59 So. 654 | Ala. | 1912
Lead Opinion
Certiorari to the Court of Appeals. Petitioner, the city of Anniston, complains of the ruling and opinion of the Court of Appeals as erroneous, in that it was there held that the initial resolution of the city council, preparatory to the paving of Tenth street and the assessment of a part of the cost thereof against lot 13, block 149, on the north side of the street, which said resolution, undertaking to comply with section ■ 1361 of the Code, provided that the street should be paved with bitulithic pavement, vitrified brick, or other approved material, whereas said section provides that the initial ordinance or resolution in such proceedings shall describe “the general character of the materials to be used,” was void, and the judgment had at the end of the proceeding, and on appeal from the assessment to the city court of Anniston, was also void and of no effect.
In our recent case of Birmingham v. Wills, 178 Ala. 198, 59 South. 173, we had occasion to consider the office of section 1383. of the Code, which undertakes to establish a legislative estoppel against property owners who, after due notice, fail to appear to contest the final assessment in proceedings of this character. The operation and effect of the section we held to be such as to relieve us in that case of the necessity of discriminating between those steps preliminary to the final assessment, which, in the absence of statutory estoppel, have been ordinarily considered necessary to the validity of the assessment, and those the omission or imper-
In this view of the statute, it may become necessary, in a case where, as here, the complete statutory estoppel of section 1381 does not operate, to determine what errors or omissions in the proceedings preliminary to the process for final assessment are so fundamental as to •require, on objection taken, an abatement or declaration of invalidity, and what are those technical errors or irregularities which ought not to lead to that result. We think there can be no doubt that the requirement of an initial ordinance or resolution of some sort is indispensable. Indeed, an ordinance or resolution sufficient to show at least a bona fide intention and ef
Section 1364 of the Code provides that at the first meeting of the council and property owners the council shall consider objections and protests, if any, “and may confirm, amend, modify, or rescind the original ordinance or resolution.” In this case it appears that the council, after hearing objections, adopted a resolution in language somewhat different from the original; but, for reasons to be found stated in the opinion of the Court of Appeals, this resolution must be held to have merely confirmed the original therein referred to. We may suggest that, if a resolution passed at that stage of a proceeding differ fundamentally from the original, it must be considered as the commencement of a new proceeding, in the prosecution of which the omission of any essential requirement of the statute, made for the governance of original proceedings, will be omitted at the peril of its abatement on the final hearing for assessment; for otherwise property owners would be deprived of their qualified right of veto. This seems to be the meaning and effect of the statute.
In view of the provision that the council may, in the event its proceeding is abated on account of any defect in the notice of proceeding before or subsequent to the notice of final assessment, commence a new proceeding ■ — -the statute denominates it a “supplementary proceeding”. — for the assessment of the cost of an improvement already completed; it may be that an objection going, not to the amount of the assessment, but to the lack of conformity to statutory requirements in the preliminary proceedings, will be of doubtful value to the prop
We are referred to Ex parte Paducah, 89 S. W. 302, Emmert v. Elyria, 74 Ohio St. 185, 78 N. E. 269, and Jacksonville Ry. Co. v. Jacksonville, 114 Ill. 562, 2 N. E. 478, as cases on all fours with case at bar, and as holding that a description of materials, such as was used in the ordinance in question, satisfied the requirements of statutes substantially identical with section 1361 of our Code. In Illinois the court held that an ordinance prescribing a pavement of brick, and describing its materials and manner of construction with particularity in all other respects, was not rendered void by the fact that it permitted the foundation to be laid in “cinders, sand, gravel or other materials equally suitable.” We find no fault in the decision. In the Ohio case it appeared that the council had determined that the paving material should be asphalt, brick, or other material, as might thereafter be determined. The court, without citation of authority or notice of cases to the contrary, said, “This meets the requirement of the statute.” The consideration which induced the Kentucky Court of Appeals to a ruling in line with the contention of the city of Anniston in the case at bar was thus stated by the court: “It is obviously good policy, and to the best interest of the public,, that ordinances of this nature should be so framed as to bring about competition in the bidding for such work.” The weight of authority is to the contrary. A number of the cases are cited in the opinion of the Court of Appeals. Some valuable paving processes are patented; some paving materials of great value are in effect pro
The property owner in this case did object at the proper time and place; but the grounds of his objection, so far as they are made to appear, may be summarized in one proposition; That the assessment Avas in excess of the increased value of his property by reason of any special benefit conferred by the improvement. This made an issue of fact on Avhich the property OAvner Avas entitled to be heard and to examine Avitnesses (Code, §§ 1382, 1383), Avhich right he also had in the city court on appeal. Section 1394. There Avere other objections, as that the assessment Avas in violation of the Constitution and statutes of the state, or
It results, in our opinion, that neither the assessment by the city council, nor the judgment of the city court, were void; and, further, that, no objection to the preliminary proceedings having been taken, the city court properly proceeded to an assessment of the amount of the benefit conferred by the improvement. In order that the Court of Appeals may consider those assignments of error which are directed to questions raised in respect of the proper ascertainment of the amount of the benefits conferred, the judgment of that court is reversed, and the cause is remanded.
Reversed and remanded.
Concurrence Opinion
concurs in the conclusion. He holds that the initial ordinance shown by the record was a sufficient compliance with the statute.