ala. 99, 195 So. 443 (1940) and Thompson v. Chilton County, 236 Ala. 142, 181 So. 701 (1938) in support of their argument, but neither of these cas......
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...function. See, e.g., St. Clair County Home Builders Ass'n v. City of Pell City, 61 So.3d 992 (Ala.2010), and Benson v. City of Andalusia, 240 Ala. 99, 195 So. 443 (1940) (both upholding municipal ordinances relating to water and/or sewer systems owned and operated by municipalities). Althou......
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