Strenna v. City Council of Montgomery

• Decision Date: 04 December 1888
• Citation: Strenna v. City Council of Montgomery, 5 So. 115, 86 Ala. 340 (Ala. 1888)
• Parties: STRENNA v. CITY COUNCIL OF MONTGOMERY.
• Court: Alabama Supreme Court

5 So. 115

86 Ala. 340

STRENNA v. CITY COUNCIL OF MONTGOMERY.

Supreme Court of Alabama

December 4, 1888

Appeal from chancery court, Montgomery county; THOMAS W. COLEMANChancellor.

Bill by Matthew Strenna against the city council of Montgomery to restrain the sale of his land under a decree of the recorder for an unpaid assessment levied to pay for sidewalk repairs make adjacent to his premises.From a decree dismissing the billcomplainant appeals.

Watts & Son, for appellant.

Jones & Falkner, for appellee.

STONE C.J.

Following a very strong array of authorities, it has long been settled in this state that equity will not interfere by injunction with the collection of taxes, unless, in addition to illegality, hardship, or irregularity, the case is brought within some one or more of the recognized heads of equity jurisdiction; and in no case will it interfere for mere errors or excess of valuation, hardship, or injustice of the law, or which can be redressed in a law forum.Insurance Co.v.Lott, 54 Ala. 499.Illegality of the tax, of itself, furnishes no ground for equitable interference.Land Co.v.Ayres62 Ala. 413;Stonev.Mayor, 57 Ala. 61; Cooley, Tax'n, (2d Ed.) 760;2 Dill. Mun. Corp. § 906 et seq.;Mayorv.Meserole, 26 Wend. 132;Mooersv.Smedley, 6 Johns. Ch. 28;Heywoodv.City of Buffalo, 14 N.Y. 534;Bankv.Supervisor, 25 N.Y. 312;Douglassv.Town of Harrisville, 9 W.Va. 162;RailroadCo.v.Siders, 88 Ill. 320;Sayrev.Tompkins, 23 Mo. 443;Barrowv.Davis, 46 Mo. 394;McCormackv.Patchin, 53 Mo. 33, 14 Amer. Rep. 440, and note;McDonaldv.Murphree, 45 Miss. 705;Crossv.Mayor, 18 N. J. Eq. 305;1 Pom. Eq. Jur. § 265.In 1 High,.Inj. (2d Ed.) § 587, it is said: "The jurisdiction of equity in restraint of the action of municipal corporations in regulating streets and highways is exercised with much caution, and is not regarded as a favorite jurisdiction with the courts.In the absence of allegations of irreparable injury, equity will hesitate to interfere where the effect of an injunction would be to review the action of such inferior political tribunals, and thus practically constitute a court of equity a court of errors to sit in review of the proceedings of other tribunals.And with the control of matters resting largely in the discretion of municipal authorities equity will not ordinarily interfere."The proceedings necessary to be taken in cases like the present are all prescribed either by the statutes or by ordinance.The ordinances are not charged to have been in excess of the authority conferred on the mayor and aldermen if the act be constitutional.The sum of the legislation, then, was and is that after the enactment of the several ordinances it was declared that, within certain defined limits within the city of Montgomery, (appellant's property is within those limits,) no repairs should be made in any sidewalk pavement, except with stone, artificial stone, or concrete; that when such paved sidewalks became out of repair, it was made the duty of the owner of the property abutting such sidewalk to repair the same with materials aforesaid within 10 days after notice to do so; that, failing so to repair, the city itself would make the necessary repairs, and tax the same against the owner of the property, which tax was declared to be a lien on the property in front of which the repairs were made, for the cost of repairs so assessed as taxes.

In the bill before us it is not denied that all these proceedings were had, but certain alleged irregularities and unauthorized agencies are charged to have occurred and been employed in each and every step taken.It is admitted that said assessment had never been paid; and it is not averred that it is in excess of the proper and reasonable cost of the repairs.The assessment...