City of Jasper v. Sanders

• Decision Date: 26 January 1933
• Docket Number: 6 Div. 238.
• Parties: CITY OF JASPER ET AL. v. SANDERS.
• Court: Alabama Supreme Court

145 So. 827

226 Ala. 84

CITY OF JASPER ET AL. v. SANDERS.

6 Div. 238.

Supreme Court of Alabama

January 26, 1933

Appeal from Circuit Court, Walker County; Ernest Lacy, Judge.

Bill to cancel assessment for street improvements by S. M. Sanders against the City of Jasper and others. From a decree for complainant, respondents appeal.

Affirmed.

Davis &amp Curtis and Chas. R. Wiggins, all of Jasper, for appellants.

D. A McGregor, of Jasper, for appellee.

THOMAS J.

The appeal by the city is from a decree overruling a demurrer to the bill, a direct attack on an assessment for municipal paving done, and in rendering a decree for the complainant.

A phase of this case was before the court in Jasper Land Co. v City of Jasper, 220 Ala. 639, 641, 127 So. 210. The holding was that due process of law must be observed in proceedings by municipalities for improvements and the local assessments therefor, fixing liens on adjacent lands; that the recitals of the final judgment of the city authorities as that the assessment rolls were on file in the proper office for the required time, are prima facie evidence that such was the fact; and, on direct attack, alleging that such fact did not exist, the existence vel non of such necessary and jurisdictional fact becomes the subject of proof, no rights of third persons having intervened. Wise v Miller, 215 Ala. 660, 111 So. 913; City of Hartselle v. Culver, 216 Ala. 668, 671, 114 So. 58; Hood v. City of Bessemer, 213 Ala. 225, 104 So. 325; Grant v. City of Birmingham, 210 Ala. 239, 97 So. 731; Stovall v. City of Jasper, 218 Ala. 282, 287, 118 So. 467; Brintle v. Wood, 223 Ala. 472, 136 So. 803; Hamrick v. Town of Albertville, 219 Ala. 465, 122 So. 448; Id., 223 Ala. 216, 135 So. 326; 34 C.J. page 550, note 35; 1 Black's Judgments, § 288.

The statutory requirements are set forth in section 2176 of the Code, requiring an ordinance or resolution describing the improvement desired, and ordering the drawing of plans, specifications, etc. (Stovall v. City of Jasper, 215 Ala. 300, 110 So. 317; Hood v. City of Bessemer, supra), and section 2177 of the Code, requiring the plans, specifications, etc., when completed, to be duly filed for examination by the parties in interest, and time is given to await a due remonstrance or objection by parties having the right to object (Stovall v. City of Jasper, 218 Ala. 282, 118 So. 467). It is provided by section 2178 of the Code that notice by publication of the ordinance for improvements to be made must be published once a week for two consecutive weeks, etc. Schwend v. City of Birmingham, 215 Ala. 491, 111 So. 205; Stovall v. City of Jasper, 218 Ala. 282, 283, 118 So. 467. Section 2179 of the Code deals with the hearing of objection or protest against said improvement, materials to be used, or selection to be made, and the result as to confirmation, amendment, modification, or rescission of the "original ordinance or resolution." City of Albany v. Spragins, 208 Ala. 122, 93 So. 803; Sanders v. City of Troy, 211 Ala. 331, 100 So. 483; Garner v. City of Anniston, 178 Ala. 430, 59 So. 654; Hood v. City of Bessemer, 213 Ala. 225, 104 So. 325; Stovall v. City of Jasper, 218 Ala. 283, 118 So. 467; City of Mobile v. Smith, 223 Ala. 480, 482, 136 So. 851. Section 2181 of the Code deals with the fixing of the grade lines before the passage of the final resolution or ordinance (City of Birmingham v. Wills, 178 Ala. 198, 59 So. 173, Ann. Cas. 1915B, 746); and section 2182 provides for the final notice to be given by advertisement for bids (Holley v. Brunson, Mayor, 221 Ala. 572, 130 So. 173, Frasch v. City of Prichard, 224 Ala. 410, 140 So. 394). It is further required by section 2190 of the Code that, when the improvement made is completed, the mayor or other chief executive officer shall require the roll or list of owners, lots, or parcels of property to be assessed against to be prepared, showing the names of the property owners, "and opposite each name a description of each lot or parcel of land proposed to be assessed for such improvement, belonging to such owner or owners, and the amount proposed to be assessed against each lot or parcel of land." Jasper Land Co. v. City of Jasper, 220 Ala. 639, 127 So. 210; Peoples v. State Security Bank, 218 Ala. 534, 119 So. 226; Cabaniss v. City of Huntsville, 217 Ala. 678, 117 So. 316; Hood v. City of Bessemer, supra; City of Selma v. Hobbs, 207 Ala. 420, 92 So. 900. And, under the provisions of section 2191, the "assessment book for local improvement" is required to be prepared and kept as a public record. Act of 1927 (Acts 1927, p. 764); Jasper Land Co. v. City of Jasper, supra; Jones v. Lacey, 220 Ala. 390, 125 So. 635; City of Mobile v. Smith, 223 Ala. 480, 482, 136 So. 851. Code, § 2194, deals with the contents and sufficiency of the notice or publication of the assessment (Ex parte Gudenrath [In re City of Huntsville v. Gudenrath], 194 Ala. 568, 69 So. 629; Peoples v. State Security Bank, supra; Goodman v. City of Birmingham, 223 Ala. 199, 135 So. 336; City of Mobile v. Smith, 223 Ala. 480, 136 So. 851); and Code, § 2199, declares that the fixing of the amount of the assessment made against the respective lots or parcels of land, constitutes a lien on each lot or tract of land described and included in the assessment roll ( Cabaniss v. City of Huntsville, 217 Ala. 679, 117 So. 316; Stovall v. City of Jasper, 218 Ala. 282, 118 So. 467; Hamrick v. Town of Albertville, 219 Ala. 466, 122 So. 448; Penton v. Brown-Crummer Inv. Co., 222 Ala. 155, 131 So. 14; Bellenger v. Moragne [Ala. Sup.] 142 So. 657).

The statutory powers conferred on municipalities are discussed in Hood v. City of Bessemer, 213 Ala. 225, 227 104 So. 325, and the mandatory and material requirements are indicated and separated from mere technical errors; and the fundamental requirements are stated in the recent decisions. Jasper Land Co. v. City of Jasper, 220 Ala. 639, 127 So. 210, and authorities; City of Hartselle v. Culver, 216 Ala. 668, 114 So. 58; Stovall v. City of Jasper, 218 Ala. 282, 287, 118 So. 467; Peoples v. State Security Bank, 218 Ala. 534, 119 So. 226; Hamrick v. Town of Albertville, 219 Ala. 465, 471, 122 So. 448; Id., 223 Ala. 216, 135 So. 326; Goodman v. City of Birmingham, 223 Ala. 199, 135 So. 336; Garner v. City of Anniston, 178 Ala. 430, 59 So. 654; City of Birmingham v. Wills, 178 Ala. 198, 59 So. 173, Ann. Cas. 1915B, 746.

The bill before us, which is similar to that construed in Jasper Land Co. v. City of Jasper, 220 Ala. 639, 127 So. 210, 211, alleges that the assessment was void, among other things, for the reason (1) that the assessment roll required by law was not made up and filed with the clerk as required by statute and prior to the date the assessments were made final against the respective owners and their parcels of land to be affected; (2) that complainant had no notice or knowledge of the assessments as made at the time of the making thereof; and (3) that there was no evidence before the city council that any special benefits had accrued to his property by reason of the alleged improvements made, and that assessments against the lands bore no relation to such special benefits, but were levied on a yardage basis as indicated by the engineer.

It was declared in Jasper Land Co. v. City of Jasper, supra, that the required assessment roll made, filed, and open to inspection for the purpose of giving the parties in interest an opportunity to prepare proper objections for the hearing, is a part of the notice itself; that "the published notice gives no advice as to the amount of the assessment, the description of the property, etc., but refers the owner to the source of information prescribed by statute," and to which that owner was entitled; that, "if the data referred to as a basis of notice" did not exist in fact, though recited, and if such assessments were not delivered so as to become available until March 7, 1927, the day of the final hearing and assessment, there was a failure of due notice, and the assessment without due notice is made void for want of jurisdiction to the end in question. Day v. City of Montgomery, 207 Ala. 644, 93 So. 609; Id., 209 Ala. 609, 96 So. 894; Jasper Land Co. v. City of Jasper, 220 Ala. 641, 127 So. 210; Hamrick v. Town of Albertville, 219 Ala. 465, 474, 122 So. 448.

Application was duly made to the city council to reopen or vacate such assessment so made without authority of law and on stated grounds of lack of jurisdiction; and there was an effort on the part of the city council to do this, but on order of the court on mandamus was required to vacate same, though the city had reassessed the properties to be affected after jurisdictional facts had been supplied or obtained. Goodman v. City of Birmingham, 223 Ala. 199, 135 So. 336; section 2174, Code; section 223, Const. 1901; Stovall v. City of Jasper, supra.

The fact that application was made to the city council for vacation and reassessment differentiated the case of Jasper Land Co. v. City of Jasper, supra, from that of Penton v Brown-Crummer Inv. Co., 222 Ala. 155, 131 So. 14, 16. In the latter case it was declared that equity will remove a cloud on a title arising from a void assessment, where the invalidity does not appear on the face of the proceedings. It was further observed in the Penton Case, that "It is well settled that courts of equity have jurisdiction and will intervene, at the insistence of the owner of real estate, to remove a cloud on his title arising from a void assessment for taxes or public improvement schemes, where the invalidity does not appear on the face of the proceedings, and extraneous evidence is required to develop the invalidity. 4 Dil. Municipal Corp. (5th Ed.) § 1590; 1 Pom. Eq. Juris. §§ 259-270; ...