41 So. 934 | Ala. | 1906
It appears from the record that the judgment appealed from in this'case was rendered on January 31, 1905; that there were orders by the presiding judge successively extending the time for signing the bill of exceptions to December 1st; and that the bill was signed November 13, 1905, which was more than nine months after the date of the judgment and beyond- the next term of the court: Section 620 of the code of 1.896 is imperative that “the time all owed for signing a bill of exceptions must not be extended beyond six months from the adjournment of court,” and rule 30, p. 1200, of the code of 1896, provides that'the limit to which the signing may be extended by agreeinent is that it must be signed “before the next succeeding térm of such court.” Appellee claims that as the time when the bill of exceptions was signed in this case was after the commencement of the next succeeding term, and more than nine months after the judgment was rendered, the same cannot be considered. According to the act establishing the city court of Birmingham there is but one term of court, “commencing on the first Monday in September and ending on the last day of the succeeding June.” — Acts 1888-89, p. 995. This court has heretofore held that the limitation as to the next term of court, under rule 30, applies only to extensions bv agreement. — Cooley v. U. S. Savings & Loan Ass’n, 132 Ala. 590, 592, 31 South. 521. The extensions in this case were all by the presiding judge, and the bill was signed within six months after the adjournment of court, as shown by the act above cited.
But another question arises: The act establishing the city court of Birmingham provides that bills of exceptions “must be signed by the presiding judge of said court within sixty days after the day on which the issue
The matter of local assessment for street improvements has been so completely “threshed over,” as expressed in a previous decision of this court, that we will not attempt to go over the argument pro and con in the various cases, but wall merely allude to the latest expressions from the supreme court of the United States and our own court. The substance of the latest decision of ■the supreme court of the United States on this subject is (French v. Barber Asphalt Co., 181 U. S. 324, 21 Sup. Ct. 625, 45 L. Ed. 879) that it is not a violation of the 14th amendment to the constitution of the United States to assess a portion or all-of the cost of the improvement against the lands abutting or in the immediate vicinity of the improvement. And the gravamen of the argument of dhe court is that this is a part of the taxing power of the government, and that from time immemorial govern•ments have not pursued ordinary processes of courts in collecting taxes; hence the methods of enforcing these assessments cannot be said to be “without due process of law,” because there is not provision for a regular investigation by a court and jury in order to ascertain the amount of burden that shhll be placed upon the property. It'holds, also, that the “question of benefits and the
Our own court has followed this decision, and held that it is a matter of legislative discretion to determine whether property abutting.on the streets will be benefited to the extent of the cost of paving the street along the front of such property, and to impose the cost upon the property, “apportioning the charges thereto' according to the distance the several lots may front upon the street so paved”; the argument being, as in the French-Barber Case, that when the legislature determines that the assessment shall be made by the front foot the presumption .is that the legislature has determined that that is the proper measure of the benefit received . Our court says, in reference to our case of Mayor and Aldermen v. Klein, 89 Ala. 461, 7 South. 386. 8 L. R. A. 369, which .is held to be in harmony with our latest enunciation of the doc: trine: “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 reeeived by
As will be noticed, these decisions are based entirely on the construction of the fourteenth amendment of the constitution of the United States and section 24 Bill of Rights, Const. 1875, and upon the Iuav as it stood before the adoption of our present constitution. It Avas AAdiile the Norwood-Baker Case in the United States supreme court and the Birdsong Case in our oAvn court Avere generally supposed to be the Iuav — the former declaring that an assessment beyond the benefits actually accruing to the abutting OAvner from the improvement is as to the excess a taking of property without due process of Iuav (which principle, as before shoAvn, is still Recognized), and that the courts have a right to- inquire into that fact; and the latter, resting upon the same principle, and declaring that “the guaranties for the protection of private property would be seriously impaired if it Avere established, as a rule of constitutional Lav, that the imposition by the legislature upon particular private property of the entire cost of a public improvement, irrespective of any peculiar benefits accruing to the owner from such improvements, could not be questioned by him in the courts of the country,” and going on to affirm the right of the citizen, Avhen such assessment is made, to show “that the sum so fixed is in excess of the benefits received” — that our constitutional convention of 1901 added to our constitution section 223, forbidding such assessments “in excess of the increased Amine of such property by reason of the special benefits derived from such improvements.”
The conclusion is irresistible that, with the lights-before them, the. intention of our constitution makers was
The provisions of the charter of the town of Avondale require the assessment against the abutting owners to be made “in proportion to the amount of the benefit accruing to such abutting owner.” — Acts 1894-95, p. 139. While this is not exactly in the words of section 223 of the constitution, yet it does not violate that section. The assessment may be made in “proportion to the amount of the benefit accruing to such abutting owner,” and at the same time, not to be “in excess of the increased value of such property by reason of the special benefits derived from such improvement.” The act makes provision for notice to the property owner when an assessment is to be made against his property, and authorizes him to appear and contest the assessment, and it authorizes the owner, if not satisfied with the action of- the ¡council, to remove the matter by certiorari up to the city or circuit court, “where the same shall be regularly submitted and tried as in other civil cases.” This last expression shows that the intention of the statute was not that the circuit or city court should merely look into the proceedings before the council, and either quash or affirm the same; but the reference is evidently to cases brought-up by appeal, and the expression “regularly tried as in other civil cases” evidently -means tried de novo.- So the act is not unconstitutional.
The act provides that “not more than one-third of the cost of such improvement * * * shall be assessed against the owners -of abutting property,” not including sidewalks. — Acts 1894-95, p. 139, § 12. The evidence in this case shows that each property owner was charged, with one-third of the cost of the entire street, so that the owner on each side of the street was charged with one-third of the cost of 'the entire street, thus causing the property owners to pay two-tlrirds, in place of one-third, of the Cost of the work. This was in plain violation of the .provisions of the statute, and the court erred in sustaining the assessment thus made.
Section 12 of the act (Acts 1894-95, p. 139) authorizes the mayor and councilmen to cause and procure the streets and sidewalks to be graded, macadamized, etc. The ordinance under which the work was done in this case authorized the street committee to have the streets “graded, guttered, curbed, and macadamized.” The ordinance did not contain any specifications as to the kind of work that was to be done, the material to be used, or any other matter in regard either to the street or sidewalk. These matters seem to have been left entirely to the judgment of the street committee. It is a familiar principle of law that legislative authority cannot be delegated, and the authorities are clear to the effect that the authority granted to grade and pave streets and sidewalks is legislative, and that the amount of the improvement, its kind and character, must first be ascertained by the legislative body of the city, and not delegated to the engineer, the committee, or any one else. — McQuillan, Municipal Ordinances, § 86; Hydes & Goose v. Joyes, 96 Am. Dec. 311, and notes; Birdsall v. Clark, 29 Am. Rep. 105, and note; McCrowell v. Bristol, (Va.) 16 S. E. 867, 20 L. R. A. 653, and note; City of St. Louis v. Clemens, 43 Mo. 133; s. c. 52 Md. 133; Ruggles v. Collier, 43 Mo. 353; Foss v. City of Chicago, 34 Ill. 489; Moore v. City of Chicago, 60 Ill. 243; Bolton v. Gilleran, 105 Cal. 244, 38 Pac. 881, 45 Am. St. Rep. 33; Thompson v. City of Booneville, 61 Mo. 282; 1 Dillon on Munic. Corp. (4th
It is next insisted that this assessment is invalid because it is shoAvn that each lot Avas assessed on the basis of the cost of the Avork done in front of it, and that the cost of the work done on the entire street was not first ascertained and the cost apportioned among the abutting oAvners. The act provides that “the expense thereof shall, after the completion of the same, be assessed upon the abutting owners of land or lots along and adjacent to the streets, alleys or sidewalks along Avhich the Avork is dene, in proportion to the amount of the benefit accruing to such abutting owner”; also that “after such'work on any street, alley or sidewalk shall bé completed in front of or abutting any land or lot OAvner, the said mayor and board of aldermen shall have the mayor to give the notice required, of the time and place when the meeting is to be held to consider and determine the amount to be assessed against the abutting OAvner.” and the amount Avill then be determined.” — Acts 1894-95, pp. 139, 140, § 12. There is high authority for the position that any assessment of the cost separately against each lot owner, based alone on the cost of the work abutting his property, is illegal and void. — City of Independence v. Gates, 110 Mo. 374, 19 S. W. 728; Davis v.
For the errors mentioned the assessment in question Avas invalid, and the town of Avondale was not entitled to recover in this case. The judgment of the court is reversed, and the cause remanded.
Reversed and remanded.