*1 '214 realty- other he owned
'prescribed or that having evidence -such No in this state. the-evi- by appellants and presented
been sufficient being court the trial
dence before the com- confirming support the order properly report, the same was missioners’ appealed decree here and the sustained ordered. So
from is' due affirmed. to be
Affirmed.
LIVINGSTON, C. and GOODWYN J., CLÁYTON, JJ., concur.
WATER WORKS et BOARD OF MONTGOMERY al.
SULLIVAN et al.
Supreme Court of Alabama.
Nov. Rehearing
Modified Jan. *3 appel- Knabe, Montgomery,
Walter J.
lants.
PER CURIAM. equity appellees This a suit as owners, occupants separately, prop- and ap- Hobbs, Montgomery, for & Godbold erty city the sanitary served pellees. sewerage system city. purpose declaratory judgment enter a Sanitary “The Water and Works Sewer * * * respondents, Board and the board, directors have right, of said- no portion sys- power authority service levy any served in a of a sewer or * * * service; respond- charge for sewer that the tem so appropriate the service charged an power rate right, ents have no or levy disposal have which such sewer rendered a * * * plant, plant the re- sewage been levied treatment or spondents au- right, power which has have no other a sewer thority levy sewer service not to extent been ex- according which is to the not graduated assessments”. serv- tent which is benefited occupy complainants These own property by portion of ice *4 rendered in property originally charged which was system wholly or in sewer which has been part whole or in with the cost of sewers part according paid in for assessments and making It to it. is accessible noted that property to is bene- the extent to which the board, by charge the the for sewer service disposal plant by sewerage and to the fited a provision exempting them no was for made by property extent is benefited to which the liability on sewerage charge the for plant; a the re- sewerage treatment that having in whole account of been assessed spondents right, power authority or have no the part for the cost the sewer to or of charge to which is without levy a service by specially the that it was benefited extent of the regard to extent benefits the of same. affected; respondents property levy power to right, or have no prohibits 223 Section of the Constitution any charge against tenant who any service by abutting against a city an assessment system city of in the Mont- uses the sewer property for con- owners the cost of the gomery”. sewers, struction of the “in excess of by property reason increased value of such or- alleged The is to have been board special from such benefits derived 37, of provisions Title ganized under the of § improvements.” power The make such to Part, Code, 402(15), Pocket which is legis- taxing power is assessment 1951, 1951, 29, Acts Act of General city by legislative lature conferred on the 416. page City Armstrong enactment. of Mont- v. mayor by A deed was executed 632, 862; Sec- gomery, 38 So.2d Sep- city Montgomery to the board of 646, 37, 308, 601 to Title Code. tions 2, 15, 1952, August before tember 1952. On question, acquired system in the'board But since the assessment of the prescribing a resolution a sched- specially an property benefited is cost to ule to be made for sewer serv- charges of by power limited taxing exercise of the September 1, 1952. The ice as of effective Constitution, the revenue 223 of section thereby by regulated rate is “amount city usable for received is that of the when used”, quantity. graduated by the No water special purpose, required law or for premi- exemption made for a is user whose required. purposes not so general when charged all originally were with or a ses 442, City Mobile, 244 Ala. 13 Mitchell v. system. portion of the construction of the property owner does not physical properties an interest own 1951,supra, Act of section iThe system right nor a to its franchise Code, Part, pro- 402(18), Title Pocket They city. belong to the There free use. charges to be made vides sewer why city no constitutional reason is board, “provided but proper charge for such exact a cannot any system sewer shall be for services from any everyone. city A is au use shall in such manner there established require sanitary connections respect portion to with thorized be no system. sanitary to its Sections system made have been be such sewer pre Code. This wholly part by is assessments required sumably city property specially against benefited Mont any person property is thereby, gomery. whose
n 218 f privilege Brockton ’(cid:127)have the decreeing In Carson v. so but the the case o 398, 21 Commission, Certainly courts Sewerage U.S. cannot no fix’ a rate. 182 accuracy held not required it was as a con S.Ct. exactitude of L.Ed. law, (due validity Amendment 'dition to the
violate the Fourteenth
of the rate.
stated,
simply
Constitution
process)
United States
is that when a
using its
city
draining property,
in
throughout
'if
makes a
its course
cost
system, though its
sanitary sewerage
cluding
disposal plant,
has been
owners.
for in
against property
was assessed
whole or in
assessment
owners
special
This
benefits,
permitted.
was in a case where
no use
sys
required
were
with
If
paid,
to connect
of it
the board
some
so
where
the sort
lay
“appropriate”
tem. We find no case of
the Act
required to connect. charge.
owners were
this could be
same to-
We think
Compare,
Sewerage Commis
plant
Carson
all users of
undertak
without
sioners,
56 N.E.
ing
apportion
175 Mass.
for
according
L.R.A.
A.L.R.
“appropriate
mula.
charged
rate” to be
part by
one who is
served
*5
Constitution,
But under
system
our
and in
paid
by
for
assessment
’be “in excess
such assessment cannot
part by
for,
paid
not
as the
so’
propérty by
such
(cid:127)of the
value of
requires,
increased
’statute
has no reference to the use
special
reason of the
benefits derived’
thereby
'to be made of
funds
derived.
. n improvements.” This is-
to the
limited
The service
as
is to collect funds
construction”,
not compensation
“cost of the
and
property.
does
city
for
use of
include its use
it does in some states.
Andalusia,
as
City
Benson v.
(cid:127)
that,
assessed,
.is
although
Avram,
So
a tax
443; City
195 So.
of Leeds
244
v.
-project-
property owner
cost the
important
Ala.
purchased and has three property city’s sanitary (cid:127)classes of sys owners who were taxed to users of the pay property for it. Such owners not ac- tem. One class embraces those whose n property by tually sustaining loss originally pay the assessment assessed to for complain sewers, ,position part -are not in to. of a use .the cost in whole or in (cid:127)charge. provides The Constitution no and throughout when its flow is served n limitationon a charge. paid by use proposed by prop sewers for "assessments to
erty (2) applies thus served. Another class making public utility passes Rate where in the course of the flow (cid:127) character, legislative may through part in service is and which sewers not were by legislature by exercised itself or against be an assessment the owners agency legislative property. administrative (3) applies au- of Another class City thority. Mobile, Mitchell v. 244 to those property whose is served sewers 664; Avery Freight Ala. 13 assessing any So.2d without constructed White, 245 Lines Ala. 18 So.2d v. cost to owners. It clear is 732; Murray one, Service Trans- Act that supra, charged A.L.R. class be cannot port, 254 system Ala. Am. which for use of the he is province But it is the required to connect and does so. It Jur. interpret apply legislation and three, supra, pay courts also clear class must abridges whether it and determine consti- charge, confiscatory a standard not requirements. rights required tutional amount since he is to connect and subject to any exemption. deduction or “appropriate” If an rate is requires at It is also clear that the legislature imposed tempted 2, supra, board only and as to class rights, constitutional appropriate violates courts can be which made one .serving request of at -paid on it system Court,,while portion of the -the of that use the. , under Chief of the cost assessing for without Justice 32, Code, by the and property owners. acquisition § to the was. opinion. Court as its larger may have drainage Some districts acquired without as- sections of the Affirmed! The circumstance sessment than others. fortunate, is more that one such district LAWSON,. LÍVIN-GSTON, J., respect, both af- C. and than another in that STAKELY, SIMPSON, MERRILL way the same but not to same fected CLAYTON, (cid:127)extent, JJ., concur. fixing controlling should not be legislature charge for use. 'its such dis- probably did intend that each GOODWYN, sitting. J., not every comparison with trict be measured in ap- (cid:127)other, could but that the board fix On.Rehearing. to all dis- propriate applicable alike rate qualities there- having those without tricts arbitrary discrimination.'
by creating an PER CURIAM. have that the board It is our view only Appellants one insist that there is so, long do effective a's made an effort to Montgomery, class of sewer users when this as enacted as the law remains is, That those they belong to class No. 2. not so undertaken- fixed. It rate was had sewers, some' whose is served begun. The up this suit was to the time which was assessment respect by Act changed in law' was property owners. against n 176), in- (No. not here June'30, 1953 made does not take into consideration *6 volved. con-' The ordinance cannot -be so status. require comply1 legal with the as to strued trial court was The decree- n respect. there' -It is “that ment in that charges levied service i(l) that the sewer respect charge with to 15, shall be no illegal. In that re 1952 were August system may that have of such sewer applies to spect, illegality only while such part assess wholly or in been for designated above as by we have the. classes specially property' bene two, they against ments the are all so inter and one numbers 'prop any' person severable, thereby, but whose the- so that fited not to be woven as portion of the erty á part is served as contained rate structure whole be system so for 15, not should be va sewer August resolution of .1952 service the, appropriate rate for the charged an that' the decree of It follows cated. disposal respect property a sewer should be affirmed. rendered such in this trial court injunction plant”, was ordered as permanent etc. (2) A charges fixed of such collection to rate; did un The sewer service not 15, August 1952. That of resolution by the comply with that to feature dertake (3), foregoing. from natdrally results law, all-property that owners on assuming the decree also- features of (6) and >(4),(5) belong to that made whom sequence. follow They- know the (No. 2). class only with can deal This Court charge is made when the1 basis on which by the board resolution as made charges they requires. When are not re so law 15, aIf new and dif August dated 1952. usé the sewer quired pay for the of to charges should be set schedule of ferent it, part system, the use of a of only but become cannot the sub board it up of it all charge for the use cannot a then only It this suit. relates matter of ject part to that allocated the court of facts. existing can be made. -which on affirmed. should be The decree carefully examining the evi- Without dence, apprehend opinion prepared by we that at in some was least foregoing The Supernumerary entire cost of the was Foster, of this situations the line Justice 18, existing against whose than March assessed owners not later perma- made injunction extent And property was that when was thus served and to nent, the law far as specially only that benefited in so the entire it meant service pur- stood, did at all to then could not and not them. There could be no benefit and port of a sewer property simply pipes enjoin were collection because subsequent legisla- they charge it, laid unless under adjoining claimed the street 460, 246 Ala. parte Myers, are of with a dis-r tion. See Ex a line of sewers Darden, posal The dis- 21 provision So.2d Darden of some kind. 525, posal enter into considera- provision should tion Section fixing special benefits. question as to the effect The then arises presume We therefore Code. 30, 1953, upon the reso- Act of June is true or it did. But whether August lution dated of-the board not, owners assuming that fixing charge. a sewer 2, they all are belong to class No. entitled that the for the use of the know that the the effect decree principle fixed upon the sewers is made illegal well charges levied are was appear in does not the ordinance law. That fixing supported: not the resolution charge. fixing the was no effect. them void volved. of Title collectible; workable foregoing supra, section 4 We 30, 1953, opinion and should against Pocket are that the decree was (which which was not here those we noted that changed by Act No. 176 Part, be refunded. opinion exempt by Code) were not trial the law is court was the use of the Act In the [18] law in tion. person operative operative when the law supra. account not to ordain could resolution apply, It who was The resolution was of the terms provides apply at that time because at not the time it was because it violated resolution, but exempt facts of the Act so continuing not void but not then authorized. there existing any law was opera status could no is the de rendered March 1953. That have the same Valid ordinances perma It cree which under review. *7 legislature, force as acts of the and effect respondents from col nently enjoined the repealed. they are remain in force until charges levied lecting as 181, Municipal Corporations, C.J.S., 62 § out, provided may they but that be there set 338, 446(f), page 863. There is no page § appeal. in trust pending collected held objection operate not that a law shall until Under it We affirmed decree. there that ex rel. Gaston v. future State date. collected, hold, have been as .we should 321, Black, 82 387(9); 199 So. Ala. 74 only set under and authorized up Statutes, 410, page 978. C.J.S., § law as then the of the status stood. rendered Act That decree was before No. 15, August of 1952 The ordinance 30, 176 1953. of June operative if there had been would have any person exempt terms not within its been simply judgment Our affirmed that operation. law, When by law from its the court, enjoined trial which the collec 1953, exemp of removed the 30, Act June tion of the sewer levied set as out operation persons ex tion its That decree referred in that decree. to the 1951, supra, op Act empted of adopted August 15, resolution of board of at the ordinance once became-ef eration 1952, authority of the Act on the of pro as them without fective further supra, respect and did not consider it so. make cedure possibility effect of another act might many respects which in the future be enacted In on this is similar to our the sewer could based of County, which be as case Hawkins v. 233 Jefferson board. it was ordained So Ala. 169 So. which we held with only decree as affected status reference an act of legislature affirmed
221 SIMPSON, LIVINGSTON, J., and C. then could because not void it was CLAYTON, STAKELY, merely MERRILL and operation its apply, JJ., au concur. law time suspended until such Com Docks State application. thorized Jones, GOODWYN, J., sitting. rel. v. State ex mission 150 537. So. respects LAWSON, J., in certain concurs decree affirming the judgment Our opinion as indicated his memorandum injunc- contemplate an does not
trial court which follows: the sewer of the collection tion op- became 1953 the Act of after spe- LAWSON, (concurring Justice erative. cially) . have filed appellees Counsel the court does presently case before allowance for the petition in this Court not, present my opinion, for our properly appellees defending attorneys’ fee an validity of the 1953 consideration the prin applicable appeal. findWe this on act, act, amendatory the effect of that nor ap appeal, the an “On ciple thus stated: valid, upon existing if at the ordinance attorney’s fee an may fix pellate court ef- amendatory became time the act said appeal, and rendered, pending services Hence, limit I fective. feel constrained dut of payment thereof direct my questions the other concurrence to ap control custody and fund treated. Attorney and C.J.S., 7 pellate court.” Jackson, Swift v. Client, page § Cir., 37 F.2d
10 should trial court decree above, and this Court as modified
affirmed the allow- application grant the repre- attorneys’ fee to counsel ance of appeal. appellees senting on this AND SANITARY WATERWORKS SEWER al. v. BOARD et DEAN. prepared opinion was foregoing this Supernumerary Foster, Div. 654. Justice request it at the Court, serving while Supreme Court of Alabama. under the Chief Justice Aug. Code, and was opinion. as its by the Court *8 15, 1954. Rehearing Denied Jan. modified trial court is decree charges collected for not to affect so as after and as sewer service is affirmed. modified attorneys’ allowed fee
In addition to the appellees for services rendered
counsel court, affirmed, in the trial which is them hereby additional allowance is made for $1,000 appellees representing
them of payable appeal out of the funds
on this to the users of to be returned
ordered system by trial as here court
affirmed.
Modified affirmed.