Rehearing
Denied June 9, 1933.
Appeal
from Circuit Court, Jefferson County; Wm. M. Walker, Judge.
Bill by
the Seaboard Air Line Railway Company against the City of
Birmingham, members of the City Commission and the
Comptroller, to enjoin enforcement of liens for improvements
against railroad properties. From a decree overruling
demurrer to the bill in certain of its aspects and sustaining
demurrer in others, respondents appeal, and complainant
cross-assigns errors.
Affirmed
in part, and in part reversed and remanded.
BROWN
and THOMAS, JJ., dissenting in part.
PER
CURIAM.
The
majority, consisting of ANDERSON, C.J., and GARDNER, BOULDIN
FOSTER, and KNIGHT, JJ., hold that the property in classes 1
2, 3, 4, 5, 6, 7, 8, and 9 (as stated in the opinion of
BROWN, J.) is a part of complainant's system of railway,
in actual use as such and necessary to its operation, and is
not within the influence of section 2174 of the Code of 1923
(as amended by Gen. Acts 1927, p. 754, § 3), and the
assessments made against said property are void for want of
jurisdiction on the part of the city commission to levy such
assessments; but they do not hold that the Legislature is
without power to make such assessments and make it a personal
liability on the railway company to pay such assessments, if
special benefits accrue to the property therefrom.
All the
justices are of the opinion that the assessment of the
property in the tenth class is within the influence of the
statute, and the assessment thereon is valid.
THOMAS,
J., concurs with the majority to all the assessments, except
the assessment against class 9, and is of opinion that this
property is assessable under section 2174 of the Code.
BROWN,
J., is of opinion that the assessments are valid except as to
classes 1, 2, and 3; his views being stated fully in the
following opinion.
It
therefore results that the decree of the circuit court is
affirmed, in so far as it holds that the bill has equity as
to classes 1, 2, 3 and 4, and is without equity as to class
10. In all other respects, it is reversed, and the cause is
remanded.
The
costs of the appeal are taxed in equal parts against the
appellant and the appellee.
BROWN
Justice (concurring in part, and in part dissenting).
This
appeal is by the respondents from a decree overruling their
demurrers to the bill as last amended and to certain
paragraphs thereof, and sustaining the demurrers to certain
aspects and paragraphs of the bill, and, by consent of
appellants indorsed in writing on the transcript, as
authorized by rule 3 governing the practice of this court,
the appellee has assigned errors as upon a cross appeal. Rule
3, Supreme Court Practice, Code 1923, vol. 4, p. 881. See,
also, section 6091 of the Code.
The
bill, in short, alleges that the complainant is engaged in
the business of a common carrier of freight and passengers,
and "operates a general railroad system as a common
carrier through the State of Alabama and other States,
including Georgia, Florida, South Carolina, North Carolina,
and Virginia. Part of its main line, as will be more fully
hereinafter described, passes directly through the City of
Birmingham, partially over property owned in fee by
complainant and partially along and across certain of the
streets of said city and partially along a 100-foot strip of
land in which complainant owns an easement or right of way
for the operation of its railroad trains, the said right of
way lying 50 feet on each side of the center line of
complainant's main line single track between Birmingham,
Alabama, and Atlanta, Georgia"; that "The said
Commission of the City of Birmingham has enacted various
ordinances, hereinafter more specifically set forth, for the
paving of certain streets and sidewalks and for the curbing
and guttering thereof, and also for the building of certain
sewers. All of said improvements about or
border upon, or are in close proximity to, the right of way
and other properties of said complainant as above described,
and for the payment of the cost of said improvement the
Commission of said City has adopted resolutions assessing
against the properties of this complainant various sums as
complainant's alleged legal proportion of the cost of
said improvements by reason of complainant's ownership of
the properties referred to and hereinafter more specifically
described. Said ordinances and assessments are hereinafter
set forth and described as follows."
Then
follows in the several paragraphs of the bill, statement of
the ordinances by numbers, a description of the property
affected, stating the amount of the assessment against each
block or parcel, and the character of the improvement.
We deem
the classification of the properties and assessments in
appellants' brief, which appellee concedes to be correct,
sufficient to an understanding of the principles of law
applicable. The classification follows:
"
First Class
"
Assessments against main line right of way held by
easement, including roadbed in use.
"Property
assessed under: Imp. Ord. 712-D and Pro. No. D-41654 (Par.
V, Page 6); Imp. Ord. 858-D and Pro. No. 48681 (Par. VI,
Page 6); Imp. Ord. 492-D and Pro. No. D-45865 (Par. VII, as
amended, Page 10); Imp. Ord. 622-D and Pro. No. D-31173
(Par. VIII, as amended, Page 11); Imp. Ord. 858-D and Pro.
No. D-48681 (Par. VIII-A, Page 11); Imp. Ord. No. 863-D and
Pro. No. D-74209 (Par. VIII-B, Page 11).
"
Second Class
"
Assessments against lots held in fee, including main
line roadbed in use.
"Lots
21, 22, 23 and 24, Meades Subdivision of Block 15,
Montgomery & Parkes Survey (Par. VIII, Page 8).
"
Third Class
"
Assessments against specifically described parcels of
land lying outside the roadbed, but within the lateral
lines of right of way held by easement.
"Parcels
assessed under: Imp. Ord. 568-D and Pro. No. D-33318 (Par.
II, Page 4); Imp. Ord. 659-D and Pro. No. 38350 (Par. III,
Page 4).
"
Fourth Class
"
Assessments against parcels of land, owned in fee,
lying outside roadbed and outside right of way held by
easement, but within the projected lateral lines of right
of way held by easement.
"Parcels
assessed under: Imp. Ord. 568-D and Pro. No. D-33317 (Par.
II, Page 4); Imp. Ord. 659-D and Pro. No. D-38347 (Par.
III, Page 5); Lots 20 and 25, Meades Subdivision of Block
15, Montgomery & Parkes Survey (Par. VIII, Page 8).
"
Fifth Class
"
Assessments against lots owned in fee and lying outside
main line right of way or right of way projected, but
traversed by a side line of railway track connecting with
main line track.
"Parcels
assessed under: Imp. Ord. 1218-D and Pro. Nos. D-76070,
D-76071 and D-76072 (Par. VIII-C, Page 12).
"
Sixth Class
"
Assessments against lots owned in fee and lying outside
main line right of way or right of way projected, but
occupied by switch tracks, side tracks and repair tracks,
constituting freight yard.
"Lots
1 thru 10, Block 116; Lots 1 thru 10, Block 199; Lots 1
thru 10, Block 417; and Lots 1 thru 10, Block 220; assessed
under Imp. Ord. 1349-D (Par. VIII-E, Page 21).
"
Seventh Class
"
Assessments against property owned in fee and lying
outside main line right of way or right of way projected
and occupied by roundhouse and repair tracks.
"Parcels
assessed under: Imp. Ord. 745-D and Pro. Nos. D-44446 and
D-44467 (Par. I, Page 3); Imp. Ord. 786-D and Pro. No.
44469 (Par. IV, Page 5).
"
Eighth Class
"
Assessment against property owned in fee and lying
outside main line right of way and right of way projected
and occupied by coal bin, yard office and two single
tracks.
"Parcel
assessed under: Imp. Ord. 786-D and Pro. No. D-41463 (Par.
IV, Page 5).
"
Ninth Class
"
Assessments against property owned in fee and lying
outside main line right of way and right of way projected
and occupied by building used as passenger and freight
station.
"Assessment
under Imp. Ord. 659-D and Pro. No. D-38346 (Par. III, Page
5).
"
Tenth Class
"
Assessments against property owned in fee and lying
outside main line right of way and right of way projected,
and not in present use for railroad purposes, but reserved
for future expansion.
"Assessments
under: Imp. Ord. 745-D and Pro. No. D-44402, D-44422,
D-44423, D-44444, D-44445 (Par. I, Page 3); Imp. Ord. 858-D
and Pro. Nos. D-48645, D-48644, D-48643, D-48642, D-48641,
D-48667 (Par. VI, Pages 6-7); Imp. Ord. 863-D and Pro. Nos.
D-73543, D-73544 (Par. VIII-B, Page 11); Imp. Ord. 492-D.
All property described in Par. VII, as amended, (Page 7),
except right of
way assessed under D-45865 (Par. VII, as amended, Page 10);
Imp. Ord. 1349-D-Lots 11 thru 20, Block 116; Lots 11 thru
20, Block 199; Lots 11 thru 20, Block 220; Lots 11 thru 20,
Block 417 (Par. VIII-E, Page 22).
"The
demurrers of the defendants challenged the equity of the
bill as it related to each separate class of railroad
property (13-19; 23). The decree of the lower court upheld
the equity of the bill in those aspects which sought
injunction against sale of the first four classes of
property (24-25), and denied the equity thereof in those
aspects which sought injunction against sale of the
remaining classes (25). * * *
"Complainant
alleges that each of said assessments is void and is
unauthorized by statute or otherwise, and that each of said
lots is necessary for the proper
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