City Council of Montgomery v. Birdsong

• Decision Date: 19 April 1900
• Citation: 28 So. 522,126 Ala. 632
• Parties: CITY COUNCIL OF MONTGOMERY v. BIRDSONG.
• Court: Alabama Supreme Court

28 So. 522

126 Ala. 632

CITY COUNCIL OF MONTGOMERY v. BIRDSONG.

Supreme Court of Alabama

April 19, 1900

Appeal from city court of Montgomery.

Action by the city council of Montgomery against Letha Birdsong. From a decree for defendant, complainant appeals. Reversed.

The proceedings in this case were instituted by the city council of Montgomery, under provision of the act of the general assembly, regulating the sale of real estate in the city of Montgomery, for unpaid taxes for municipal purposes. The pleadings in the case and the facts relating to the cause are sufficiently stated in the opinion. Upon submission of the cause upon a motion to dismiss the answer of the respondent and upon demurrer to such motion, the court entered a decree overruling the motion to dismiss the answer and overruling the demurrers to said answer, and further decreed that the assessment made in said cause be annulled and the cause dismissed. From this decree, the complainant, the city council of Montgomery, appeals and assigns the rendition thereof as error.

Graham & Steiner, for appellant.

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

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 February 10, 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, as 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 in the 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 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 interest 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 shown to the contrary, enter upon said docket a decree against said property for the amount of the taxes, assessments, interest and cost that may be 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 shown to the 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 exceptions 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 paying. It followed and complied substantially with the provisions of said act of the 10th of February, 1886-87, 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 paying, $78.38. A motion to show cause within 30 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 3 of said act.

The appellee, the personal defendant in said proceeding, appeared in said 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: (1) "That the city court in equity has no jurisdiction to entertain the proceeding." (2) "That said assessment is not authorized by law." (6) "As to such graveling and paving, the assessment is void, because not based upon the benefit to said property, which is in violation of the fourteenth amendment of the constitution of the United States, and of section 24 of the Declaration of Rights of the State of Alabama." (8) "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 this: 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, in 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 sidewalk improvement. We need not here repeat these grounds urged by the city, for they are numerous; not 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 such as go to the merits of the controversy. All others we regard 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 368) 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 therefore, 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 to exceed in any case more than one-fourth of the cost 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-eighth 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 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," 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 the owners or tenants of property to keep the...