Pierce v. City of Huntsville

• Decision Date: 27 November 1913
• Citation: 64 So. 301,185 Ala. 490
• Parties: PIERCE v. CITY OF HUNTSVILLE.
• Court: Alabama Supreme Court

64 So. 301

185 Ala. 490

PIERCE v. CITY OF HUNTSVILLE.

Supreme Court of Alabama

November 27, 1913

Rehearing Denied Feb. 5, 1914

Appeal from Law and Equity Court, Madison County; James H Ballentine, Judge.

Certiorari by Nannie H. Pierce against the City of Huntsville. Judgment for respondent, and petitioner appeals. Affirmed.

Spragins & Speake, of Huntsville, for appellant.

David A. Grayson, of Huntsville, for appellee.

SAYRE J.

By the common-law writ of certiorari appellant sought to have the Madison law and equity court review and quash a proceeding assessing the cost of an attingent street improvement against her property. On the hearing the writ was quashed, after which this appeal was taken.

The theory of the writ of certiorari in such cases is that the proceeding for the assessment appears upon the face of its record to be without the power and jurisdiction of the municipal authorities acting in the premises, and so null and of no effect.

After a certified copy of the record of the proceeding of the city council and the city commissioners--a government by commission having been established pending the proceeding under authority of the act of April 21, 1911 (Acts 1911, p 591 et seq.)--had been exhibited to the court to sustain the assessment, defendant was allowed to show aliunde the record the contents of the notice which had been published in a newspaper advising property owners that the assessment book was ready for inspection, and that the commission would sit at a designated time and place to hear objections, in pursuance of sections 1377-1379 of the Code. Appellant's objection was that the notice should be shown by the record and not otherwise. Our judgment is that the notice was shown by the record, and that the error of admitting other evidence, if it was error, was harmless. The final resolution confirming the assessment and fixing it as a charge against appellant's property, as shown by the record of the proceedings had by the city council and the board of commissioners, recited the fact that the requisite advertisement had been made in compliance with the statute, to wit, in the Mercury Banner, a newspaper published in the city of Huntsville, and of general circulation therein, on the 15th day of April, 1912, setting out a copy of the same. The statute evidently contemplates a record of proceedings for local assessments, and a record of some sort could not well be dispensed with. It provides, for example, that on appeal to the circuit court the cause "may be tried on the record without other pleadings." Section 1394. It provides that the clerk of the city shall, when an appeal has been taken, send to the clerk of the circuit court "a transcript of all the proceedings of the council relating to such assessment." The record here shown contains a finding by the commission as to how, when, where, and of what publication had been made, all in agreement with the statutory requirements. The statute having specified no means whereby the fact of publication should be shown, the ascertainment by the commission and a record of the commission's finding afforded the only possible record evidence of a publication in compliance with the statute. No other evidence was necessary.

Shortly after the commission came into existence it proceeded to consider the assessment roll which had been prepared under the direction of the city council, and adopted a resolution fixing the assessment previously made for the improvement of Holmes street "from its intersection with Fifth street and Pratt avenue to Rison street." The record shows that in all previous proceedings the proposed assessment had been described as for the improvement of Holmes street "from its intersection with the west property line of Pulaski road or pike to its intersection with the east property line of Pratt avenue and Fifth street." The statute provides (section 1370 of the Code) that if the improvement be finally ordered and constructed, the council shall have power and authority, after completion and acceptance thereof, to assess the cost of constructing said improvement, or any part thereof, upon and against the property abutting on any street, etc. The resolution first adopted by the commission may, perhaps must, be construed as an effort to fasten the cost of the improvement upon abutting property in advance of a completion of the work as theretofore proposed. It therefore, lacked authority of law. It may be conceded that the commission's first effort to deal with the the assessment in question was defective and ineffectual. Afterwards, as the record shows, the board of commissioners--appreciating no doubt the error of its previous proceeding--caused notice of the assessment for the improvement of Holmes street, in accordance with the resolution to that end which had been adopted in the beginning, to be published, and thereafter proceeded in due course to fix the assessments as charges upon the property of abutting owners. Appellant denies the right of the commissioners to retrace their steps in this manner. Her contention just at this point seems to be that, where fundamental irregularity has intervened in the course of a proceeding, it is requisite to a valid assessment that the pending proceeding should be formally rescinded and a new and independent proceeding be set on foot. We do not appreciate the necessity for a formal rescission of so much of a record as appears on its face to be infected with fatal fundamental error, nor do we see the necessity or occasion in such case of carrying the process of rehabilitation back further than the specific error appearing. There is no reason why steps properly taken previous to the error should be retraced. The integrity of the proceeding, the completeness of the record, due process according to the provision of the statute, and all the rights of property owners, may be preserved in the manner of procedure adopted in this case. In Garner v. Anniston, 59 So. 654, speaking of the procedure on appeal to the circuit court, or other court of like jurisdiction, in cases arising under the statute for local assessments, we said: "If fundamental error be shown in the record, the proceeding, so far as it touches the interest or property of the party appealing, shall be abated or held...