City of Huntsville v. Pulley

• Decision Date: 09 April 1914
• Docket Number: 650
• Citation: 65 So. 405,187 Ala. 367
• Parties: CITY OF HUNTSVILLE v. PULLEY.
• Court: Alabama Supreme Court

65 So. 405

187 Ala. 367

CITY OF HUNTSVILLE v. PULLEY.

No. 650

Supreme Court of Alabama

April 9, 1914

Rehearing Denied June 4, 1914

Appeal from Circuit Court, Madison County; A.H. Alston, Judge.

Assessment proceeding by the City of Huntsville against Georgia A Pulley. Judgment for defendant in the circuit court on appeal from the municipal council, and plaintiff appeals. Affirmed.

David A. Grayson, of Huntsville, for appellant.

S.S Pleasants, of Huntsville, for appellee.

SOMERVILLE J.

Section 1389 of the Code gives, to any one aggrieved by the decision of the municipal council in making an assessment for public improvements, the right of appeal to the circuit court, or other courts of like jurisdiction.

Section 1394 provides that such appeal "may be tried on the record without other pleadings, and the court shall hear all the objections" to the assessment, and shall determine whether it exceeds the increased value due to special benefits derived from the improvement, "and shall render judgment accordingly."

The word "court" is often used to designate the head of the tribunal in the person of the presiding judge, as contradistinguished from the jury. Ordinarily, however, it is used designate the tribunal itself, including its constituent parts of judge and jury, where it is thus regularly constituted by law. See the definitions collected in 2 Words & Phr. 1678, 1679, and in 11 Cyc. 656, note 10. Whether is it used restrictively or generically in any particular instance must be determined upon a consideration of subject-matter context, and the general policy of the law.

There is nothing in the language of the statutes above quoted which expressly indicates a legislative intention that these assessment cases shall or shall not be tried as other cases are tried in jury courts where issues of fact are presented. Nor does the language of other statutes, which give original or appellate jurisdiction to such courts with respect to matters not within their common-law jurisdiction, and not subject to the constitutional guaranty of trial by jury, throw any clear light upon the legislative intention as to the mode of trial to be observed on assessment appeals under section 1389, for sometimes they expressly provide that the trial shall be by jury, and sometimes "by the court without the intervention of a jury," and again only that the trial shall be de novo. See sections 2423 and 3909 (eminent domain); sections 2148 and 2378 (general and franchise tax assessments); section 5458 (quo warranto); sections 468 and 470 (election contests); and sections 4720 and 4722 (appeals from justice of the peace courts). In a case involving an assessment appeal statute very like ours, the Illinois court held that "court" included "jury" whenever a jury's peculiar functions were involved. The analysis of the subject by Scholfield, C.J., is worthy of reproduction:

"It would then seem to be clear that, where, by this section, the court is required to act, it must depend upon the nature of the act what agency of the court is called into exercise. If it be to determine what is the fact on any question, the jury must act. If it be to declare what in any case is the rule of law, or what is the legal conclusion from facts found, the judge must act; but the finding of fact is just as much the act of the court, if permitted to stand, as is the legal conclusion thereon pronounced by the judge. Each is an indispensable part of a legal unit, the judgment of the court. So here the jury must find the fact whether the property is benefited or not, and, if benefited, the amount. *** The judge then pronounces the conclusion of the law upon the verdict of the jury; in other words, renders judgment thereon. *** Each step will thus be the act of the court and meet the requirement of the statute." Mascall v. Drainage Commissioners, 122 Ill. 620, 14 N.E. 47.

Under our judicial polity, the jury is an indispensable constituent of a circuit court, and must try all issues of fact unless dispensed with by the parties litigant, except in appeal cases where the amount involved is less than $20. It has been the clear policy of our people, as exemplified by Constitutions and statutes, to submit all issues of fact in courts of law to the verdict of a jury, even where the Constitution does not so require. And hence, though we might concede the obscurity of the legislative purpose in the statutes under consideration, we think it is a sound rule of construction to hold that when original or appellate jurisdiction of any cause is vested by law in jury courts, and trial by jury is not plainly inhibited, a jury must be impaneled and a verdict rendered thereon, as in ordinary cases, unless a jury trial is waived by the parties. This rule is certainly in accord with the spirit of our laws, and the genius of our government. We therefore hold that the circuit court did not err in submitting this cause to a trial by jury.

The plaintiff, the city of Huntsville, offered to prove by record evidence that after the appealed assessment had been finally confirmed by the council, and pending this appeal therefrom, the new city commission met on May 7, 1912, and, pursuant to previous notice given by newspaper publication of an assessment roll fixing the several assessments for this improvement in due form, confirmed a reassessment made on April 10, 1912, against the property of the defendant, in the sum of $1,480.99.

The original assessment was made on July 18, 1911, and this later assessment of May, 1912, appears to have been founded upon the same initial ordinance and proceedings down to the making of the assessment roll, at which point the supplementary proceeding was begun. It does not appear that the original assessment of July, 1911, was ever vacated by the city, and the defendant, Mrs. Pulley, did not appear and make any objection to the assessment of May, 1912. The theory of the city is that this reassessment operated as a res judicata and, being shown in evidence, was binding upon the defendant and conclusive of the issue presented to the circuit court on this appeal. In support of this theory we are referred to the rule of procedure that a plaintiff may maintain and prosecute to judgment any number of suits on the same cause of action, in the absence of a plea in abatement setting up the pendency of...