Hood v. City of Bessemer

• Decision Date: 19 March 1925
• Docket Number: 6 Div. 364
• Parties: HOOD v. CITY OF BESSEMER.
• Court: Alabama Supreme Court

104 So. 325

213 Ala. 225

HOOD v. CITY OF BESSEMER.

6 Div. 364

Supreme Court of Alabama

March 19, 1925

Rehearing Denied May 28, 1925

Appeal from Circuit Court, Jefferson County, Bessemer Division J.C.B. Gwin, Judge.

Proceeding by the City of Bessemer to fix an assessment against the property of Robert Hood for sidewalks, etc. From the judgment, defendant appeals. Transferred from Court of Appeals, under Acts 1911, p. 449, § 6. Corrected and affirmed.

McEniry & McEniry and J.A. Estes, all of Bessemer, for appellant.

Bumgardner & Wilson, of Bessemer, for appellee.

BOULDIN J.

This appeal is to review the judgment of the circuit court on appeal from the proceedings of the city of Bessemer making a local assessment upon the property of appellant for improvements--a sidewalk, gutter, and lateral sewer. Code 1923, § 2174 et seq.

In the circuit court the city filed a partial transcript of the proceedings before the city council, and later filed a fuller transcript covering all the proceedings. There was no error in allowing the latter transcript, duly certified, to be filed. Code, § 2207 (1392).

This transcript does not show any objections or defenses to the assessment filed in writing by the property owner upon the hearing given for that purpose, but merely that his counsel appeared and made certain objections. Code, § 2196 (1381). The bill of exceptions, however, shows the defendant "offered the following paper, showing the objections filed to the assessment before same was made final by the city of Bessemer, and after same had been shown to have been filed with J.M. Scott, city clerk, before the assessment was made final." Then follow 48 grounds of objections raising the questions here presented. No objection was made to this method of proof, if indeed it was subject to objection. The case presented no estoppel under section 2196 (1381), as here assumed by appellee. The circuit court had jurisdiction to "hear all objections of the property owner *** to said assessment and the amount thereof." Section 2209 (1394); Garner v. City of Anniston, 178 Ala. 430, 59 So. 654; City of Huntsville v. Pulley, 187 Ala. 367, 65 So. 405; Wilson v. City of Russellville, 209 Ala. 617, 96 So. 870.

The transcript discloses the passage and publication in due form of the original improvement ordinance (section 2176 [1361]) a sitting to hear objections on the day named, and the passage of the final resolution (section 2179), the passage of an ordinance fixing the grades of sidewalks on the same day and before the passage of such resolution (section 2181), the construction of the work under contract, the making of an assessment roll (sections 2190 [1375], 2191 [1376]), notice of hearing of objections or defenses by property owners to proposed assessments, a hearing thereon (sections 2192, 2193, 2197), and a resolution, reciting the various proceedings, and making the assessments final (section 2199 [[1384]). The record of proceedings shows the official action taken by the governing body, and need not affirmatively recite that plans and specifications were made and open to inspection in the office of the city engineer. The passage of the final resolution implies a finding that this executive duty was performed as directed in the original ordinance.

The establishment of grades is not required before passage of the "initial" ordinance, as assumed by appellant in several assignments of error, but before the final resolution ordering the improvement, so that property owners may be heard thereon at that time. The transcript was sufficient to show a valid assessment, and became prima facie evidence of the "correctness" and "amount" of the assessment. Section 2208 (1393).

Appellant assails the assessment as wholly void upon many grounds arising from the manner of constructing the improvements. Typical of these is that the sidewalk abutting appellant's property was not laid on the established grade. It appears from certain testimony that the curb line was changed and located further into the street, thus widening the space between the property line and the curb. Owing to the slope of the ground, this led to raising the fill on which the sidewalk was laid to provide surface drainage from the sidewalk toward the curb. No formal action of the board authorized this change, but it was made by the engineer with approval of the mayor, and approved by the council in accepting the work and ordering the assessment over appellant's objection. The effect of this upon the right of the council to make any assessment against the abutting property has not been before this court so far as we find.

The legislative power to authorize municipalities to assess the cost of improvements against the property benefited thereby is a taxing power, and subject to only two limitations, viz.; It shall not be in excess of the cost, nor "of the increased value of such property by reason of the special benefits derived from the improvements" (Const.1901, § 223), and "due process of law" shall be provided the owner in the protection of such right. The powers conferred upon municipalities in the premises are legislative, executive, and judicial. Vesting these powers in the same body of magistracy contributes to the difficulty which this court has often encountered in construing these statutes.

Broadly speaking, the governmental act of deciding upon what improvements will be made, how made and paid for, and enacting ordinances and resolutions to that end, is the exercise of legislative power. The council is given a discretion within defined limits. Letting contracts and supervising construction pursuant to the legislative orders is executive or administrative in character. The proceedings to assess property with the cost are judicial. Speaking broadly again, it may be said the initiative legislative action is prerequisite to, and forms the basis of, later judicial action. City of Birmingham v. Wills, 178 Ala. 198, 59 So. 173, Ann.Cas.1915B, 746. Taken as a whole, our statutes contemplate that, when so determined by the governing body, such improvements shall be a charge on the property benefited thereby. This is a matter of public as well as private concern.

The law does not contemplate that one property owner...