Stovall v. City of Jasper, 6 Div. 50

• Court: Supreme Court of Alabama
• Citation: 218 Ala. 282,118 So. 467
• Docket Number: 6 Div. 50
• Parties: STOVALL v. CITY OF JASPER.
• Decision Date: 28 June 1928

118 So. 467

218 Ala. 282

STOVALL v. CITY OF JASPER.

6 Div. 50

Supreme Court of Alabama

June 28, 1928

Rehearing Denied Oct. 25, 1928

Appeal from Circuit Court, Walker County; R.L. Blanton, Judge.

Appeal to the Circuit Court by A.M. Stovall from assessments made against his property for street improvements by the City of Jasper. From a judgment for the City, defendant appeals. Corrected and affirmed.

D.A McGregor, of Jasper, for appellant.

Chas R. Wiggins and W.C. Davis, both of Jasper, for appellee.

THOMAS J.

The authority of a municipality as to paving assessments, etc is given expression in General Acts 1907, p. 790, §§ 1-201, as amended as to sections 23, 36, 38, 53, 63, 81, 120, 126, 78, and addition of 94 1/2, 107 1/2, 137 1/2, 139 1/2, 76 1/2, by Acts of 1909, p. 197, Code 1923, §§ 2174, 2178, 2179, 2188, 2209; Code of 1907, § 1365. We have indicated the sufficiency of such municipal proceedings as pleading, and under the statutes and authorities the same are made prima facie evidence of the correctness of the amount of the assessment so made and apportioned as against the property abutting on the highway, etc., to the extent of the increased value of such property by reason of the special benefits derived from such improvements by the owner. And the authority and mode of procedure by the municipality, in the premises, are discussed in City of Birmingham v. Wills, 178 Ala. 211, 59 So. 173, Ann.Cas.1915B, 746; Garner v. Anniston, 178 Ala. 430, 59 So. 654.

This is the second appeal. 215 Ala. 300, 110 So. 317. It involves the validity of certain separate assessments of street paving costs made on West Nineteenth street west of Town Creek bridge and east of the property line of Fifth avenue and east of town, assessed against lots 6 and 15 in block 192 in the city of Jasper, and owned by appellant, Stovall. The assessments against the two lots are "tried as one" by agreement of counsel.

In the former trial, the assessment against property under Street Improvement Ordinance No. 4 was also included or consolidated, but is now sought to be eliminated. In other respects and agreement of the parties, with the consent of the court, it is as on former appeal.

In accordance with the former ruling of this court (215 Ala. 300, 110 So. 317) appellant, on last trial, withdrew objections to the validity of Improvement Ordinance No. 1 as affecting lots 6 and 15.

There was no error in admitting, in evidence on appeal to the circuit court, the transcripts on appeal by appellee, as sufficient pleadings and prima facie evidence of the correctness and amount of assessments. Stovall v. City of Jasper, 215 Ala. 300, 110 So. 317. And constructions of Code, §§ 2207-2209, are Hood v. City of Bessemer, 213 Ala. 225, 104 So. 325; Cox v. Birmingham, 214 Ala. 584, 108 So. 625; Ex parte City of Florala, 216 Ala. 351, 113 So. 312.

The approved ordinance in question was not indefinite as to material to be used, and was not of "other approved material" as was the ordinance considered in Garner v. Anniston, 178 Ala. 430, 59 So. 654. The instant ordinance provided that said Nineteenth street "shall be paved with sheet asphalt, asphaltic concrete or bitulithic pavement, together with such sidewalls, walls or curbing, drainpipes, storm inlets, manholes or other work pertaining to the satisfactory construction of said pavement"; that is, it was definite, or became effective and definite by the coming in of the alternate bids and the selection and approval by the duly constituted authority of the city. Schwend v. City of Birmingham, 215 Ala. 491, 111 So. 205; Sanders v. City of Troy, 211 Ala. 331, 100 So. 483. The court correctly overruled the defendant's motion to abate the assessment as shown by the transcript on file.

The case was reversed on first appeal, for the reason that, over defendant's objection, the municipality was permitted to offer evidence of other building in the vicinity and opening of other streets after the improvement; held inadmissible on the question whether paving assessment was in excess of the increased value by reason of the special benefits derived from such improvement of the property as provided for in sections 23, 223 of the Constitution. Sections 2174, 2180, 2199, 2209, Code of 1923.

Appellant insists that the transcript filed shows that the city advertised and received bids under Ordinance 1, and so made improvements, and that the estimated cost of same on Nineteenth street was stated as being $18,000; the general bid on the frontage or yardage basis, or so much per, was for the whole work on this and other streets at $69,206.25. The motion to abate the assessment, for the alleged reason that it failed to designate what part of the cost would be applicable to Nineteenth street under Ordinance No. 1, was overruled by the court. The estimate was separate from other streets, whatever the character of material specified and employed; the bid for construction of the respective street improvements in said municipality was made on the unit price basis, and the elements of construction bid on (and adopted), for which the respective assessments were made, were definite as to appellant's said property, and were in compliance with the initial ordinance. A competent engineer, from the profiles and other data on file with the city, could reasonably estimate the specific cost of the improvements on said street as related to the original approximation of street improvements and costs thereof, for information of parties in interest, as provided by statute. Sections 2176-7; City of Hartselle v. Culver, 216 Ala. 668, 114 So. 58; Schwend v. City of Birmingham, 215 Ala. 491, 111 So. 205; Hood v. City of Bessemer, 213 Ala. 225, 104 So. 325; Stovall v. City of Jasper, supra. The final selection of the different kind or character of pavement may be postponed until the bids shall have been received. Acts 1909, p. 207, § 126; Code, § 2180.

The effect of section 2180 of the Code is to include certain necessary and incidental expenses of the nature and character indicated. The "incidentals" included in the assessment on the whole improvement on Nineteenth street, as stated in the itemized assessment and apportioned to the abutting lot of appellant, were $97. Appellant's motion was to strike the item on the ground that defendant was entitled to be informed of the expense of the improvement, and may know whether the assessment against his lot was correct.

It is insisted that the manner employed in the itemized assessment was improper and contrary to law. The motion was overruled; exception reserved. A statement by the court to counsel was to the effect that the substance and constituent elements of that item may be made the subject of inquiry on the trial as a material or pertinent fact. If the inclusion of the item of incidentals was to embrace illegal items or charges, does it follow that there was no proper assessment (section 2119, Code) under the improvement ordinance against appellant's properties?

Counsel being so informed by the court, that the several elements or services for which compensation was made as an incident of the improvement may be inquired into on the trial, proved by witness R.L. Totten that the several items of expense thus included were:

Incidentals, $1,366.31 at .0713243 $97 46

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Final Assessment Improvement Ordinance No. 1.

Incidental expenses:

Engineering, 5 per cent. of $24,586.56 $1,229 33

Attorney's fee, 1 per cent. of $24,586.56 245 87

Inspection cost, 6,012.1 square yards paving at 3 1/2 per cent. 210 42

Printing ordinances 28 00

Estimate cost of printing assessment ordinance 40 00

Total incidental expenses $1,453 62

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Amount of final estimate, $24,586.56

Incidental rate, $0.0713243.

This was apportioned to the properties of the several owners, and of this the sum of $97.46 was included in the itemized assessment under ordinance to the lots of Dr. Stovall.

Thus we are brought to a construction of sections 2180, 2199 as to attorney's fees as a part of the cost of said improvement, that may be embraced in the assessment made against the property as a lien on the respective lots or parcels of land under the statute. The case of Town of Capitol Heights v. Steiner, 211 Ala. 640, 101 So. 451, 38 A.L.R. 1264, is not in point, as the question was not presented on the effort for a reassessment to meet shortage or shrinkage as payment of pavement bonds issued. The decision in Weakley et al. v. Henry, 204 Ala. 463, 86 So. 46, is not applicable. It was a mandamus to compel payment of the legitimate expense of administering by the government of the county the matter of the proceeds of bonds for the purpose of highway improvements, which embraced its contract for brokers and attorneys to procure the sale of these bonds. The question under like statute in Code of 1907, § 1365, now being considered, was held not presented in Henderson v. City of Enterprise, 202 Ala. 277, 281, 80 So. 115. In Langstaff v. Town of Durant, 122 Miss. 471, 84 So. 459, attorney's fees were rejected as an item of improvement and assessment against adjacent property of the owner. The Mississippi statute authorized that "the cost of the work be assessed against the owner," etc.

Looking to the statute of this state, codified as section 2180, Code of 1923 (section 1365, Code of 1907), the words employed are subject to the ejusdem generis rule. State v. W.U. Tel. Co., 196 Ala. 570, 72 So. 99. The statute is:

"The council may pay out of the general funds of the city or town, or any special fund that may be provided for the purpose, such portion of the cost of the proposed improvement as they see proper. The cost of any improvement contemplated by this article shall include the expense of

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