City of Birmingham v. Abernathy

• Decision Date: 30 May 1912
• Parties: CITY OF BIRMINGHAM v. ABERNATHY.
• Court: Alabama Supreme Court

59 So. 180

178 Ala. 221

CITY OF BIRMINGHAM v. ABERNATHY.

Supreme Court of Alabama

May 30, 1912

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

Bill for an injunction by Mrs. C. O. Abernathy against the City of Birmingham. From the judgment, defendant appeals. Reversed and remanded.

Romaine Boyd, of Birmingham, for appellant.

F. E Blackburn, of Birmingham, for appellee.

SAYRE J.

This case differs from that shown in Birmingham v. Wills, 59 So. 173, in this only: In the body of the initial ordinance adopted by the town of West End in this case, the street upon which the inprovement was to be made was not named nor was there any designation of the terminal points of the improvement. However, the caption of the ordinance showed that First avenue was to be paved from Almons street to Green street. Section 1379 of the Code requires that the notice of hearing for final assessment "shall state the general character of the improvement, the terminal points thereof and streets, avenues, alleys, or other highways or portions thereof along which the improvement has been constructed."

On the authority of Birmingham v. Wills, supra, the presumption must be indulged, nothing being said to the contrary in complainant's bill, that the notice of hearing for final assessment conveyed to complainant information that an assessment would be levied against her property for its lawful share of the cost of the improvement.

By her failure to appear then and there to contest the assessment and the validity of the preliminary proceedings she is now estopped by force of the statute made to that end. We said in Garner v. City of Anniston, 2 Ala. App. 389, 56 So 874, that there must appear in any case of this character an initial ordinance of such sort as to show that the improvement is undertaken under the administrative or business authority conferred by the statute on the municipal council or board. Certain adjudicated cases are cited as holding that, where no statute requires municipal ordinances to be entitled, a title is unnecessary and must be treated as mere surplusage. They do not hold exactly that. Ex parte Haskell, 112 Cal. 412, 44 P. 725, 32 L. R. A. 527, and City of Tarkio v. Cook, 120 Mo. 1, 25 S.W. 202, 41 Am. St. Rep. 678, hold that the constitutional provision requiring that each law shall contain but one subject, which shall be clearly expressed in its title, was intended for the control of ...