Hamrick v. Town of Albertville

• Decision Date: 09 May 1929
• Docket Number: 8 Div. 74.
• Citation: 219 Ala. 465,122 So. 448
• Parties: HAMRICK v. TOWN OF ALBERTVILLE.
• Court: Alabama Supreme Court

122 So. 448

219 Ala. 465

HAMRICK v. TOWN OF ALBERTVILLE.

8 Div. 74.

Supreme Court of Alabama

May 9, 1929

Rehearing Denied May 30, 1929.

Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge.

Proceeding by the Town of Albertville against J. T. Hamrick to assess property for street improvements. From a judgment for plaintiff on appeal to the circuit court from the assessment made, defendant appeals. Reversed and remanded.

Inquiries as to dust, drainage, change of grade, and destruction of old pavement are pertinent in ascertaining damages by street paving (Code 1923,§ 2174 et seq.).

The following charges were given at plaintiff's request:

"5. The court charges the jury that if they believe the evidence they will find that the mayor and aldermen were all legally qualified to discharge all the duties of their respective offices.

"6. The court charges the jury that under the evidence the materials to be used in the improvement are sufficiently described in the original improvement ordinance.

"7. The court charges the jury that it is immaterial to any question to be decided by the jury that in the original improvement ordinance the materials to be used are stated in the alternative.

"8. The court charges the jury that the only amount you authorized to reduce the assessment because of attorneys' fees charged, if you find any part of such fees covers the trial of this case, would be that portion of 2 1/2% of the assessment of Mr. Hamrick's property as the jury find from the evidence is for the trial of this case."

The following requested charges were refused to defendant:

"1. If bonds were sold to pay for this construction work provided for under ordinance number 99, and the funds diverted to pay for a sewer or other improvements not included in ordinance No. 99, or any part of said funds were so used or diverted, then the cost of the sale of the bonds cannot be charged against this property in this case."

"3. The court charges the jury that if bonds were sold to pay for the street improvement of the streets described in the ordinances the town had no right to use the proceeds of the sale of the bonds for any other purpose."

"10. Where bonds have been sold to pay for the cost of improvement along or on a street or streets, the money cannot be diverted to pay for some other improvement and if so diverted the cost of the sale of such bonds nor the interest thereon are justly chargeable to the property in the assessment made under the improvement ordinance for which the bonds were sold to pay for such improvements.

"11. If in constructing this improvement the property of this defendant involved in this case is damaged by reason of water draining on or standing on said property involved in this case, rather than helped by said improvements, and you so find from all the evidence in this case, then you should find the issues in favor of this defendant."

"83. If the jury cannot reasonably determine the actual costs of the improvements made in front of defendant's lot and to the alley and avenue upon which said lot abuts, from all the evidence before the jury, and are left in doubt and speculation as to what was the actual legitimate amount of the expense incurred in making said improvements alone, then the verdict of the jury should be in favor of the defendant."

"85. If the jury, upon a consideration of all the evidence, cannot separate the amount paid attorneys for prosecuting the suits growing out of the entire assessments under the three ordinances, from the amount paid them for their other services as to the improvements, then the verdict should be in favor of the defendant."

"87. One of the fundamental propositions which must be done by the city council in order to uphold the assessment either in whole or in part is that the assessment shall be so made that the actual amount of the legal charges incurred in making the improvements can be reasonably ascertained by the jury from the evidence in the case and if the jury reasonably find from the evidence that some part of the attorney's fee charged against defendant's property were improperly charged but the amount of such improper charge cannot be reasonably determined from the evidence then the verdict of the jury should be in favor of the defendant."

"89. Gentlemen of the jury, under the law no increase in value to this lot in question can be taken into consideration to ascertain the increase in value to this property that is common to the remainder or other property in town but the increase in value must result specially to this property by reason solely of the improvements and no verdict of the jury can exceed this increase in value to this one lot in controversy.

"90. If during the consideration of the objections to the assessment the council went into secret session before the assessment was made final and in said secret session the matter was continued to another date upon which date the assessment was made final and the defendant was not given notice of the date upon which the assessment was made final then it does not matter that the final action was in open session of the council and the plaintiff cannot recover."

Claud D. Scruggs, of Guntersville, and E. O. McCord & Son, of Gadsden, for appellant.

W. R. Bradford, of Albertville, and O. D. Street & Son, of Birmingham, for appellee.

THOMAS J.

The appeal is from assessments for municipal street improvements under section 2174 et seq., Code, and was taken by the property owner as the party aggrieved by the decision of municipal authority. Section 2204, Code; Stovall v. City of Jasper, 215 Ala. 300, 110 So. 317; Id. (Ala. Sup.) 118 So. 467.

It is insisted by appellee's counsel that, if it be found that technical errors intervened, the trial was upon the facts as to special benefits, by reason of the improvements, under section 2210 of the Code; that is, provisions of the statute in the nature of a reassessment. City of Hartselle v. Culver, 216 Ala. 668, 114 So. 58; Ex parte Hill, 194 Ala. 559, 69 So. 598; Decatur Co. v. City of New Decatur, 198 Ala. 293, 73 So. 509. This issue was made on the trial and submission thereon by the court to the jury.

The city acting under general municipal powers was not required to show affirmative election to come within the provisions of the Municipal Code, §§ 1739, 1740, 2174, et seq., Code. The record shows the municipality was in the exercise of such well-recognized corporate functions and powers under the law. Cooper v. Valley Head, 212 Ala. 125, 101 So. 874; City of Birmingham v. Wills, 178 Ala. 198, 59 So. 173, Ann. Cas. 1915B, 746. Old charter provisions were supplanted by the municipal code (City of Birmingham v. Brown, 13 Ala. App. 654, 69 So. 263; Lewis v. Jenkins, 215 Ala. 680, 112 So. 205; §§ 1739, 1740, 1992, 2012, Code), or by some of its provisions.

The appeal being taken under the statute, section 2204 of the Code, to the circuit court, the pleading therein was the certified transcript of the proceedings had in the municipal court. The transcript was duly authenticated by its clerk and bore a prima facie evidentiary effect as to the correctness of the assessment purported to have been made. Stovall v. City of Jasper (Ala. Sup.) 118 So. 467. The questions for decision in that appeal are: (1) The actual costs of the public improvement that are properly and lawfully assessable as a special benefit to appellant's lot or parcel of property sought to be subjected to the assessment; (2) and whether the amount so assessed was excessive and not for the increased special benefits derived from the improvement. Stovall v. City of Jasper, supra.

This right of judicial inquiry and appeal in the circuit court of what transpired on municipal hearing was necessary to a due process in the premises. Ex parte Gudenrath, 194 Ala. 568, 69 So. 629; Stovall v. City of Jasper (Ala. Sup.) 118 So. 467; City of Tuscaloosa v. Hill, 194 Ala. 559, 69 So. 598; City of Huntsville v. Pulley, 187 Ala. 367, 65 So. 405; Cox v. City of Birmingham, 214 Ala. 584, 108 So. 625; Id, 21 Ala. App. 341, 108 So. 622.

And defects or errors in notice, or other proceedings, before or subsequent thereto, with respect to one or more interested persons, shall not affect the proceedings, "except in so far as it may touch the interest or property of such person" and "shall not avail any other person concerned"; and "supplementary proceedings of the same general character as those hereinbefore prescribed may be had in order to supply such defect." Section 2195, Code. See, also, section 2210, Code; City of Selma v. Hobbs, 207 Ala. 420, 92 So. 900.

The property of defendant (lot 1, block 1 in the survey of the town of Albertville) was located 75 feet on Scott avenue by 200 feet on Broad street. His dwelling faced the latter thoroughfare which was paved. The evidence of defendant was to the effect that he occupied the property or parcel of land at the corner of Scott avenue and Broad street as his home, and the dwelling was located on lot 1. And over his objection was shown that his orchard or garden was on lot 2 on Scott avenue, and his stable or garage was on the east half of lot 3 on Scott avenue, and that they all joined. The objection of defendant was that the fact of ownership, use, etc., of lot 2 and the east half of lot 3 tended to prejudice the jury as to making a proper assessment against lot 1; that is, tended to confuse the special benefits of lot 1 with other lots, and thereby in practical effect to impose upon lot 1 an additional burden of special resulting benefits in which his two other adjacent lots, if they are considered by reason of temporary use with the dwelling located on lot 1 at the time the pavement and improvement were made.

The fundamental requirements...