Opinion
3 Div. 566.
June 8, 1922.
Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.
Hill, Hill, Whiting Thomas, of Montgomery, for appellant.
The bill has equity. 178 Ala. 198, 59 So. 173, Ann. Cas. 1915B, 746; 170 Ala. 149, 54 So. 209; Code 1907, § 1359. The assessment is void. Code 1907, § 1374; 178 Ala. 198, 59 So. 173, Ann. Cas. 1915B, 746. Appellant is not estopped to attack the assessment, because the notice given is insufficient. Authorities supra.
Ludlow Elmore, of Montgomery, for appellee.
The assessment is a final judgment, which can be reviewed only by appeal seasonably taken therefrom, in accordance with Code, §§ 1389-1399. 185 Ala. 148, 64 So. 73; 162 Ala. 565, 50 So. 356; 178 Ala. 198, 59 So. 173, Ann. Cas. 1915B, 746. If the notice is given at some stage of the proceedings, and in such mode as to give the party an opportunity to be heard before a final conclusion is reached, it will be sufficient. 178 Ala. 198, 59 So. 173, Ann. Cas. 1915B, 746.
This bill, filed by appellant against the city of Montgomery, seeks injunctive process to restrain the enforcement of a lien for the improvement of a certain street in the city. The city's demurrer to the amended bill was sustained upon the ground, it appears, that the amended bill is without equity.
The criticisms the amended bill makes of the proceedings culminating in the lien asserted will be treated in the order of their argument in the brief for appellant.
It is insisted that the ordinance providing for the assessment of the cost and expense of the street improvement in question was fatally defective, for that it illegally restricted the assessment against the company owning railways in the street to the cost incurred in improving the street "between the rails"; whereas Code, § 1374, requires the assessment, in such circumstances, to include not only the space "between the rails," but also the space 18 inches "on each side of the tracks," with the result, it is contended for appellant, that appellant is required to pay for the cost of betterment that should have been paid by the railway line or lines. The error now urged should have been presented on the hearing provided by Code, § 1377 et seq. Woodlawn v. Durham, 162 Ala. 565, 567, 50 So. 356, where it was held, among other things, that an assessment for items not properly chargeable to the abutting property owner could only be contested under the method the statutes provide, not through a bill in equity to annul or to avoid the assessment — from a decision adverse to the property owner an appeal being provided. The doctrine of the Woodlawn Case was approved in City of Birmingham v. Wills, 178 Ala. 198, 214, 59 So. 173, Ann. Cas. 1915B, 746, where the statutory system is fully recited. The first of appellant's contentions is without merit.
It is next insisted that the notice published by the city clerk was defective — so defective as to avert the concluding effect of Code, § 1381 (B'ham v. Wills, supra) — in this: That the publication only purported to give notice of an assessment for "said public improvement," which, the argument is, was but a recital of betterment through "curbing, surface sewers, storm sewers, brick walls," omitting the street's improvement through paving with gravel as a basis of charge or assessment against appellant's abutting property. This insistence is predicated of a too narrow construction of the published notice. The "said public improvement," the assessment list or roll for which the notice recited had been delivered, referred the "said public improvement" to the several acts or means of betterment enumerated in the notice, paving with gravel being one of them — each, for the purposes of the notice, contributing to the single result described in the notice as "said public improvement." The notice might, of course, have been more satisfactorily phrased; but, notwithstanding its imperfection (if so), it was sufficient to invoke the concluding effect of Code, § 1381, wherein it is provided that the property owner failing "to file objections * * * shall be held to have consented to the same" (B'ham v. Wills, supra), this appellant not having objected to the "assessment" at any stage. It is hardly necessary to add, though in caution it may be noted, that, as stated in the brief for appellant, the bill "does not seek to strike down the assessment because of any defect or irregularity in the preliminary ordinances, but for defects in the notice of the final assessment."
It is the design of Code, § 1377, to authorize the publication of the notice therein prescribed upon the delivery of the completed assessment book. The bill avers:
"Your orator further avers that while said notice recites that the assessment roll or list has been delivered to the city clerk, that in truth and fact said assessment roll or list had not been delivered to the city clerk and was not open for inspection in the office of the person authorized to make collections of said assessments. Wherefore, your orator says she is not precluded or estopped from presenting defenses or objections to said claim of lien."
The act of the official in ascertaining the existence of the condition to his action and in publishing the notice is a ministerial act (Flournoy v. Jeffersonville, 17 Ind. 169, 79 Am. Dec. 468, a deliverance approvingly cited in Grider v. Tally, 77 Ala. 422, 54 Am. Rep. 65, in Merlette's Case, 100 Ala. 42, 14 So. 562, and in Purifoy v. Lamar, 112 Ala. 123, 20 So. 975), and when publication of the notice is made in his official capacity it is presumed that the basis for his authority to make the publication existed as Code, § 1377, prescribes (Dunklin v. Wilson, 64 Ala. 162).
It is not averred in the bill that at the time of the publication in the newspaper the assessment roll or list was not in the office of the city clerk, open for inspection. It is not averred in the bill that appellant ever sought, in the ample period afforded, to inspect the list or roll, or that she was denied the opportunity to inspect it, or that it was not open to inspection between the time of publication and the date of the hearing to which the notice refers. Nothing is definitely averred indicating in any degree that the purpose the notice is designed to serve was deflected, embarrassed, or defeated by the nondelivery of the roll or list to the city clerk. Taking the bill's averments in this aspect as entirely true, they are not inconsistent with the view that the delivery denied thereby is referable alone to the formulation of the notice rather than to its actual publication for the purposes such publication is intended to serve. On hearing on demurrer, the bill does not by its averments impeach the basis upon which the officer may make the publication prescribed in Code, § 1377; and hence the concluding provisions of Code, § 1381, before quoted, are applicable in the premises.
The prescription in the published notice that required interested property owners to file their objections "before the time of said meeting" was inconsistent with those provisions of Code, § 1381, which permit the presentation of objections before or "at said meeting"; but that was an irregularity only, an error that could not have precluded, and is not averred to have obstructed, the appellant's exercise of her statutory right to interpose objection to the assessment "at said meeting." Likewise this error in the notice was within the concluding effect of Code, § 1381; the appellant never at any time having filed objection to the assessment against her property.
The court did not err in sustaining the demurrer to the amended bill.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.