Steiner v. Town of Capitol Heights

• Decision Date: 15 October 1925
• Docket Number: 3 Div. 719
• Citation: 105 So. 682,213 Ala. 539
• Parties: STEINER v. TOWN OF CAPITOL HEIGHTS.
• Court: Alabama Supreme Court

105 So. 682

213 Ala. 539

STEINER v. TOWN OF CAPITOL HEIGHTS.

3 Div. 719

Supreme Court of Alabama

October 15, 1925

Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.

Action by L. Steiner against the Town of Capitol Heights. Judgment for defendant, and plaintiff appeals. Affirmed.

See also, 211 Ala. 640, 101 So. 451.

Sternfield & Lobman and James J. Mayfield, all of Montgomery, for appellant.

Steiner Crum & Weil, of Montgomery, for appellee.

MILLER J.

This is a suit by L. Steiner against the town of Capitol Heights, a municipality. The plaintiff is the owner of certain sidewalk paving improvement bonds issued by defendant, which have matured, and the assessment made and collected in full by defendant from the adjacent property improved was insufficient to pay in full the principal, evidenced by the bonds issued--part of which plaintiff owns. The defendant refused to pay the balance due on the bonds because there are no funds from the assessments against the property with which to pay it.

There are 9 counts in the complaint. Demurrers were sustained by the court to counts 1, 2, 3, 4, and 8, and overruled as to counts 5, 6, 7, and 9. The defendant pleaded general issue with leave to give in evidence as a defense any and every matter that might be specially pleaded.

The cause was tried by the court without a jury on an agreed statement of facts, judgment was rendered in favor of the defendant, and this appeal is prosecuted by plaintiff from that judgment. The rulings of the court adverse to plaintiff on demurrers to counts 1, 2, 3, 4, and 8 of the complaint and the judgment of the court in favor of the defendant on the proof are the errors assigned.

This cause with the same 9 counts in the complaint and with the same agreed statement of facts has been in this court before on appeal (211 Ala. 640, 101 So. 451. The averments in the complaint and the facts in the agreement of the parties are stated particularly in the former opinion, and will not be here repeated, except when necessary for discussion of the questions presented.

Counts 1, 2, 3, 4, and 8 aver there were insufficient funds collected by the defendant from the assessments against the property abutting on the sidewalks improved with which to pay in full the principal and interest debts evidenced by the bonds and interest coupons. Plaintiff in count 1 alleges this deficit is due to the carelessness and negligence of the officials of defendant in making the assessments against the abutting property improved, and failing thereby to provide a fund sufficient to pay the interest on the bonds and to redeem them at maturity. Count 2 avers this deficit was due to the fact that defendant, through its officials, negligently issued and sold bonds in excess of the amount that was assessed, and grossly in excess of the anticipated revenue from the special assessment. In count 3 plaintiff alleges this deficit was due to the negligence of the defendant, through its officials, in making an assessment against the abutting property insufficient in amount to pay the interest and principal of the bonds at maturity. In count 4 it is alleged the deficit was due to the fact that the defendant, through its officials, negligently issued bonds in excess of the amount that was assessed and grossly in excess of the anticipated revenue from the special assessment. Plaintiff in count 8 alleges the deficit was due to the fact the defendant has made and levied an assessment or betterment tax on the abutting property insufficient to pay the principal and interest of the bonds, and the defendant now declines and refuses to make an additional assessment and levy on such property to pay the balance due on the bonds. Each count shows the defendant is a town, a municipality, having a population of less than 6,000, and in issuing these bonds the defendant was acting under the authority of the statute (section 1411, Code 1907), the pertinent parts of which read as follows:

"Any city or town having a population of less than six thousand may, notwithstanding the amount or character of any bonded or other indebtedness, issue such bonds, but the same shall be a lien or charge only against the property improved and against the fund collected from the assessments levied against the property improved, and shall not be the general obligation of the city or town, nor shall such city or town be in any way liable to the holders of such bonds in case of failure to collect the same."

This statute was amended (Gen.Acts Sp.Sess. 1920, p. 155), but this addition to it has no bearing on this cause.

It will be observed that this statute expressly states such bonds shall not be the general obligation of the defendant, the city or town, nor shall such city or town be in any way liable to the holders of such bonds in case of failure to collect same. This language is broad and comprehensive, and evidences the intent and purpose of the Legislature that the town, the defendant, shall not be liable to the plaintiff the holder or owner of such bonds in any way, either by action ex contractu or ex delicto. Liability cannot be placed on the defendant, the town or city, for the nonpayment of the bonds or the interest thereon, either directly or indirectly by the holders or owners thereof. Then each bond, the contracts between the parties, apparently approves this construction of this statute. A copy of the bond is attached as...