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 |
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:
The following requested charges were refused to defendant:
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.
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.
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City of Jasper v. Sanders
... ... 282, 287, 118 ... So. 467; Brintle v. Wood, 223 Ala. 472, 136 So. 803; ... Hamrick v. Town of Albertville, 219 Ala. 465, 122 ... So. 448; Id., 223 Ala. 216, 135 So. 326; 34 C.J ... ...
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Williams v. City of Dothan, Ala.
...47 Ala.App. 587, 259 So.2d 269, 275, 276 (1971), cert. denied, 288 Ala. 731, 259 So.2d 276 (1972); Hamrick v. Town of Albertville, 219 Ala. 465, 122 So. 448, 452-53 (1929); Stovall v. City of Jasper, 218 Ala. 282, 118 So. 467, 472 (1928). These cases make it clear that Alabama's statutory s......
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Hamrick v. Town of Albertville, 8 Div. 404.
...Ex parte Hill (City of Tuscaloosa v. Hill), 194 Ala. 559, 69 So. 598; Hamrick v. Town of Albertville, 219 Ala. 465, 122 So. 448; Id., 223 Ala. 216, 135 So. 326. It further declared that separate and severable items of charges and costs, if improperly included and assessed, may be eliminated......
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Ex parte Tsimpides
...circuit court, which court proceeding, we pointed out, was 'necessary to a due process in the premises' (citing Hamrick v. Town of Albertville, 219 Ala. 465, 122 So. 448, 452). In the instant case, as we have shown, petitioners have already had a day in a court. What they seek is a statutor......
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Some time in the shade: giving the public's legal counsel some relief under Alabama's Sunshine Law.
...with Senator Steve French, Alabama State Senator (Aug. 18, 2004) (Notes on file with author). (24) See Hamrick v. Town of Albertville, 122 So. 448 (Ala. 1929); Waters v. City of Birmingham, 209 So. 2d 388 (Ala. 1968). That the courts have upheld the law does not imply that the law is strict......