Ex parte Gudenrath

• Decision Date: 17 June 1915
• Docket Number: 841
• Citation: 69 So. 629,194 Ala. 568
• Parties: Ex parte GUDENRATH. v. GUDENRATH. CITY OF HUNTSVILLE
• Court: Alabama Supreme Court

69 So. 629

194 Ala. 568

Ex parte GUDENRATH.

CITY OF HUNTSVILLE v. GUDENRATH.

No. 841

Supreme Court of Alabama

June 17, 1915

Rehearing Denied July 2, 1915

Certiorari to Court of Appeals.

Certiorari by Otto Gudenrath to the Court of Appeals to review and revise a judgment of the court (68 So. 676) in the case of the City of Huntsville v. Otto Gudenrath. Writ denied.

McClellan and Thomas, JJ., dissenting.

S.S Pleasants, of Huntsville, for petitioner.

David A. Grayson, of Huntsville, opposed.

ANDERSON C.J.

Under the statute, as well as section 223 of the Constitution, no assessment can be made against the lot of an abutting owner for street improvements, unless the value of the property has been specially enhanced as a result of the improvements. The result is the ascertainment of this fact is essential to the assessment, and if an assessment is made against the property it necessarily involved a finding that the property had been benefited and not damaged.

Regardless of the general doctrine of res judicata as an estoppel, we have in the case at bar a statutory estoppel, which was invoked by the plea of which this petitioner complains. Had this plaintiff expressly consented to the assessment, there could be no question but what he would be bound by same, and could not attack the same in this collateral action for damages. And if the owner had an opportunity to object, and failed to do so, he would be estopped from making a collateral attack upon the judgment. Page & Jones on Taxation by Assessments, §§ 927 to 952. Our statute, however (section 1381 of the Code of 1907), makes a failure to object as therein provided a consent to the assessment; that is, gives the failure of the owner to avail himself of the statutory right to appear and file his objections, as there provided the same effect as an express consent to the assessment. The plea unquestionably sets up a complete statutory estoppel.

The statute (section 1377) prescribes a notice by publication and section 1379 relates to the contents of the notice. Section 1378 prescribes a time for hearing objections to the assessment, and section 1381 provides for the method of making objections and defenses, and section 1389 gives the right of appeal to the circuit or any court of like jurisdiction. This is due process, and gives the owner the right to defend as against the assessment, and answers every requirement of state and federal Constitutions. It is true that the statute does not provide for personal notice, but this is not essential. Decatur v. Brock, 170 Ala 149, 54 So. 209; City of Birmingham v. Wills, 178 Ala. 198, 59 So. 173, Ann.Cas.1915B, 746.

"The phrase, 'due process of law,' in matters of taxation and local assessments, does not necessarily mean a judicial proceeding with the notice and hearing appropriate thereto. The power to tax belongs exclusively to the legislative branch of the government, and when the law provides the mode of confirming or contesting the charge imposed, with such notice to the person as is appropriate to the case, the assessment cannot be said to deprive the owner of his property without due process of law. Hence, in the case of property taxes imposed at regularly recurring periods for general, state, or municipal purposes, a statute fixing a definite body before whom and a time when complaints may be made, and a hearing had thereon, gives all the notice that is required by due process of law. And in the case of both general taxes and special assessments notice by publication, reasonably and properly given, satisfies the constitutional requirement." Dillon on Municipal Corporations, vol. 4, § 2365, and many cases cited under note 1.

As to whether or not notice is essential, when a personal judgment is provided or rendered, is a question with which we are not now concerned, as the statute in question does not authorize a personal judgment. Outside of the question, however, of personal liability, personal service is unnecessary, and a reasonable notice given by publication is sufficient Wight v. Davidson, 181 U.S. 371, 21 Sup.Ct. 616, 45 L.Ed. 900.

Nor is the statute in question repugnant to section 235 of the Constitution, as the owner is not deprived of any right guaranteed thereunder. Section 1361 requires an ordinance describing the work, setting forth plans, specifications etc. Section 1362 provides for the publication of the ordinance, and section 1364 provides for objections by the owner. The owner, therefore, has the right to object to the work, and if he is overruled in this he can enjoin the work, in case it is to injure his property, until his damages are ascertained and the same is paid. If he does not pursue this course, but suffers the work to be done without protest, he still has an opportunity, under section 1381, to appear and object to the assessment, with the right of appeal, and if it is ascertained that his property has not been specially benefited, but was damaged, he can bring an action at law for same. But the Legislature has the inherent power to prescribe a...