Jefferson County v. City of Birmingham, 6 Div. 134

Citation235 Ala. 199,178 So. 226
Decision Date13 January 1938
Docket Number6 Div. 134
PartiesJEFFERSON COUNTY v. CITY OF BIRMINGHAM.
CourtSupreme Court of Alabama

Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.

Action of assumpsit by the City of Birmingham against Jefferson County. From a judgment for plaintiff, defendant appeals.

Modified and affirmed.

Ernest Matthews, of Birmingham, for appellant.

J.H Willis, Clarence Mullins, and Harvey T. Deramus, all of Birmingham, for appellee.

FOSTER Justice.

This is a suit at law seeking a personal judgment by the city of Birmingham against Jefferson county for the sums unpaid on certain municipal improvements, on account of the ownership by the county of adjoining property specially benefited by the improvements, as follows: Balance of $8,133.50 on account of the county alms house; $326 on account of the Hillman Hospital; $78.82 on account of a sewer right of way. Interest was added making a total of $11,276.15, for which a judgment was rendered, and the county has appealed.

The only questions argued by appellant relate to the power of the city to maintain this personal action, for street improvement assessments adjacent to the alms house and hospital.

It was agreed that the ordinances in proper form were passed by the city commission, and the assessments were correct in amount but the right of the city to make the assessments was denied as also the right of the city to a personal judgment.

This right is based on section 18 of the Act of August 20, 1915, pages 294; 299, entitled "An Act To further provide for the organization, government and regulation of cities which now have or which may hereafter have a population of as much as one hundred thousand people according to the last Federal census, or any such census which may hereafter be taken, and to further provide for and define the rights, powers, duties, procedure, jurisdiction and authority of such cities and of the officers, courts, and bodies thereof, and of the State and county officers, courts, bodies, boards and funds in relation to such cities and the officers and affairs thereof, and to prescribe penalties for the violation of this act," and section 18 of it is as follows: "Such cities shall have the power to assess any municipal or county property for the costs of street improvements and sewers, and the costs of such improvements may be bonded as in the case of private property, where such assessments are made against county property, the city shall not have power to sell such county property to satisfy the assessments, but the claim therefor shall be a preferred claim against the general revenues of the county and may be collected by an action at law in the nature of an action of debt without the necessity of filing any itemized or verified claim."

It will be noted this act has application to Birmingham. It changes the general rules relating to improvement assessments as so applicable in so far as county property is concerned, in that the claim for the amount of the assessment is given a preference in payment against the general revenues of the county for which an action at law in debt is also there provided, without the power to sell county property to satisfy it.

The general law otherwise pertaining to such improvement assessments is that they do not justify a personal judgment, but only serve to fix a lien on the property which is the only method of collecting the amount of the assessment. City of Huntsville v. Madison County, 166 Ala. 389, 52 So. 326, 139 Am.St.Rep. 45; City of Decatur v. Southern Ry. Co., 187 Ala. 364, 65 So. 536; Cardwell v. City of Dothan, 221 Ala. 412, 128 So. 794.

So that in this respect section 18, supra, is an innovation in the Alabama law applicable to such matters.

It is contended (1) that section 18 is void, because it is not germane to the subject expressed in the title, in violation of section 45, Constitution; and (2) because, if not so, it was repealed by the Act of September 10, 1927, p. 753; and (3) because, if not so, it is a tax on property of the county in violation of section 91, Constitution. (4) It is also claimed that interest should not be included because it is not chargeable against a county.

We will consider the contentions in the order as thus stated.

Does the inclusion in the Act of 1915 of section 18 violate section 45, Constitution? We have given the title of the act in full. It expresses the subject, which, in brief, is to provide further for the organization, government, and regulation (of certain cities including Birmingham by reference to population), and to provide further for and define the rights, powers, duties, procedure, jurisdiction, and authority of their officers and affairs. It is therefore an act to amend the charter powers of such cities, without undertaking in the title to refer to the particular powers to be affected.

We have had many cases in which our section 45, or its predecessor in like form, was controlling. We have said that generality or comprehensiveness of the subject is not a violation. Harris v. State, 228 Ala. 100, 151 So. 858. This rule as there shown has been applied to many forms of acts. Especially is it so in creating or amending municipal charter powers. As far back as the case of Lockhart v. City of Troy, 48 Ala. 579, it was before this court. In that case (on page 583) the court stated the rule as follows: "It is very evident that an act to incorporate a town or city, or an act to establish a charter for a town or city, necessarily may, and must, contain a grant of all the powers intended to be conferred on the corporation. This will embrace all the subjects incident to such a corporation. The subject of such a law is 'the charter of incorporation.' And the act may embrace whatever is necessary for this end. The title need not be an index to the act; nor need it state a catalogue of all the powers intended to be bestowed. This is included in the thing created; that is, 'the charter of incorporation.' "

We also declared in Harris v. State, supra, in substance, that there was no difference in this respect between a title to amend the charter and one to establish a charter.

An act to establish a charter for a city already incorporated is but an amendment of its existing charter. So that an act to establish a charter, or to amend a charter or to make further provision for the powers, duties, procedure, and jurisdiction of a city and its officers, all have but one subject, and include any power or duty ordinarily incident to municipal authority.

This particular act extends into a variety of subjects. Sections 18, 19, 20, 21, 22, and 23, pages 299-302, relate to improvement assessments. They do not undertake to cover that whole subject. So that other laws not in conflict with its provisions remain as enacted. Certainly the matters so enacted relate to the powers and jurisdiction of city authorities and are within the general title of the act.

The next point argued is that the Act of 1915, supra, is repealed by the Act of 1927, supra. The latter act rewrites the Code sections applicable to improvement assessments. It is made to apply to all municipalities and to repeal all laws in conflict with it. And so the Code sections before they were thereby amended applied in like terms to all municipalities, except as they declared otherwise, in respect to bonds by cities of less than 6,000. The 1927 Act, supra, did no more than rewrite and re-enact the Code sections. The Act of 1915, supra, did not relate to nor expressly amend or rewrite Code sections, but made certain enactments as to cities of a certain class. It thereby, of course, made the law different from the Code as to those features so enacted. The Code sections to that extent did not apply to such cities. The re-enactment and rewriting of the Code sections without expressly referring to the matters so enacted as to those cities does not certainly as to them, we think, show a disposition to repeal that act. To that extent it was dealing with a subject which, we have held, was not included in the general terms of the Code sections, to wit, counties. So that the re-enactment of the Code sections should not be construed to apply to counties not there specially mentioned since they are specially mentioned in the Act of 1915.

We are clear that section 18 was not repealed by the Act of 1927, supra.

Appellant next argues that section 18, supra, violates section 91, Constitution. It is there ordained that the Legislature shall not tax the property of counties. This means a direct ad valorem tax. City of Birmingham v. State, 233 Ala. 138, 170 So. 64; Jefferson County v. State, 233 Ala. 148, 170 So. 70. It does not exempt such property from local assessment for public improvements. City of Huntsville v. Madison County, supra; Jones v. Lacey, 220 Ala. 390, 125 So. 635; 44 Corpus Juris 540, note 47.

So that the Act of 1915 does not violate section 91, and it does not undertake to sell public property. It can, as it does, confine the remedy to a personal monetary claim against the county.

It is next insisted that interest should not be charged to the county on account of the delay in paying the amount of the assessment. The general rule is that counties are not liable for interest unless made so by statute or contract, except on its bonds and coupons after maturity. 7 R.C.L. 962; Duval County v. Charleston E. & C. Co., 101 Fla. 341, 134 So. 509, 518. At least until after demand and refusal of payment. 15 Corpus Juris 606, 607, note 57.

Section 8564, Code, provides that all contracts, express or implied, to pay money or other thing or to perform an act or duty bears interest from the time when its performance was due.

Section 8565, Code,...

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