140 Ala. 638 | Ala. | 1903
An act of Assembly approved February 18,1895; (Acts, 1894-95, p. 906), has this title: “An Act to authorize the City Council of Montgomery to issue bonds for the purpose of paving or otherwise improving the streets and sidewalks, or either, of the city of Montgomery.” Section 2 of the act provides, among other things “that whenever the City Council of Montgomery shall deem it wise to pave or otherwise im
The other question in this case arises on the provisions of section 4 of the act above quoted, for the assessment of the whole cost of the paving against abutting property, “prorated according to the frontage of such property,” and whether, in view of State and Federal constitutional provisions as to compensation for property taken for public uses and depriving the citizen of property without due process of law, it is within legislative competency to thus impose the costs of street paving and the like upon abutting property without judicial ascertainment of the benefits accruing to such property from such improvements, and apportionment of the costs of the betterments according to and not in excess of the actual' benefits enuring from them to the several abutting lots of land. This question has been thrashed over in numerous decisions of the courts, and, while the cases are not uniform upon it, the better view and that supported by the great weight of authority is that it is a matter of legislative expediency and for legislative determination whether abutting urban property will be benefitted to the extent of the costs of a given improvement of the street or sidewalks along its front, and therefore entirely within legislative competency to impose such costs, by way of special tax, upon the property abutting the improved street, apportioning the charge thereto according to the distance the several parcels of land front upon the street. The authorities supporting this view are numerous and include, we believe, all text writers on the subject: “The major part of the cost of a lo.cal work,” says Judge Cooley, “is sometimes collected by general tax, while a smaller portion is levied upon the estates specially benefitted.
“The major part is sometimes assessed on estates benefitted, while the general public is taxed a smaller portion in consideration of smaller participation in the benefits.
“The whole cost in other cases is levied on lands in the immediate vicinity of the work.
“The courts are very generally agreed,” says Judge Dillon, “that the authority to require the property specially benefitted to bear the expense of local improvements is a branch of the taxing power, or included within it. * * * Whether the expense of making such improvements shall be paid out of the general treasury, or be assessed upon the abutting property or other property specially benefitted, and, if in the latter mode, whether the assessment shall be upon all property found to be benefitted, or alone upon the abutters, according to frontage or according to the area of their lots, is .according to the present weight of authority considered to be a question of legislative expediency.” 2 Dillon’s Municipal Corporations, § 752.
These formulations of the doctrine were approved by the United States Supreme Court in French v. Barber Asphalt Paving Co., 181 U. S. 324, 343, and they are supported by that case and many others, some of which are cited on the brief for appellant.
Judge Cooley states the same doctrine in his work on Constitutional Limitations, (p. 507) : “It has been held equally competent for the Legislature to make the street the taxing district and assess the expense of improvements upon the lots in proportion to frontage. Here also is apportionment by a rule which approximates to what is just, but which, like any other rule that can be applied, is only an approximation to absolute equity. But if in the opinion of the Legislature it is a proper rule to apply in a given case, the court must enforce it.”
And again.: Ҥ 1175. Where land is to be taken for a public use, the Legislature is the exclusive judge of the amount of land and of the estate therein which the public end to be subserved requires to be taken. It is, therefore, competent for the Legislature to authorize a municipal corporation to condemn the title in fee-simple of
Jndson on Taxation has a luminous treatise on this subject, in line with the texts we have quoted, and fully sustaining not only legislative competency to assess the cost of street and other like improvements against abutting property, apportioning it by frontage, but the practical expediency and general fairness, and the conclusiveness of such assessments. — Section 355, et seq. We quote one or two passages: “While a few States still insist that the apportionment must be made according to a determination of special benefits in each case, [that is, in respect of each parcel of property, we suppose] the trend of authority has been overwhelmingly in support of the rule that a legislative apportionment by frontage or area is allowed. Thus it was said by Judge Cooley in the Supreme Court of Michigan in 1881: 'We might fill pages with the names of cases decided in other States which have sustained assessments for improving streets though the apportionment of cost was made on this same basis (according to frontage) as the one before us. If anything can be regarded as settled in municipal law in this country, the power of the Legislature to
This author further says: “The apportionment of the cost of a public improvement by a definite rule, as by frontage or area in the taxing district, has been held necessarily to exclude evidence of the want of special benefits in the enforcement of assessments upon the property, as the legislative, determination in ordering the assessment upon that basis, presumptively involves the finding that the property is benefitted to the extent of the assessment. This conclusiveness of the legislative decision in the formation of taxing districts is said, therefore, to rest upon the presumption that the Legislature proceeds upon investigation and inquiry, and decides what the public good requires; that it only creates a taxing district and charges the expense of a public improvements upon it when satisfied that the property therein will be specially benefitted by the improvement. The courts in sustaining this doctrine of legislative conclusiveness, recognize that its real basis is the impracticability of making any satisfactory judicial apportionment of the benefits from such improvements as between the abutting property and the general pujblic. In the language of the Supreme Court of North Dakota: ‘How could the courts ever determine what part should be paid out of the general treasury and what part raised by local assessment? What rule would govern them in investigating such a question? And what right have they to dictate where the line shall be drawn?’ ”
This court put itself in harmony with the doctrine of the foregoing texts and decisions in the case of Mayor and Aldermen of Birmingham v. Klein, 89 Ala. 461, decided in 1889; and has so remained, if we leave out of view some wabbling in dieta superinduced by what we
In that case, Mayor and Aldermen, etc. v. Klein, this court sustained as a constitutional and valid enactment a statute which authorized the corporate authorities of Birmingham to grade and pave the sidewalks along the streets of the city, and to assess the *total cost thereof, although it might be greatly in excess of the value of the benefits to abutting property. It is true that this cost was to be assessed on this property “in proportion to the amount of the benefit accruing to the” property owners; but this only meant that there should be some rule of apportionment of the whole charge having reference to the benefit received by the respective owners and not that no owner should be charged in excess of actual benefits received. The provision would have been fully complied with through an apportionment according to frontage on the sidewalk of the respective abutting lots, and so the act was construed in the opinion.
In the case of City Council of Montgomery v. Birdsong, 126 Ala. 632, it was decided that the charter of Montgomery giving power to the city to impose cost of street improvement upon abutting property provided for the assessment against each parcel of land in proportion to and not in excess of the actual benefit accruing to each parcel. It was assumed rather than decided that such rule of assessment was essential to the validity of the act, and this upon the notion that such was the effect of the decision in Norwood v. Baker, supra; and something was said in the course of the opinion to the effect that the supposed holding in that case, that such cost could not be laid against abutting lots irrespective of the actual benefit to each lot, appeared to be “consonant with reason and authority.” This assumption and this dictum were the product of what is now said by the Supreme Court of the United States to be a misconception of the Norwood-Baker case; for it has since been decided by the court that it.is entirely
The city court in reaching the contrary conclusion was doubtless misled bv the Norwood-Baker case and by what this court said in the Birdsona case, being ourselves misled thereto by the Nonoood-B a,her case. Its decree must be reversed. The cause will be remanded.
Reversed and remanded.