Mobile Housing Bd. v. Cross

• Decision Date: 11 December 1969
• Docket Number: 1 Div. 585
• Citation: 285 Ala. 94,229 So.2d 485
• Parties: MOBILE HOUSING BOARD v. George N. CROSS et al.
• Court: Alabama Supreme Court

Page 485

229 So.2d 485

285 Ala. 94

MOBILE HOUSING BOARD v. George N. CROSS et al.

1 Div. 585.

Supreme Court of Alabama.

Dec. 11, 1969.

Collins, Galloway & Murphy, and James H. Lackey, Mobile, for appellant.

Tyson, Marr & Friedlander and Charles S. Street, Mobile, for appellees.

MADDOX, Justice.

There is but one question presented by this appeal. Did the Mobile trial court err in fixing an attorney's fee and assessing it as part of the costs against the appellant Mobile Housing Board in this eminent domain proceeding?

This proceeding began when the Mobile Housing Board, acting pursuant to applicable law, filed a condemnation petition in the Probate Court of Mobile County. The Probate Court granted the petition, commissioners were appointed, a hearing was held and the commissioners made their awards. The Housing Board perfected its appeal to the Circuit Court of Mobile County, where a jury assessed damages for the taking.

The property owners petitioned the trial court to fix an attorney's fee in the case and assess it as part of the costs against the Housing Board, citing as authority the provisions of Act No. 715, Acts of Alabama, 1967, Regular Session, p. 1552. The trial court granted the property owners' request and fixed an attorney's fee and assessed it as part of the costs. The Housing Board asked the court to set aside that portion of the judgment awarding the attorney's fee, and upon the court's denial, took this appeal.

Act No. 715 provides:

'Section 1. In all counties of this state having a population of not less than 300,000 nor more than 500,000, according to the last or any subsequent federal decennial census, any regional, district, county, or municipal housing authority or redevelopment agency which shall have instituted condemnation proceedings in accordance with Code of Alabama 1940, Title 19, in connection with any urban renewal or other redevelopment plan or project undertaken pursuant to Act No. 553, H. 145, Regular Session 1955 (Acts 1955, p. 1210), shall pay all reasonable costs of the proceedings in the appellate court upon appeal from an order of condemnation or as provided by Code of Alabama 1940, Title 19, Section 20, including reasonable attorney's fees to be assessed by that court; provided however, that said authority or agency shall not be required to pay costs or attorney's fees on appeal by owners or other parties interested in each of the several tracts of land wherein such orders of condemnation shall be affirmed.'

Appellant contends that this act is void for vagueness and uncertainty, in that the legislative intent cannot be ascertained. Appellant also says that even if the statute is not void, it has no application in the case here. Appellant's main argument, however, is that the statute is unconstitutional under Article 1, Section 1; Article 1, Section 10; Article 1, Section 13; and Article 1, Section 35 of the Constitution of the State of Alabama, 1901, and under the fourteenth amendment to the Constitution of the United States.

The Mobile Housing Board was formed under the provisions of the Municipal Housing Authorities Law of the State of Alabama (Chapter 2 of Title 25, Sections 5--30, both inclusive, Code of Alabama, 1940, as amended). Unquestionably, the Housing Board has the authority to acquire by eminent domain any real or personal property which it may deem necessary to carry out the purposes of the Municipal Housing Authorities Law, as amended. The record shows that the condemnation here was for the purpose of carrying out an urban renewal project in Mobile, as authorized by Act No. 553, Acts of Alabama, Regular Session, 1955; Title 25, Sections 105--112, Code of Alabama, 1940, Recompiled, 1958.

We cannot agree with the Housing Board that Act No. 715 which allows the fixing of an attorney's fee and assessing it as part of the costs is void because of vagueness.

Every presumption is in favor of the constitutionality of an act of the legislature and this court will not declare it invalid unless, in its judgment, the act clearly and unmistakably comes within the inhibition of the constitution. Rogers v. City of Mobile, 277 Ala. 261, 169 So.2d 282 (1964).

The Housing Board contends that the words, 'shall have instituted condemnation proceedings,' which appear in the act limit its operation to proceedings which were started prior to the passage of the act. We think this would be a strained construction of the words and is not what the legislature intended. We have held on many occasions that statutes are to be considered prospective, unless the language is such as to show that they were intended to be retrospective. McGregor v. McGregor, 249 Ala. 75, 29 So.2d 561 (1947), and cases there cited.

Furthermore, it seems clear that the legislature intended, if constitutionally permissible, to require authorities such as the Mobile...