City of Mobile v. Smith

• Decision Date: 18 June 1931
• Docket Number: 1 Div. 626.
• Citation: 136 So. 851,223 Ala. 480
• Parties: CITY OF MOBILE v. SMITH.
• Court: Alabama Supreme Court

136 So. 851

223 Ala. 480

CITY OF MOBILE v. SMITH.

1 Div. 626.

Supreme Court of Alabama

June 18, 1931

Rehearing Denied Oct. 22, 1931.

Appeal from Circuit Court, Mobile County; Joel W. Goldsby, Judge.

Bill in equity by Harry H. Smith against the City of Mobile and others. From a decree for complainant, the named respondent appeals.

Reversed rendered, and remanded.

Vincent F. Kilborn, of Mobile, for appellant.

Smith &amp Johnston, of Mobile, for appellee.

BROWN J.

The bill in this case was filed by the appellee under article 2 of chapter 336 of the Code of 1923, relating to "Proceedings in Rem to Establish Title to Land," against the city of Mobile, Merchants' National Bank of Mobile, and the "property fronting on Springhill Avenue" described in the bill.

The substance of the averments of the bill is that the complainant is in the actual peaceable possession of the property which is described in the bill with certainty; that complainant claims a fee-simple title thereto, under warranty deed, dated December 22, 1920, and recorded in Book 189, N S. pp. 434, 435, Probate Records of Mobile County, Ala.; that, so far as complainant knows or is able to ascertain, no one has, during the past ten years, claimed any right, title, or interest in or to said lands, except the city of Mobile, which claims a lien on said property for paving the north side of Springhill avenue adjacent to said property; that, by an ordinance passed and adopted by the city of Mobile, on, to wit, December 8, 1925, it was provided that the cost of improvements to the street in front of said property be assessed against said property and constitute a lien thereon to secure the payment of said improvements; that the city passed an ordinance fixing the assessment for improvements in paving venture No. 23, against the adjoining property owners, the pavement in front of complainant's property being a part of said venture, at $5.77 per front foot; that a resolution was adopted calling for bids upon bonds to be sold for the purpose of paying for said improvements, and stating the provisions and terms to be contained in said bonds, among others, that, the bonds in addition to being a direct and primary obligation of the city, their payment was secured by a lien upon the property abutting on the streets and alleys in said city included in the area of said venture No. 23, the cost covered by such lien to be collected and kept in a separate rate fund for the sole and exclusive use and purpose of paying the bonds and the interest thereon, and provided in the ordinance; that, pursuant to the ordinance providing for the sale of said bonds, they were sold to the highest bidder, on June 22, 1926, and were purchased by the Merchants' Bank of Mobile, the predecessor of the respondent, Merchants' National Bank; that such bonds were issued and delivered to said bank to the amount of $462,000, providing for a lien upon the property abutting on said streets, within said area, including the property of complainant; that said respondent bank has sold and disposed of a large portion, if not all, of said bonds, "but complainant does not know and is not able to ascertain who are the present owners of the said bonds," but that the "holders of said bonds now claim a lien upon complainant's property as part security for the payment thereof"; that prior to April 10, 1923, complainant's property was not within the corporate limits of the city, and on said date the city commissioners, as authorized by article 4, chapter 32 of the Code of 1907 (article 4 of chapter 43, Code 1923), extended the corporate limits so as to embrace the area in which complainant's property was situated, which extension was ratified by an election held in pursuance thereof; that improvements made by said city, the cost of which is sought to be charged against complainant's property, were not for sanitary sewers, and that the majority of the property owners on the street or streets, for the improvement of which the city has attempted to assess said property, including complainant's did not sign written petitions for such improvements, and no such petitions were filed with the city clerk prior to the passage of said improvement ordinances.

The bill prays that, upon final hearing, a decree be entered "that the City of Mobile had no right, power or authority to assess the cost of the paving of Springhill avenue in front of said property against complainant, and had no right, power or authority to create a lien on complainant's property for the payment of said improvements, and that this court will further decree that the holders of the bonds issued by the City of Mobile purporting to constitute a lien upon the property abutting upon streets and alleys in the City of Mobile, included in the area known as 23rd paving venture or improvement, do not constitute a lien or cloud upon complainant's title, and complainant further prays that this court will decree that complainant is the fee simple owner of the said property, and that said property is free from any encumbrance whatsoever," and for general relief.

The respondent, city of Mobile, filed demurrers to the bill, asserting that the bill was without equity, that the complainant, by failing to appear and make objection to the assessment, is now estopped to question the authority of the city commissioners and the regularity of the proceedings creating said lien.

The demurrers were overruled, and the respondent, city of Mobile, answered, alleging:

That said improvements consisted of grading Springhill avenue on which complainant's property abuts, installing and constructing thereon concrete curbing, concrete gutters, and underground drainage. That the venture was duly initiated by an ordinance adopted December 8, 1925, in pursuance of the general authority vested in the city by article 33 of chapter 43 of the Code, and in compliance with section 2176 thereof. That the ordinance was published as required by section 2178, and a copy thereof sent by registered mail to complainant, as required by said section.

After the completion of said improvements, an assessment book for local improvements was prepared and kept as required by section 2191, and delivered to the city clerk, and notice given by publication as required by sections 2192 and 2194 of the Code, fixing the date for hearing objections by the city commissioners, and although complainant received notice of the initial ordinance and had notice and knowledge, prior to the time the assessment was made final and while the improvements were being made, that the city commission would attempt to levy an assessment against his property, and made no objection to said assessment until after said assessment was made final, and then only by the filing of the bill in this case.

That assessment, amounting to $1,194.23, was made final by an ordinance adopted July 26, 1927, and no part thereof has been paid. That the bonds of the city were issued and sold as alleged in the bill, and purchased by the Merchants' Bank, but the city has no information as to the present owners, and that, by reason of complainant's failure to object as provided by article 33, chapter 43, of the Code, he is now estopped.

The answer is made a cross-bill, and prays that the lien resulting from the assessment be enforced against the property.

The respondent bank answered, alleging that it purchased and sold the bonds issued for the cost of said improvements, but is not advised as to the present owners thereof.

Demurrers were filed by the complainant to the cross-bill of the city, taking the point that, under the provisions of article 4, chapter 43, of the Code, the area embracing the complainant's property was included within the city of Mobile by extending its corporate limits, and the ordinance adopted thereunder exempting the property located therein from taxation for betterments or improvements, except sanitary sewers, in the absence of written petition filed by a majority of the owners fronting streets to be improved, filed with the city clerk, constitutes a contract between the property owners within such area, and the property owners were under no duty to make objection to such assessment, and, by complainant's failure to object, has not waived the benefit of such contract, and is not estopped to question the authority of the city to levy assessments against said property.

The demurrers to the cross-bill were sustained, and the cause was thereupon submitted upon an agreement as to the facts, and the bill and answer, resulting in a decree enjoining the city of Mobile from taking steps or action to enforce a lien against the said property of complainant for improvements made to Springhill avenue in front of said property; that the bonds issued by the city of Mobile in connection with said paving venture No. 23 do not constitute a lien upon complainant's property, and that the holders of said bonds have no lien whatsoever upon complainant's property; and taxing the city with the cost of the proceedings; hence this appeal.

The agreement as to the facts sustains the material averments of the bill, and the material averments of the answer as well, and the question presented is one of law.

The appellant's contention is that complainant's failure to appear and file objections to the assessment, before it was made final as authorized by section 2196, is tantamount to giving his consent to the assessment, and he is now estopped to question the existence of the lien.

The appellee's contention, on the other hand, is that the statute, Code of 1923, § 1809, which provides: "The council or governing body of the city shall have no authority or power to construct or cause to be constructed any improvements or betterments in...