Smith v. Hall

• Decision Date: 30 June 1948
• Docket Number: 1 Div. 333.
• Citation: 36 So.2d 357,251 Ala. 44
• Parties: SMITH, Town Clerk, v. HALL.
• Court: Alabama Supreme Court

36 So.2d 357

251 Ala. 44

SMITH, Town Clerk, v. HALL.

1 Div. 333.

Supreme Court of Alabama

June 30, 1948

J B. Blackburn, of Bay Minette, for petitioner.

W. C. Beebe, of Bay Minette, opposed.

FOSTER Justice.

The question on this petition is controlled by the following facts: A city has made a street improvement and an assessment against property for its cost in whole or in part, and such assessment has been made final as provided by section 538, Title 37, Code, which amount was not paid in thirty days by the property owner, who did not elect to pay in installments as provided in section 557, Title 37, Code, and on the amount of which assessment the city fixed the interest rate at six percent per annum, the maximum rate authorized by section 557, supra; and has not issued bonds or assigned the claim for said amount. Later, long after the expiration of thirty days, the city council passed a resolution reducing the rate of interest from six percent to three percent per annum for the first year, and two percent for each year thereafter. The property owner is seeking to require the city clerk and treasurer to accept payment at the reduced rate of interest. She has refused to accept such payment on the ground that the city council had no right to make the reduction.

The Court of Appeals held that the contention of the city clerk and treasurer cannot be supported under section 100 of the Constitution, nor any other provision of law. This was based on the fact that section 100 only applies to obligations or liabilities of some person, association or corporation to the city; and that for the tax here involved and the interest on it, there is no obligation or liability of any person association or corporation, but that the claim is against property only. In this application of section 100, supra, we concur.

But it is insisted that since section 538, Title 37, Code, prohibits the city council from reducing or abating an assessment after it shall have been made final, it would violate that statute to permit the city council to reduce the rate of interest on the amount of the assessment after it has once been fixed.

We cannot agree with that construction of section 538, supra. The amount of the assessment which cannot be reduced is that fixed by making it final. That amount does not include interest, but it is contemplated that the amount of it shall be paid in thirty days thereafter. There can be no interest if it is paid in thirty days. It is not therefore a feature of the assessment, the amount of which cannot be reduced after it is made final. This is made manifest by section 557, section 37, Code, providing that all assessments or installments thereof (If there is an election to pay in...