Garner v. City of Anniston

• Citation: 178 Ala. 430,59 So. 654
• Parties: GARNER v. CITY OF ANNISTON.
• Decision Date: 09 May 1912
• Court: Supreme Court of Alabama

59 So. 654

178 Ala. 430

GARNER v. CITY OF ANNISTON.

Supreme Court of Alabama

May 9, 1912

Rehearing Denied June 29, 1912.

Certiorari by the City of Anniston to review a judgment of the Court of Appeals (2 Ala. App. 389, 56 So. 874) reversing a judgment of the city court of Anniston overruling objections of R. E Garner to a municipal assessment. Reversed and remanded.

Willett & Willett and C. H. Young, all of Anniston, for appellant.

Knox Acker, Dixon & Sterne, of Anniston, for appellee.

SAYRE J.

Certiorari to the Court of Appeals. Petitioner, the city of Anniston complains of the ruling and opinion of the Court of Appeals as erroneous, in that it was there held that the initial resolution of the city council, preparatory to the paving of Tenth street and the assessment of a part of the cost thereof against lot 13, block 149, on the north side of the street, which said resolution, undertaking to comply with section 1361 of the Code, provided that the street should be paved with bitulithic pavement, vitrified brick, or other approved material, whereas said section provides that the initial ordinance or resolution in such proceedings shall describe "the general character of the materials to be used," was void, and the judgment had at the end of the proceeding, and on appeal from the assessment to the city court of Anniston, was also void and of no effect.

In our recent case of Birmingham v. Wills, 59 So. 173, we had occasion to consider the office of section 1381 of the Code, which undertakes to establish a legislative estoppel against property owners who, after due notice, fail to appear to contest the final assessment in proceedings of this character. The operation and effect of the section we held to be such as to relieve us in that case of the necessity of discriminating between those steps preliminary to the final assessment, which, in the absence of statutory estoppel, have been ordinarily considered necessary to the validity of the assessment, and those the omission or imperfect observance of which have been held for mere irregularities, not going to the validity of the proceeding and resultant assessment. In the case at hand, there had been no general waiver of the sort contemplated in that section 1381; the property owner appeared at the final assessment and urged certain objections. His objections having been overruled by the municipal council, and the assessment having been made final against him, the property owner took an appeal to the city court of Anniston. On such appeal the statute (Code, § 1394) provides that "the said cause may be tried on the record without other pleadings, and the court shall hear all the objections of the property owner or owners to said assessment and the amount thereof, and shall determine whether or not such assessment exceeds the increased value of such property by reason of the special benefits derived from the improvement, and shall render judgment accordingly;" and (section 1395) that, "if on the hearing of such appeal it shall appear that by reason of any technical irregularity or defect in the proceedings the assessment has not been properly made against the lot or parcel of land sought to be charged, the court may, nevertheless, on application of the city or town, upon satisfactory proof that expense has been incurred which is a proper charge against the lot or land in question, render judgment for the amount properly chargeable against said lot or land; but in such case the court shall make such order for the payment of the costs as it may deem proper." In view of their own language and the general scheme provided by these and related sections, we hold the provision to be that on appeal to the circuit or other court of like jurisdiction two issues may be tried: Whether errors or omissions, not waived by a failure to object before the council or municipal board, have intervened, and, if so, with what effect; whether the assessment exceeds the special benefits derived by the property from the improvement. If fundamental error be shown in the record, the proceeding, so far as it touches the interest or property of the party appealing, shall be abated or held for naught, in which case (section 1380) supplementary proceedings may be had, in order to supply or cure the defect. We take the last-mentioned provision (section 1380) to mean that as to the party appealing a reassessment may be had, in which the council or municipal board must begin anew and retrace its steps. The statute also intends that if there has been any irregularity or defect in the proceeding for assessment, merely technical, and not affecting the substantial rights of property owners, judgment on appeal must be rendered for the municipality for the amount of the assessment, not exceeding the special benefit conferred, and the court shall make such order for the payment of the costs as it may deem proper. If no fundamental error be shown, the issue whether the amount of the assessment against the property owner exceeds the benefit conferred must be tried in the usual way of determining issues of fact.

In this view of the statute, it may become necessary, in a case where, as here, the complete statutory estoppel of section 1381 does not operate, to determine what errors or omissions in the proceedings preliminary to the process for final assessment are so fundamental as to require, on objection taken, an abatement or declaration of invalidity, and what are those technical errors or irregularities which ought not to lead to that result. We think there can be no doubt that the requirement of an initial ordinance or resolution of some sort is indispensable. Indeed, an ordinance or resolution sufficient to show at least a bona fide intention and effort to exercise the authority conferred by the statute, though it may be seriously defective, is necessary in any case. An improvement undertaken without an ordinance or resolution to evidence the exercise of the power conferred by the statute would be the private enterprise of the individuals composing the council or municipal board, and could not, by estoppel or otherwise, impose liability on the municipality, nor eventuate in a lien upon the property of attingent owners. Just what defects in an initial ordinance or resolution will demand an abatement of the proceeding, upon objection timed as the statute requires, may be in some cases a question of difficulty. The specific objection upon which the property owner now insists arises out of that part of the...