Stovall v. City of Jasper

• Decision Date: 28 October 1926
• Docket Number: 6 Div. 699
• Citation: 110 So. 317,215 Ala. 300
• Parties: STOVALL v. CITY OF JASPER.
• Court: Alabama Supreme Court

110 So. 317

215 Ala. 300

STOVALL v. CITY OF JASPER.

6 Div. 699

Supreme Court of Alabama

October 28, 1926

Rehearing Denied Nov. 26, 1926

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

Appeal by A.M. Stovall from assessments made against his property for street improvements by the City of Jasper. From judgments for the City, defendants appeals. Reversed and remanded.

D.A McGregor, of Jasper, for appellant.

Chas R. Wiggins, W.C. Davis, and Curtis, Pennington & Pou, all of Jasper, for appellee.

W.J Wynn and James H. Willis, both of Birmingham, and Leo Leva, of Selma, amici curiae.

SAYRE J.

This appeal involves the validity of three certain separate assessments of street paving costs against properties owned by appellant. By agreement of the parties and with the consent of the court, the cases were tried as one.

Appellant objected in the trial court, and renews his objection here, that the initial resolutions authorizing the paving of the streets--one of the lots was a corner lot--were nullities for the reason that they failed to state "the general character of the materials to be used," according to the prescription of the statute of force at the time; viz., section 1361 of the Code of 1907. That section appears in the Code of 1923 as section 2176.

The resolution for the paving of Nineteenth street provided that the street should "be paved with sheet asphalt, asphaltic concrete, or bitulithic pavement." The materials thus enumerated are of the same general character, within the meaning of the statute, all being based upon the cohesive and insoluble qualities of bitumen or asphalt, which is a bituminous substance.

Appellant relies upon Garner v. Anniston, 178 Ala. 430, 59 So. 654, decided in 1912. In that case, the resolution under scrutiny undertook to comply with the statute by providing that "the street should be paved with bitulithic pavement, vitrified brick, or other approved material." It is clear, we think, that the last clause of the quoted provision, apart from anything else, was enough to render the resolution, upon which the ordinance depended, so indefinite and uncertain as to deprive it of all reasonable support in the statute.

So far as concerns the validity of the initial resolution by the city council, we have said enough to dispose of the case arising out of the paving of Nineteenth street. The initial resolution in the case of Fifth avenue was different. It provided that the avenue should be paved with "asphaltic concrete *** sheet asphalt *** bithulithic paving *** vitrified brick *** or Portland cement paving." This resolution was probably framed under what seems to have been a misconception of language used in Garner v. Anniston, supra, where we said:

"No doubt the legislative purpose was to permit municipalities to have the benefit at once of such processes [meaning patented processes] and materials [[meaning proprietary materials] and of competition, which an exact specification of some processes or some materials of particular origin or ownership would exclude. At the same time it was intended to give property owners an opportunity to intelligently advise and object. These purposes, which to some extent run counter to each other, are served, as well, perhaps, as such conflicting purposes could be, by the requirement of a description of the general character of the materials to be used, as (to state what we consider apt and adequate illustrations of the statutory purpose) that the proposed improvement is to be constructed of stone, or brick, or asphalt, or wood, or a combination of bituminous products and crushed stone, which makes what is commonly known as bitulithic pavement."

By this language it was not intended--at least the writer did not intend--to indicate that an enumeration of all possible paving materials, or an enumeration including materials of wholly different general character would adequately give effect to the purpose of the statute. The idea, rather, was that any one of the several alternative materials mentioned by way of illustration would comply with the statute without a statement of every modification, change, or difference that might, in the end, be preferred. However, this question was presented to the court in Sanders v. Troy, ...