54 So. 209 | Ala. | 1910
Lead Opinion
Section 223 of the Constitution of 1901 says: “No city, town, or other municipality shall make any assessment for the cost of sidewalks or street paving, or for the cost of the construction of any sewers against property abutting on such street or sidewalk so paved, or drained by such sewers, in excess of the increased value of such property by reason of the special benefits derived from such improvements.” Sec. tion 9, Act 1907, p. 300, providing for the power and authority to assess cost of street improvements, says “that in no case shall the assessment against any lot or parcel of land be greater than the increased value of such lot or parcel of land by reason of the special benefits to he derived from such improvement.” It may he, and doubtless is true, that the assessment is not to be based solely and entirely upon the increased value of the improvement of the lot or parcel, but can be made on it in its entirety upon a measurement or general valuation basis, and the value of the improvement is a limitation or restriction on the amount of the assessment.—City of Montgomery v. Birdsong, 126 Ala. 651, 28 South. 532; Norwood v. Baker, 172 U. S. 269, 19 Sup. Ct. 187, 43 L. Ed. 443. The' restriction placed by the Supreme Court of the United States upon the amount of the assessment, and with which our Constitution (section 223) was intended to harmonize, was that it should not exceed the value of the improvement to the lot or parcel. In other words, the tax against the owner should be no greater than the benefits derived by him because of said extension or improvement. The Consti
This conclusion is not in conflict with the holding in the case of City of Montgomery v. Foster, 133 Ala. 587, 32 South. 610. In that case neither the ordinance nor the assessment showed that the levy must not exceed the value of the benefits, and the court pronounced the assessment void. The opinion discusses the ordinance, and, in effect, pronounces the proceedings (the ordinance) as a mere nullity. It does not hold that this recital should appear in the assessment, and we think that the assessment would not have been held void if based on a valid ordinance. We are cited to many authorities by counsel for appellee which hold that the assessments therein considered ivere void, hut they are based on statutes or constitutions unlike ours. They provided that the assessments he only upon the amount of benefits or be • proportioned as per benefits derived from the improvements, while ours is not based upon the benefits, but is authorized against the lot or parcel, with the restriction that the assessment cannot exceed the value of the benefits derived. Moreover, in some of them this material fact was not disclosed either in the assessment or the ordinance directing or authorizing same.
In the case of Crawford v. Pope, 82 Ill. 557, it was held that: “Where an ordinance of such town, appointing commissioners to assess a certain sum for public improvements upon property to he thereby benefited, recites that the trustees have upon proper examination made by them ascertained and determined that there was real estate in the town benefited to the amount required to be assessed, this is a sufficient finding of the fact, and it is not necessary that the commissioners should ascertain the fact again in making the assess
It is also contended that Act 1907, p. 295, is void because violative of the federal Constitution; that it authorizes a taking or a charge upon property without due process of law; that the owner is deprived of “due process” because' he is not given legal notice and a right to he heard. Of course, the property owner is entitled to notice, and it might be to personal notice, if a judgment in personam were to he rendered against him, but the act provides only for a judgment in rem, and requires notice by publication 20 days before the day for the hearing of protests. “The Legislature has a wide discretion in determining the nature and kind of notice to be given, though it has no power to dispense with all notice. If such notice is given as will fairly and reasonably apprise the property owner of the pendency of the assessment proceedings so as to give him an opportunity for a hearing upon the merits, he is not entitled as matter of constitutional right to personal service. Notice by publication may therefore be provided for by the Legislature without violating the constitutional provision forbidding the taking - of property without due process of law. Notice bv publication in a paper of general circulation has been held sufficient as constituting due process of law.” — Jones & Page on Taxation, § 121, and cases cited in note. We also think that section 11 of the act in question gives the owner .the right to appeal and be heard before the assessment is made final against his property. It is true the act requires that the notice be given by the clerk, and should recite that the assessment list or roll has been “delivered to him,” and is open for inspection in the office of the person authorized to make collection of said assess
A common-law certiorari will be awarded when there is no adequate remedy by appeal and only then to review matters of record.—Dean v. State, 63 Ala. 153. The questions urged against certain clauses of the paving contract and the extension of time for the completion of the work are not questions of record or jurisdiction to be reviewed by a common-law certiorari. The statute gives a right of appeal. — Section 12 of the act. And, if it did not, these questions might probably be reviewed by the statutory certiorari; certainly not by common-law certiorari. The appellant contends that the common-law certiorari is not the proper or appropriate remedy for the review of the questions involved in this case. Since we have decided the questions as to the validity of the assessment in favor of the appellant, it could not complain of a failure to decide whether or not said common-law certiorari was the proper remedy; but, in order to determine this question, it has been necessary to consider whether or not the assessment was valid. As a rule common-law certiorari will not lie to bring up or review matters from an inferior to a superior tribunal when such matter is reviewable on appeal.—State v. Southern Cotton Oil Co., 124 Ala. 523, 27 South. 306; Railroad Co. v. Brannum, 96 Ala. 461, 11 South. 468. The appeal must be adequate, however, to correct or remedy the wrong or defect.—Independent Pub. Co. v. American Press, 102 Ala. 475, 15 South. 947. It is true the statute in question (section 12) gives the property owner the right of appeal, and we may- concede that all matters not of jurisdiction
The judge of the law and equity court erred in quashing or vacating the assessment, and the judgment is reversed^ and one is here rendered denying the certiorari.
Reversed and rendered.
Rehearing
On Rehearing.
All of the concurring justices are of the opinion that the foregoing conclusion is correct, as to all points involved, except as to the sufficiency of the notice; the Chief Justice and Justice Evans being of the opinion that the notice was not sufficient for failing to recite that the assessment roll had been “delivered” to the clerk. This question therefore had to be considered by the court en banc, and Simpson, McClellan, Mayfield, and Sayre, JJ., concur with the writer in the holding that the notice was a substantial compliance with the statute. The notice recites that the assessment roll has been completed, and is now open for inspection in the city clerk’s office.