56 So. 874 | Ala. Ct. App. | 1911
The proceeding which terminated in the judgment of the court below in favor of the appellee for an amount claimed by it as an assessment against property of the appellant for the cost of paving
It is claimed in behalf of the appellant that the proceedings inaugurated by the adoption of that resolution were insufficient to afford a legal support for an assessment against his abutting property of the cost of the improvement made under those proceedings, because of the failure of that initial resolution to comply with the requirement of the statute as to the description in such resolution of the improvement thereby determined, upon, the cost of which, or any part thereof, it is proposed to assess against abutting property. The 'provision of the statute is as follows: “When the council of any city or toAvn shall determine to construct or im
The specific objection urged against the sufficiency of the initial resolution above mentioned is that its expression of a determination to pave the street mentioned “with bitulithic pavement, vitrified brick, or other approved material,” is not a compliance with, the requirement of the statute (Code, § 1361) that the ordinance or resolution therein provided for shall describe “the general character of the materials to be used.”. It is insisted that a.'resolution to pave a street “with bitulithic pavement, vitrified brick, or other approved material,” is, in that respect, wholly indefinite and uncertain, and does not at all designate or describe the general character of the materials to be used in making the proposed improvement. The answer to this suggestion principally relied upon by the counsel for the appellee is that the proceedings of the council subsequent to the adoption of the resolution in question had the effect of removing all uncertainty as to the material to be used in constructing the proposed pavement and made manifest the purpose of the council to have a bithulithic pavement constructed. Kef eren ce is made to the ruling in the case of Harton v. Town of Avondale, 147 Ala. 458, 471, 41 South. 934, in support of the proposition that the entire proceedings of the council are to be looked to to ascertain whether or not it made the definite selection of the material to be used which is required by the statute; and it is insisted that the terms of the resolution adopted by
A statute conferring upon municipal corporations the power to assess against private property the whole or any part of the cost of a public improvement, the construction of which inures to the special benefit of such property, is a grant of power, special and unusual in character and in derogation of the common law, by which the title to property may be divested by the action of a subordinate statutory tribunal. The power exists only so far as it is clearly conferred by the terms of the statute, must be exercised in the manner prescribed by the statute, and every requirement of the statute which is designated for the protection and benefit of the owners of property to be affected as the result of the proceedings must be observed in all its essential parts. The mode prescribed by the statute for the exercise of such a power becomes a measure of the power itself, .and any substantial deviation therefrom will render the proceed
The objection above mentioned to the validity of the proceeding disclosed by the record in this case is to be considered, in view of the nature of that proceeding as it has just been characterized. There is no room for a plausible claim that the initial ordinance above quoted described “the general character of the materials to be used” in the proposed paving work. It cannot be said that a statement of a determination to pave a street “with bithulithic pavement, vitrified brick, or other approved material” shows that any particular material had been selected. On the contrary, it shows thg,t the material to be used in making the proposed improvement yet remained to be chosen. The resolution does not disclose any effort to designate or describe the material to be used so as to give any definite information as to this feature of the proposed work. The question, then, arises whether or not the requirement of the statute in that, respect is to be regarded as one designed for the benefit, or protection of the owners of property proposed to be subjected to a charge as a result of the proceeding, so as to make a failure to comply with it a ground of objection to the validity of the proceeding .available to such a property owner.
As section 1361 of the Code is in effect a provision for framing a proposition for a public improvement, and is followed by provisions for giving notice to the owners of property which may be affected by the construction of the improvement, and for affording them the opportunity of presenting objections or protests against the proposed undertaking, it would seem that an ordinance or resolution embodying a proposition for such a public work could not be regarded as substantially complying with the requirements of the statute if it omitted from its description of the improvement proposed to be made any feature of it which the statute expressly requires to be stated. Publication of the ordinance or resolution is the method prescribed by the statute of giving notice to the property OAvners of the proposition embodied in it. Code § 1363. Certainly the statute contemplates that that published proposition shall definitely inform the property OAvners of “the general character of the materials to be used.” Without that information, they are not afforded the opportunity, intended by the statute to be given, of determining Avhether or not to object or protest against “the material to be used.” Objection on this ground cannot well
Appeal dismissed.