City of Tuscaloosa v. Hill

• Decision Date: 08 April 1915
• Docket Number: 712
• Citation: 69 So. 486,14 Ala.App. 541
• Parties: CITY OF TUSCALOOSA v. HILL.
• Court: Alabama Court of Appeals

69 So. 486

14 Ala.App. 541

CITY OF TUSCALOOSA v. HILL.

No. 712

Court of Appeals of Alabama

April 8, 1915

Appeal from Tuscaloosa County Court; Henry B. Foster, Judge.

Assessment proceedings by the City of Tuscaloosa against Mrs. Alonza Hill. Judgment for contestant, and the City appeals. Reversed and remanded.

Thomas J., dissenting in part.

The facts sufficiently appear from the opinion with the following charges referred to in the opinion:

(1) If the fair market value of the property of the contestment was not increased by laying the pavement in front of the same, then your verdict should be for the contestment.

(3) Under the law in Alabama, the cost of improvements involved in this suit should be borne by the municipality under whose direction they were made, except such portion of said cost as is reflected in the increased value of the property which was peculiarly benefited thereby.

(4) By increase in the fair market value is meant increase in worth in dollars and cents, and, if contestant's property has not been so increased, you cannot find for the city.

(5) Only such benefits may be assessed against the property of contestant as confer a special and peculiar benefit upon said property, and no part of the cost of said improvements may be assessed against her on account of the increase in the market value of such property resulting from a general benefit in common with the rest of the community conferred by such improvements.

(6) Only that part of the increase in market value of Mrs Hill's property resulting from said improvements can be charged against said property which has resulted from the conferring of special benefit by the said improvements, and only to the extent of the increase in the market value resulting from these benefits, and that the expense of the performance of the ordinary public duties of the municipality for the general good must be defrayed from the general fund of the municipality, or by means of general taxation, and cannot be made the basis of legal or special assessments.

(7) The number of witnesses is not the proper criterion by which to weigh testimony.

(8) If Mrs. Hill's property was so located at the time that it needed no further drainage, then said property is not benefited by the construction of said storm drain, or sewer and you must find for contestant.

(9) If you are reasonably satisfied from the evidence in this case that the property of Mrs. Hill involved in this case is not benefited at all by reason of the pavement described in the assessment, then you cannot assess any of the cost of said pavement against said property.

(10) The city of Tuscaloosa cannot under the law make an assessment for the cost of street paving against the abutting property owner in excess of the increased value of such property by reason of the special benefit derived from such improvement.

(11) Same as 10, but applicable to storm sewer instead of pavement.

(12) By increase in value of such property by reason of the special benefits derived from such improvements it is meant that value expressed in dollars and cents which has been added to such property by reason of the special benefits derived from such improvements.

(13) Under the law no part of the cost of this street improvement can be assessed against Hill's property unless the money value of her land has been increased to some extent, and only that increased money value can be collected out of such land.

Brown &amp Ward and Oliver, Verner & Rice, all of Tuscaloosa, for appellant.

Clarkson & Morrisette, of Tuscaloosa, for appellee.

BROWN J.

This is a proceeding by the appellant under the local improvement statutes authorizing municipalities to levy the costs of laying sidewalks, curbing, paving, and street drains, not in excess of special benefits reflected in the increased value, against the abutting and drained property. Code, § 1359 et seq. The appellee appeared before the board of city commissioners and filed objections to the proposed assessment, as authorized by section 1381 of the Code, and, her objections being overruled by the board, she appealed to the Tuscaloosa county court. Code, §§ 1389, 1390.

The appellee insisted in the trial court: First, that the value of the property was not enhanced by the improvements, and no assessment at all should be allowed; and, second, that the assessment made was greater than the special benefits reflected in the increased value of the property, and therefore excessive. The appellant, on the other hand, insisted that the increased value of the property by reason of the improvements was equal to or more than the assessment. This presented an issue of fact which was submitted to a jury, and in this the appellant insists there was error.

While, no doubt, it is within legislative competency to authorize the trial of such issues in cases arising under the taxing power to be determined by a court without a jury, without impinging constitutional provisions (Cooley on Taxation [3d Ed.] pp. 5155; Page & Jones on Taxation by Assessment, §§ 202, 1347; Mayor and Aldermen of Birmingham v. Klein, 89 Ala. 461, 7 So. 386, 8 L.R.A. 369; French v. Barber Asphalt Co., 181 U.S. 324, 21 Sup.Ct. 625, 45 L.Ed. 879; McQuillan's Mun. Corp. §§ 2015, 2129), the question here presented does not involve the question and scope of legislative authority, but of legislative intent. In the absence of express provision in the statute requiring the court, without calling a jury, to try the issues of fact, the statute (Code, § 1394) is open to the construction that "the court" therein referred to is a court constituted of a judge and jury, and this view is strengthened by considering this section in the light of sections 1389 and 1390, authorizing appeals to only "the circuit court or any other court of like jurisdiction." The question is authoritatively settled in City of Huntsville v. Pulley, 65 So. 405, and the rulings of the trial court in accord with that case were correct.

The practice of allowing counsel, in the argument of a cause to the jury, to read to the jury, in the presence of the court, as a part of their argument, extracts from the published decisions of the Supreme and appellate courts of the state, when pertinent to the questions involved in the case on trial and containing correct expositions of the law applicable thereto, has been repeatedly approved, and from the repeated presentation of questions arising thereunder, as shown by the reported cases, we may assume has become the universal practice in this state. Stewart v. State, 78 Ala. 436; Cahaba Southern Mining Co. v. Pratt, 146 Ala. 245, 40 So. 943; Robinson v. State, 155 Ala. 67, 45 So. 916. In the case last cited the court, in justifying the argument, said:

"It was not the assertion of any fact, but simply an argument based on hypothetical statement."

The practice of using in argument facts not in evidence or resting in legitimate inferences from the evidence has never been approved (B.R., L. & P. Co. v. Drennen, 175 Ala. 349, 57 So. 876, Ann.Cas.1914C, 1037; Wilhite v. Fricke, 169 Ala. 76, 53 So. 157; Jones v. State, 170 Ala. 76, 54 So. 500; Jackson v. State, 2 Ala.App. 234, 57 So. 110, 7 Mayf.Dig. 57); and it can make no difference that the facts used in argument are contained in a reported decision of the Supreme Court and there stated as a basis for the pronouncement of that court in passing on the propriety of the ruling of the trial court refusing to disturb the verdict of a jury in a case involving similar facts and issues to the one on trial, when that pronouncement does not contain the statement of some proposition of law pertinent to the question pending before the jury.

In Cross v. State, 68 Ala. 476, the Supreme Court, in disposing of a question similar to the one here presented, said:

"In a single instance we think the presiding judge permitted counsel to transcend the legitimate boundary of discussion. In his closing argument the prosecuting attorney was allowed to state as facts what he alleged had occurred in the perpetration of another homicide having some alleged features analogous to those developed on this trial. Now, there was not only no evidence before the jury of that other homicide or its details, but such evidence, if offered, would have been illegal and irrelevant. This was not argument, and could furnish no safe or permissible aid to the jury in considering and weighing the testimony before them. The jury in their deliberations should consider no facts save those given in evidence."

In Williams v. State, 83 Ala. 68, 3 So. 743, the court said:

"The court did not err in refusing to permit counsel, in the course of his argument, to read to the jury the facts as reported in Brown v. State, 46 Ala. 176. These facts were not in evidence, would not have been admissible, and could not have been properly considered by the jury. The inevitable effect of putting facts before the jury foreign and irrelevant to the case would have been to institute a comparison between such facts and the facts of the case on trial, and thus have diverted their attention to extraneous issues."

The excerpts of the opinion in City of Huntsville v. Pulley, objected to, were specifically pointed out to the court before they were read as a part of the argument by opposing counsel, and the objection was overruled. The excerpts contained the statement of facts in another case, and the result of the trial before a jury, matters wholly incompetent and improper to be considered by the jury in the case on trial, and in them no principle of law was stated applicable to the issues on trial. The objection should have been sustained and the argument arrested by the trial court. B.R., L. & P. Co. v. Drennen, supra; Cross v. State, 68 Ala. 476.

In view...