City of Birmingham v. Seaboard Air Line Ry. Co.

• Court: Alabama Supreme Court
• Writing for the Court: PER CURIAM.
• Citation: City of Birmingham v. Seaboard Air Line Ry. Co., 148 So. 425, 227 Ala. 77 (Ala. 1933)
• Decision Date: 27 April 1933
• Docket Number: 6 Div. 245,245-A.
• Parties: CITY OF BIRMINGHAM et al. v. SEABOARD AIR LINE RY. CO. SEABOARD AIR LINE RY. CO. v. CITY OF BIRMINGHAM et al.

148 So. 425

227 Ala. 77

CITY OF BIRMINGHAM et al. v. SEABOARD AIR LINE RY. CO.

SEABOARD AIR LINE RY. CO. v. CITY OF BIRMINGHAM et al.

6 Div. 245, 245-A.

Supreme Court of Alabama

April 27, 1933

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.

W. J Wynn and Jas. H. Willis, both of Birmingham, for appellants.

Cabaniss & Johnston, of Birmingham, for appellee.

Harry Seale, of Mobile, and Stokely, Scrivner, Dominick & Smith, of Birmingham, amici curiæ.

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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