Ex parte Hill

• Decision Date: 17 June 1915
• Docket Number: 114
• Citation: 194 Ala. 559,69 So. 598
• Parties: Ex parte HILL. v. HILL. CITY OF TUSCALOOSA
• Court: Alabama Supreme Court

69 So. 598

194 Ala. 559

Ex parte HILL.

CITY OF TUSCALOOSA v. HILL.

No. 114

Supreme Court of Alabama

June 17, 1915

Certiorari to Court of Appeals.

Certiorari by Mrs. Alonzo Hill to review and revise a judgment of the Court of Appeals (69 So. 486), reversing and remanding the case of the City of Tuscaloosa against petitioner. Writ denied.

McClellan and Gardner, JJ., dissenting in part.

Clarkson & Morrisette, of Tuscaloosa, for petitioner.

Brown &amp Ward, of Tuscaloosa, opposed.

ANDERSON C.J.

As stated in the cases of Decatur v. Brock, 170 Ala 149, 54 So. 209, and Harton v. Avondale, 147 Ala 458, 41 So. 934, section 223 of the Constitution of 1901, was adopted to meet the decisions in the cases of City of Montgomery v. Birdsong, 126 Ala. 651, 28 So. 522, and Norwood v. Baker, 172 U.S. 269, 19 Sup.Ct. 187, 43 L.Ed. 443. As pointed out in the Harton Case, supra, the Birdsong Case was explained and qualified to some extent in the case of Montgomery v. Moore, 140 Ala. 638, 37 So. 291, and the Baker Case by French v. Barber, 181 U.S. 324, 21 Sup.Ct. 625, 45 L.Ed. 879, but not in reference to what was meant by special benefits as a basis for the assessment. On the other hand, it is stated in the Harton Case, supra, that section 223 was made a part of our organic law when the said Birdsong and Norwood Cases were supposed to be the law. It was pointed out, also, in the Birdsong Case, that in order to charge the property with any of the cost of improvement the same must peculiarly or specially benefit the owner. See, also, Mayor v. Klein, 89 Ala. 461, 7 So. 386, 8 L.R.A. 369.

Section 223 of the Constitution reads as follows:

"No city, town, or other municipality shall make any assessment for the cost of sidewalks or street paving, or for the cost of the construction of any sewers against property abutting on such street or sidewalk so paved, or drained by such sewers, in excess of the increased value of such property by reason of the special benefits derived from such improvements." (Italics ours.)

It will be noted that to hold that the assessment can be based upon a general benefit to the property, or upon the enhancement of the value of same resulting from general benefits, as distinguished from an enhancement of the value by reason of special benefits derived from such improvement, would render meaningless the above italized words, and the section would be construed as if they were not included. Special benefits were inserted for some purpose, and it is evident that the assessment cannot be predicated upon a general enhancement of the value of the property, the difference in the market value before and after the improvement, regardless of a special benefit to the owner resulting from said improvement and which increased the value of the property. This holding not only gives force and effect to the plain and unambiguous language of section 223 of the Constitution, but is in conformity with the leading authorities and text-writers on the subject of special assessments. Dillon on Municipal Corporations, vol. 4, page 2553; Page & Jones on Assessments, vol. 2,§§ 654 to 702; McQuillen on Municipal Ordinances, § 522.

We are of the opinion that the holding of the majority of the Court of Appeals has failed to give force and effect to the special benefit feature of section 223, and said court erred in holding that an assessment can be levied upon the basis of a general enhancement in the value of the property, as distinguished from an enhanced value resulting from special benefits resulting to the owner from the improvements. The trial court properly gave charge 5 and the Court of Appeals erred in holding that it was reversible error.

The case of Decatur v. Brock, 170 Ala. 149, 54 So. 209, does not conflict with the present holding, and does not, therefore, support the holding of the Court of Appeals. The contention made in the Brock Case was that the assessment could not be made upon a front foot basis, and we merely held that such an assessment could be made, provided the amount did not exceed the benefits derived by the owner. The opinion did not undertake to discuss the character or nature of the benefits, and the question now under consideration was not involved.

Nor is the case of Huntsville v. Pulley, 65 So. 405, in conflict with this holding. In that case it seems that the defendant was asked if her property had been enhanced in value at all, and this was objected to upon the theory, no doubt, that it called for the conclusion of the witness, and the court merely stated the usual method of proving the enhancement or diminution in the value of property, and the writer...