Harton v. Town of Avondale

• Decision Date: 06 July 1906
• Citation: 147 Ala. 458,41 So. 934
• Parties: HARTON v. TOWN OF AVONDALE.
• Court: Alabama Supreme Court

41 So. 934

147 Ala. 458

HARTON v. TOWN OF AVONDALE.

Supreme Court of Alabama

July 6, 1906

Appeal from City Court of Birmingham; C. W. Ferguson, Judge.

"To be officially reported."

Bill by Lula B. Harton against the town of Avondale. From a decree in favor of defendant, plaintiff appeals. Reversed.

This was a bill filed by appellant against appellee, reciting that certain street improvements had been made abutting her property, and that the costs of said street improvement had been assessed against her property, without regard to the benefits accruing from said improvement to her property, and greatly in excess of the value derived from said improvement or the benefits accruing to the property therefrom, and alleging, also, the acts of the General Assembly under the authority of which the town of Avondale was making these assessments. Acts 1894-95, p. 137. The prayer of the bill is that writs of supersedeas and certiorari be issued from this court, directed to the mayor and aldermen of the town of Avondale, commanding them to "stay all further proceedings and to send forthwith a certified copy of the entire proceedings and records to this court, and that upon consideration by this court of said proceeding the said assessment shall be declared null and void and of no effect." On the final hearing of the cause the trial court found the issues in favor of the defendant, and entered a judgment for the amount of the original assessment, plus 8 per cent. interest, and also adjudged that the judgment should be a lien upon the lots of the appellant. From this judgment, she appeals. There was motion to dismiss bill of exceptions, because not signed in time, the facts concerning which sufficiently appear in the opinion.

Ledbeater & Johnson, for appellant.

Bowman Harsh & Beddow, for appellee.

SIMPSON J.

It appears from the record that the judgment appealed from in this case was rendered on January 31, 1905; that there were orders by the presiding judge successively extending the time for signing the bill of exceptions to December 1st; and that the bill was signed November 13, 1905, which was more than nine months after the date of the judgment and beyond the next term of the court. Section 620 of the Code of 1896 is imperative that "the time allowed for signing a bill of exceptions must not be extended beyond six months from the adjournment of court," and rule 30, p. 1200, of the Code of 1896, provides that the limit to which the signing may be extended by agreement is that it must be signed "before the next succeeding term of such court." Appellee claims that as the time when the bill of exceptions was signed in this case was after the commencement of the next succeeding term, and more than nine months after the judgment was rendered, the same cannot be considered. According to the act establishing the city court of Birmingham there is but one term of court, "commencing on the first Monday in September and ending on the last day of the succeeding June." Acts 1888-89, p. 995. This court has heretofore held that the limitation as to the next term of court, under rule 30, applies only to extensions by agreement. Cooley v. U.S. Savings & Loan Ass'n, 132 Ala. 590, 592, 31 So. 521. The extensions in this case were all by the presiding judge, and the bill was signed within six months after the adjournment of court, as shown by the act above cited.

But another question arises: The act establishing the city court of Birmingham provides that bills of exceptions "must be signed by the presiding judge of said court within sixty days after the day on which the issue or issues of fact to which such bill of exceptions relates was tried, unless the time for signing such bill of exceptions is extended by agreement of parties, or by order of the presiding judge, as now authorized by law respecting the signing of bills of exceptions in the circuit court." Acts 1888-89, p. 1000. Section 617 of Code of 1896 provides that "the court may, in term time, fix a time in which the bill of exceptions may be signed, and the judge may, in vacation, extend such time"; and section 619 provides that "the time fixed by the court or judge may be extended by agreement of the parties or their counsel, and the time fixed by agreement may be extended by the judge in vacation." This court has heretofore held that the judge of the city court cannot extend the time of signing a bill of exceptions during the sitting of the court; but on the authority of the case of Moss v. Mosley (Ala.) 41 So. 1013, this bill was properly signed.

The matter of local assessments for street improvements has been so completely "threshed over," as expressed in a previous decision of this court, that we will not attempt to go over the arguments pro and con in the various cases, but will merely allude to the latest expressions from the Supreme Court of the United States and our own court. The substance of the latest decision of the Supreme Court of the United States on this subject is (French v. Barber Asphalt Co., 181 U.S. 324, 21 S.Ct. 625, 45 L.Ed. 879) that it is not a violation of the 14th amendment to the Constitution of the United States to assess a portion or all of the cost of a street improvement against the lands abutting or in the immediate vicinity of the improvement. And the gravamen of the argument of the court is that this is a part of the taxing power of the government, and that from time immemorial governments have not pursued the ordinary processes of courts in collecting taxes; hence the methods of enforcing these assessments cannot be said to be "without due process of law," because there is not provision for a regular investigation by a court and jury in order to ascertain the amount of burden that shall be placed upon the property. It holds, also, that the "question of benefits and the property to which it extends is of necessity a question of fact, and, when the Legislature determines it in a case within its general power its decision must, of course, be final." Page 338 of 181 U.S., page 630 of 21 S.Ct. (45 L.Ed. 879). Quoting from the case of Spencer v. Merchant, 125 U.S. 345, 8 S.Ct 921, 31 L.Ed. 763, the court says: "In the absence of any more specific constitutional restriction than the general prohibition against taking property without due process of law, the Legislature of the state having the power to fix the sum necessary to be levied for the expense of a public improvement, and to order it to be assessed either like other taxes upon property generally, or only upon the lands benefited by the improvement, is authorized to determine both the amount of the whole tax and the class of lands which will receive the benefit, and should therefore bear the burden, although it may, if it sees fit, commit the ascertainment of either or both of these facts to the judgment of commissioners. Page 339 of 181 U.S., page 630 of 21 S.Ct. (45 L.Ed. 879). After giving analysis of the numerous cases on the subject, in most of which there seems to be a presumption that at some stage of the proceeding and in some way the property owner has had an opportunity to test the matter of the amount of benefits to his land by the improvement, the general conclusion is that it is a matter of legislative discretion to determine what proportion of the burden shall be borne by the property, and what by the public, and, while it is admitted that any assessment beyond the special benefits received by the improvement is, as to the excess, taking the property without due process of law, yet when the Legislature determines that the assessment is to be made in a certain way, as by the front foot, the presumption is that the Legislature has determined that that is the proper measure of the benefits received. Norwood v. Baker, 172 U.S. 269, 19 S.Ct. 187, 43 L.Ed. 443, is not opposed to the views of the court in this case, and explains that in that case the entire cost of opening the street was thrown upon the abutting property, which was "an act of confiscation," and that the legal effect of the decision was to prevent the enforcement of the particular assessment, and to let the village in its discretion make a new assessment "for so much of the expense of the opening of the street as was found upon due and proper inquiry to be equal to the special benefits accruing to the property" (pages 344, 345 of 181 U. S.) page 63 of 21 S.Ct. ; and the court say: "It may be conceded that courts of equity are always open to afford a remedy where there is an attempt under the guise of legal proceedings to deprive a person of his life, liberty, or property without due process of law." The court then calls attention to the fact that in the case before the court the lots along the street in question were of equal value, similarly situated with regard to the street, of equal depth and all "substantially on the grade of the street." While it is the opinion of the writer that the dissenting opinion of Justices Harlan, White, and McKenna has the advantage of the argument, yet in what shall be said in this opinion our conclusions shall be based on the opinion of the court as the law of the land.

Our own court has followed this decision, and held that it is a matter of legislative discretion to determine whether property abutting on the street will be benefited to the extent of the cost of paving the street along the front of such property, and to impose the cost upon the property "apportioning the charges thereto according to the distance the several lots may front upon the street so paved"; the argument being, as in the French-Barber Case, that when the Legislature determines that the assessment shall be made by the front foot the presumption is that the Legislature has determined that that is the proper measure...