City of Decatur v. Brock

• Decision Date: 17 November 1910
• Citation: 54 So. 209,170 Ala. 149
• Parties: CITY OF DECATUR v. BROCK.
• Court: Alabama Supreme Court

54 So. 209

170 Ala. 149

CITY OF DECATUR v. BROCK.

Supreme Court of Alabama

November 17, 1910

On Rehearing, Jan. 12, 1911.

Appeal from Law and Equity Court, Morgan County; Thomas W. Wert Judge.

Certiorari by John L. Brock to the Mayor and Aldermen of the City of Decatur to review the action of the Mayor and the Board of Aldermen in making street improvements and assessments therefor. From an order granting the writ and quashing the proceedings, the city appeals. Reversed and rendered.

Callahan & Harris and W. B. C. Pilcher, for appellant.

E. W Godbey, for appellee.

ANDERSON J.

Section 223 of the Constitution of 1901 says: "No city, town, or other municipality shall make any assessment for the cost of sidewalks or street paving, or for the cost of the construction of any sewers against property abutting on such street or sidewalk so paved, or drained by such sewers, in excess of the increased value of such property by reason of the special benefits derived from such improvements." Section 9, Act 1907, p. 300, providing for the power and authority to assess cost of street improvements, says "that in no case shall the assessment against any lot or parcel of land be greater than the increased value of such lot or parcel of land by reason of the special benefits to be derived from such improvement." It may be, and doubtless is true, that the assessment is not to be based solely and entirely upon the increased value of the improvement of the lot or parcel, but can be made on it in its entirety upon a measurement or general valuation basis, and the value of the improvement is a limitation or restriction on the amount of the assessment. City of Montgomery v. Birdsong, 126 Ala. 651, 28 So. 522; Norwood v. Baker, 172 U.S 269, 19 S.Ct. 187, 43 L.Ed. 443. The restriction placed by the Supreme Court of the United States upon the amount of the assessment, and with which our Constitution (section 223) was intended to harmonize, was that it should not exceed the value of the improvement to the lot or parcel. In other words, the tax against the owner should be no greater than the benefits derived by him because of said extension or improvement. The Constitution or statute does not limit or restrict the assessment solely upon the amount of the increased value of the lot or prevent an assessment on the whole lot ad valorem or by measurement, but simply restricts it so that it cannot exceed the value of the improvement of the property. The act gave the mayor and councilmen authority to levy and assess the tax and the ordinances passed by them. Section 2 to ordinances 16 and 17 provide that the amount to be assessed should not exceed the value of the special benefits derived by virtue of the said improvements. The act gave the municipal authorities jurisdiction to levy the tax and make the assessment, and the adoption of the ordinances in compliance with the act was the exercise of the jurisdiction, and whether the assessment should or should not respond to the ordinance and set out the value of the benefits or that the assessment did not exceed the benefit we need not decide, as this omission did not render the assessment void. It was authorized by the ordinance which limited it so as not to exceed the value of the benefits derived, and we can presume that the ordinances which should be considered with the assessment were complied with. Indeed, the statute presumes the correctness of the assessment upon appeal (section 12 of the act), and one of the main things to be determined on the appeal is whether or not the assessment exceeds the value of the benefits and which we think would be defensive matter. The municipality would show the assessment, and it would be incumbent upon the owner to show that it was excessive. The act gave the jurisdiction and the ordinances showed an exercise of same, and recited the jurisdictional fact, and the failure of the assessment to recite that the levy did not exceed the value of the benefits did not render the same void, as the ordinances, which showed the acquirement of jurisdiction of the rem, could be looked to in connection with the assessment.

This conclusion is not in conflict with the holding in the case of City of Montgomery v. Foster, 133 Ala. 587, 32 So. 610. In that case neither the ordinance nor the assessment showed that the levy must not exceed the value of the benefits, and the court pronounced the assessment void. The opinion discusses the ordinance, and, in effect, pronounces the assessment void, because the foundation of the proceedings (the ordinance) was a mere nullity. It does not hold that this recital should appear in the assessment, and we think that the assessment would not have been held void if based on a valid ordinance. We are cited to many authorities by counsel for appellee which hold that the assessments therein considered were void, but they are based on statutes or constitutions unlike ours. They provided that the assessment be only upon the amount of benefits or be proportioned as per benefits derived from the improvements, while ours is not based upon the benefits, but is authorized against the lot or parcel, with the restriction that the assessment cannot exceed the value of the benefits derived. Moreover, in some of them this material fact was not disclosed either in the assessment or the ordinance directing or authorizing same.

In the case of Crawford v. People, 82 Ill. 557, it was held that: "Where an ordinance of such town, appointing commissioners to assess a certain sum for public improvements upon property to be thereby benefited, recites that the trustees have upon proper examination made by them ascertained and determined that there was real estate in the town benefited to the amount required to be assessed, this is a sufficient finding of the fact, and it is not necessary that the commissioners should ascertain the fact again in making the assessment." The assessment in this case was upheld, notwithstanding it did not recite that the assessment did not exceed the benefits, and this case supports, rather than being opposed, to the conclusion...