City of Birmingham v. Wills

• Citation: 59 So. 173,178 Ala. 198
• Parties: CITY OF BIRMINGHAM v. WILLS.
• Decision Date: 17 February 1912
• Court: Supreme Court of Alabama

59 So. 173

178 Ala. 198

CITY OF BIRMINGHAM v. WILLS.

Supreme Court of Alabama

February 17, 1912

Rehearing Denied April 25, 1912.

Appeal from City Court of Birmingham; H. A. Sharpe, Judge.

Bill for injunction by E. D. Wills against the City of Birmingham. From the judgment, the defendant appeals. Reversed and remanded.

Simpson J., dissenting.

Romaine Boyd, of Birmingham, for appellant.

F. E Blackburn, of Birmingham, for appellee.

SAYRE J.

The bill in this case was filed for the purpose of preventing by injunction the enforcement of an assessment for local improvement. The proceeding for the assessment was begun by the city of Graymont. Pending the improvement, that city became incorporated into the city of Birmingham which thereby succeeded to all its powers, rights, and liabilities, and thereupon carried the work to completion. In his bill complainant avers that the proceedings, by which the defendant and its predecessor, the city of Graymont, sought to fasten a lien upon his property, failed to follow the statute made for such cases, and were defective in various respects: The original ordinance, putting the improvement on foot, fails to sufficiently describe the general character of the material to be used in making the pavement provided for it fails to describe sufficiently the nature and extent of the work proposed; it provides that no sidewalks are to be paved where, in short, the work had already been done by the abutting property owner; it delegates the power and authority of the city council of Graymont to the city engineer in that he is required to fix and determine specifications; neither the grade of the said street, Smithers Boulevard, nor the grade of the curb along the same, was ever legally established by ordinance, resolution, or otherwise, prior to the adoption of the resolution providing for the improvement. He avers also that the final resolution of the board of commissioners of the city of Birmingham, fixing and making final the assessment, is illegal for various reasons: Because the original resolution adopted by the city council of Graymont never became effective by reason of the fact that said resolution was not published in any newspaper nor posted within the city of Graymont as required by law; because said original resolution was defective for the reasons already stated; because the specifications prepared by the city engineer called for work and materials not within the contemplation of the original resolution; because no estimates of the cost of the improvement were made and filed with any officer of the city of Graymont prior to the adoption of the final resolution ordering the improvement to be done; because during the progress of the work the materials to be used were changed, and its cost to the owners of abutting property was increased by widening the driveway to be paved and by altering the curb lines. And for each of these reasons, the averment is, the assessment against complainant's property is illegal, null, and void. The court below overruled a demurrer, assigning many grounds interposed by the city of Birmingham, and this appeal seeks to review that ruling.

An outline of the statute authorizing improvements of this character by municipal corporations, the cost of which may be assessed against the abutting property, will make sufficiently plain the nature and extent of the departure from statutory requirement of which the appellee complained in the court below. The entire statute is to be found in sections 1359-1420 of the Code of 1907. Sections requiring attention in this connection may be epitomized as follows: There must first be an ordinance or resolution determining the execution of the work (but only tentatively, as will appear), describing its nature and extent, the general character of the materials to be used, the street to be improved, and the location and terminal points of the improvement. The resolution must direct full details, drawings, plans, specifications, and surveys of the work, and estimates of the cost be prepared, or plans already prepared may be adopted. Code, § 1361. Details, specifications, etc., and estimates must be placed on file where property owners may examine same, and the ordinance or resolution shall appoint a time, not less than two weeks after the first publication thereof, to hear objections to the improvement, the manner of making the same, or the character of the material to be used. Section 1362. The ordinance or resolution must be published once a week for two weeks in some newspaper published in the city or town, or, if there be no such newspaper, in a newspaper of general circulation therein, or by posting for two weeks in three public places therein. Section 1363. At the meeting property owners shall be heard to object, and such objections must be considered, and then the council may confirm, amend, modify, or rescind the original ordinance or resolution. If a majority of property owners object, the improvement shall not be made unless ordered by a two-thirds vote of those elected to be council. Section 1364. Before the passage of the final resolution or ordinance, if the grade of the street has not been established, or if the improvement necessitates a change, the grade of the street and of the curb on each side shall be fixed by ordinance. Section 1366. Bids shall then be advertised for and the work may be let to contract. Section 1367. The city engineer must supervise the work. Section 1368. After completion and acceptance of the work, the cost, or any part thereof, may be assessed in fair proportion against abutting parcels of land to the extent of the increased value of such parcels by reason of the special benefits derived from such improvement. Sections 1370, 1371. A roll of property is then prepared showing each parcel and the amount to be assessed against it. Section 1375. The roll must be entered upon a public record. Section 1376. The record book is to be delivered to the city clerk who shall give notice by publication one time in some newspaper published in the municipality, or of general circulation therein, that the assessment roll has been delivered to him, and is open to inspection. Section 1377. The notice must contain other information as to the character of the improvement. Section 1379. "At a time and place therein mentioned, not less than twenty days from the date of publication, the council will meet to hear and determine any objections or defense that may be filed to such assessment or the amount thereof." Section 1378. Owners may appear at any time on or before the date named, or at the meeting, and file "any objections or defense to the proposed assessment against said property, or to the amount thereof, and persons who do not file objections in writing or protests against such assessment shall be held to have consented to the same. Section 1381. The council must hear and pass upon objections. Section 1382. In case defects appear, supplementary proceedings of the same general character as those prescribed in the first place may be had to cure such defects. Section 1380. The council then proceeds to fix by order or resolution the amount of the assessment against each lot or tract of land described and included in said assessment roll, which shall be a lien thereon. Section 1834. Any person aggrieved may appeal to the circuit court or any other court of like jurisdiction. Section 1389. On the appeal the court "shall determine whether or not such assessment exceeds the increased value of such property by reason of the special benefits derived from the improvement, and shall render judgment accordingly." Section 1394. An appeal to this court is provided for. Section 1396.

Let it be noted at this point that there is no averment that there was any defect or default in the notice required by sections 1377 and 1379 in respect to the preparation of the assessment roll and the time and place at which objections and defenses would be heard and determined preliminary to the final adjudication of the assessment against each parcel of property and the amount thereof, nor is it complained that the amount assessed against complainant's property is in excess of the benefits derived from the improvement, nor is there any averment of fraud in the proceedings. Nor does it appear that complainant appeared at any stage of the proceeding for the purpose of interposing objections or defense. The validity of official acts and the regularity of official proceedings are always to be presumed. For this reason (Page v. Baltimore, 34 Md. 558; Hellman v. Shoulters, 114 Cal. 136, 44 P. 915, 45 P. 1057; Brown v. Chicago, 117 Ill. 21, 7 N.E. 108; Montgomery v. Wasem, 116 Ind. 343, 15 N.E. 795, 19 N.E. 184; Martin v. Oscaloosa, 126 Iowa, 680, 102 N.W. 529; Barkley v. Oregon City, 24 Or. 515, 33 P. 978), and because on demurrer the pleader is presumed to have stated his case as favorably to himself as the facts would admit, these things must be taken against the complainant. Complainant attacks the assessment and the proceedings leading up to it collaterally. His contention is that the defects alleged in the proceedings were jurisdictional and that their presence is sufficient to render the resultant assessment void for all purposes.

Municipal corporations possess no inherent power to levy assessments for local improvements. There was no such power at the common law. In order therefore to justify such assessments, it is necessary that authority for them be found in legislative act; the presumption being that, in the absence of legislative grant providing for a special source of revenue for public improvements funds for that purpose are to be raised by an exercise of the power of general taxation. Local assessments are in derogation of the...