Nashville, C. & St. L. Ry. Co. v. Town of Boaz

• Citation: 226 Ala. 441,147 So. 195
• Decision Date: 16 March 1933
• Docket Number: 8 Div. 439.
• Court: Supreme Court of Alabama
• Parties: NASHVILLE, C. & ST. L. RY. CO. v. TOWN OF BOAZ et al.

147 So. 195

226 Ala. 441

NASHVILLE, C. & ST. L. RY. CO. v. TOWN OF BOAZ et al.

8 Div. 439.

Supreme Court of Alabama

March 16, 1933

Rehearing Denied April 13, 1933.

Appeal from Circuit Court, Marshall County; A. E. Hawkins, Judge.

Petition of the Nashville, Chattanooga & St. Louis Railway Company for certiorari to review proceedings of the Town of Boaz, levying an assessment against petitioner's property for street improvements. From a judgment dismissing the petition petitioner appeals.

Reversed and remanded.

Street Bradford & Street, of Guntersville, for appellant.

H. G Bailey, for Boaz, for appellees.

BROWN Justice.

This appeal is from a judgment of the circuit court affirming the validity of the proceedings had by the mayor and aldermen of the town of Boaz, levying an assessment to the extent of the increased value of certain lots and parcels of land owned by the appellant in said town, for the cost of certain local improvements in the paving of Mill street in said town.

The jurisdiction of the court to examine the proceedings was invoked by the petition of the appellant for the issuance of the writ of certiorari as at common law, asserting that said proceedings are void.

The proceedings of the town council are in rem, and the scope of the inquiry goes only to their external validity-the jurisdiction of the municipal board of the subject-matter and of the res. If it appears from the face of the return-the transcript of the proceedings as certified by the town clerk-that the board had jurisdiction of the subject-matter and of the res, the judgment affirming their validity was correct and will be affirmed. Mere irregularities not affecting the board's jurisdiction, correctable by objections made as provided by the statutes and appeal from adverse ruling by the board (Code 1923, §§ 2196, 2204 [as amended by Gen. Acts 1927, pp. 765, 767]), will not be noticed on this attack. Pierce v. City of Huntsville, 185 Ala. 490, 64 So. 301; Nashville, C. & St. L. Ry. v. Town of Boaz, 213 Ala. 667, 106 So. 192; Ex parte Slaughter, State Fire Marshal, 217 Ala. 515, 116 So. 684.

On the trial in the circuit court the petitioner made a motion to strike from the return the following matters:

"A. The certificate of J. B. Barrett, Clerk, appended to grade ordinance No. 2.

"B. The memorandum placed in pen on 'grade ordinance No. 2' as the same is attached to minutes of the Council of March 21, 1929.

"C. The certificate of J. B. Barrett, Clerk, relating to Improvement Ordinance No. 3, appended at the foot of the minutes of the meeting of the Town Council of March 21, 1929. * * *

"D. The certificate of J. B. Barrett, appended at the foot of Improvement Ordinance 3, relating to the mailing of copies, etc. * * *

"E. The memorandum written on the margin of the alleged 'Notice to Property Owners' as follows: 'Notice from Boaz Leader published Oct. 10th, 1929.' * * *

"F. The 'Notice to Property Owners' appended at the foot of the minutes of the meeting of the Council of October 31, 1929, etc. * * *

"G. The paper headed, 'Profile #68, N. C. & St. L. Railroad Co."' (Italics supplied.)

"H. Sheets marked 13, 14 and 15, each separately, purporting to be notice of something made final on Oct. 31, 1929."

The remedy by common-law certiorari only extends to courts or boards required by law to keep a record or quasi record of their proceedings, and the only proper return to the writ is such record or a transcript thereof duly authenticated by the legal custodian, as it exists at the time of the issuance of the writ. Commissioners' Court of Lowndes County v. Hearne, 59 Ala. 371; Town of Camden v. Bloch, 65 Ala. 236; City of Decatur v. Brock, 170 Ala. 149, 54 So. 209; 11 C.J. 175, §§ 265-270.

The custodian of the record has no authority to incorporate in the return, matters not appearing on the face of the record, and the court or board whose record is brought under review has no authority to amend or supplement the record after the issuance and service of the writ, without permission of the court issuing the writ. Commissioners' Court of Lowndes County v. Hearne, supra; Town of Camden v. Bloch, supra; Cook et al. v. Court Commissioners of Walker County, 178 Ala. 394, 59 So. 483; 11 C.J. p. 180, §§ 278-280.

In some jurisdictions a motion to strike is recognized as the proper method of ridding the return of improper or immaterial matters, but the practice approved by our decisions is for the court to disregard such matters. Cook et al. v. Court Commissioners of Walker County, supra; Commissioners' Court of Lowndes County v. Hearne, supra.

The elements of notice prescribed by sections 2177 and 2178 of the Code (as amended by Gen. Acts 1927, pp. 758, 759), are not jurisdictional, but merely preliminary and administrative, related to the policy of entering upon such enterprise, a matter in respect to which the statute invests the municipal board with final, irrevocable discretion.

While compliance with the prescription of the statute in respect to notice of these preliminary steps is essential to the regularity and intrinsic validity of the proceedings on direct attack by objection made by the property owner to the municipal board at the final meeting set for hearing each individual property owner, they are matters that may be waived and are waived in the absence of such objection. City of Birmingham v. Wills, 178 Ala. 198, 59 So. 173, Ann. Cas. 1915B, 746; City of Mobile v. Smith, 223 Ala. 480, 136 So. 851.

Since the decision in Wills' Case, the Legislature has amended section 2178 of the Code, and as amended it provides that: "The failure of any official charged with the duty of sending such notice, or the failure of any owner of property to receive such notice, if sent by Registered mail as hereinabove provided, shall not invalidate or in any wise affect any assessment made under the provisions of this Code." Gen. Acts 1927, p. 759, § 7.

Section 1993, cited by appellant, is not applicable to local improvement ordinances authorized by section 2174 et seq. of the Code (as amended by Gen. Acts 1927, p. 754 et seq.). Pierce v. City of Huntsville, 185 Ala. 490, 64 So. 301.

Therefore, the matters indicated in the motion to strike by letters A, B, C, D, E, F, G, and H, are not essential to the jurisdiction of the municipal board and the external validity of the proceedings, and will be disregarded as immaterial on the attack by the common-law writ of certiorari.

Jurisdiction of the subject-matter-providing for and making the local improvement-is conferred on the municipal board by the statute. Code 1923, section 2174; City of...