Faust v. City of Huntsville

• Decision Date: 22 February 1888
• Parties: FAUST ET AL. v. CITY OF HUNTSVILLE.
• Court: Alabama Supreme Court

3 So. 771

83 Ala. 279

FAUST ET AL. v. CITY OF HUNTSVILLE.

Supreme Court of Alabama

February 22, 1888

Appeal from circuit court, Madison county; HENRY C. SPEAKE, Judge.

The appeal in this case is from the judgment in the circuit court dismissing a certiorari sued out by John A. Faust and others to review and quash certain proceedings of the corporate authorities of the city of Huntsville, whereby they sought to condemn and take possession of a piece of land constituting a part of the lot on which the appellants reside, and which they own and possess, for the alleged purpose of opening a street on or over such land. Appellants' petition for certiorari alleged that the proceedings under which the city authorities claimed to have condemned said property, and under which they were proceeding to take forcible possession, were irregular, null and void, and without any legal authority whatever. The circuit court dismissed the certiorari, on the ground that section 19 of the charter of the city of Huntsville gives appellants the right of appeal to the circuit court from said condemnation proceedings. The appellants claim that the provisions of said section 19 are null and void, because in conflict with constitutional provisions; and, further, that no adequate remedy by appeal was open to appellants. Section 19 of the charter of the city of Huntsville, upon the authority of which the court below dismissed the application for certiorari, provides among other things, that the jury, in assessing the damages shall be sworn "to assess and value what damages would be sustained by the owners of said lots or lands, by reason of the widening, extending, or opening of such streets, lane or alley as proposed, taking into consideration the benefit to said lots or lands resulting therefrom." The said section goes on, and provides that either party aggrieved by the action of the city authorities may take an appeal to the circuit court of the county, and also makes other provisions sufficiently set out in the opinion of the court. The dismissal of the application for the writ of certiorari is here assigned as error.

Humes, Walker, Sheffey & Gordon, for appellants.

William Richardson, for appellee.

SOMERVILLE J.

The process is one of common-law certiorari, to bring before the circuit court for review certain proceedings of the mayor and aldermen of the city of Huntsville in laying out a street over the lands of the appellants, situated within the municipal limits. The proceedings of condemnation were under section 19 of the charter of that city, which was enacted and approved March 3, 1870 (Acts 1869-70, p. 423,) and provides for the assessment of damages by a jury of commissioners or viewers appointed by the mayor of the city. The circuit court dismissed the petition out of that court, and this judgment is assigned as error.

The rule has long been settled in this state that a writ of certiorari will lie, in a proper case, to the circuit court to review the proceedings of municipal corporations, where they are charged with exceeding their chartered powers, or with violating any law or ordinance under which they have undertaken to act. Ex parte Tarlton, 2 Ala. 35; Intendant v. Chandler, 6 Ala. 899; City Council v. Belser, 53 Ala. 379. But the writ will not be entertained if an adequate remedy by appeal be given by the city charter, or otherwise by statute; or any other specific mode of review be provided. This is the rule applicable to writs of certiorari generally, as well as to those of the class now before us, seeking to review the action of a city council in laying out or constructing streets under the authority of their charter. City Council v. Belser, supra; Benton v. Taylor, 46 Ala. 388; Railroad Co. v. Christian, 82 Ala. 307; 1 South. Rep. 121; 3 certiorari.

We are of opinion that the provisions of the entire section, with the municipal ordinances attempted to be enacted to carry it into effect, are void for repugnancy to the constitution of 1868, which, as we have said, was in force when the statute was passed. It is provided by section 5 of article 13 of that instrument as follows: "No right of way shall be appropriated to the use of any corporation until full compensation therefor be first made in money, or secured by the deposit of money to the owner, irrespective of any benefit from any improvement by such corporation; which compensation shall be ascertained by a jury of twelve men, in a court of record, as shall be prescribed by law." Const. 1868, art. 13,§ 5. (1) This section, in the first place, provides that compensation shall first be made; which means, shall be made prior to any taking of possession or entry upon the premises under the condemnation proceedings,-a condition precedent, in the absence of which neither the title of the owner of the land, nor any easement in it, is divested. Railroad Co.

v.

Jones, 68 Ala. 48. The section under consideration is not clear in...