City Council v. Foster , 133 Ala. 587 ( 1901 )

SHANPE, J.

Authority in the city council of Montgomery to malve a special assessment against property to defray expenses of sidewalk and street paving is found alone in sections 12 and 34 of the act “To establish a new charter for the city of Montgomery,” approved February 10, 1893. — Acts, 1892-93, p. 428. In the first part of section 12 is a provision relative to keeping sidewalks clean and in repair at the expense of property owners and for subjecting property to such expense, but that clause of the statute is not to be here considered since no item for such cleaning or repairing is involved in this case. The next clause purports to confer power “to require pavements to be iaid, and prescribe the kind of pavements to be laid, and to compel the laying of the kind of pavements prescribed in the streets, sidewalks, alleys, and public places of said city, at the expense of the property owner except as herein provided.” The subject is next pursued in section 34, as follows:

“Be it further enacted, That it shall be lawful for said city council from time to time, and in such manner as it may be determined to pave, gravel or macadamize any street, avenue, square, public place or alley, in whole or in part, within the corporate limits of said city, whenever said city council may deem it necessary or expedient to do so, and for that purpose said city council is hereby authorized and empowered to adopt and provide the means therefor, and to pass all such by-laws and ordinances as may be required for assessing the property to be benefited thereby for such amounts as may be fair and reasonable, not to exceed one-half of the construction thereof, and of the expense of laying down the same, and also to collect and enforce such assessments as in the case of . city taxation, such assessments to be made on property on both sides of the street, or parts of the streets thus improved per front foot, the assessment not to exceed in any case more than- one-fourth of the cost of improvement in front of the property, nor more than ten dollars per front foot of the property taxed, provided, that corner property which has been assessed for the improvement of the street on one front shall not be assessed for the improvement of the street on the other front, exceeding one-eighth of the cost of the improvement on such front, nor exceeding two dollars and one-half per front foot, but in case of corner property the assessment shall include all of the street in front of the sidewalk on the narrowest front of said property.”

In City Council of Montgomery v. Birdsong, 126 Ala. 632, it was held that sidewalk paving though not specifically mentioned in section 34 as a subject of the powers and limitations there expressed, was included therein bv what is said as to street paving. The correctness of that decision has been questioned, but the construction there given the charter is adhered to. By authoritative definition as well as common usage, the term street applies to the whole public thoroughfare including sidewalks, the latter constituting parts of the street reserved to pedestrians. — Bouv. Dict. Tit. Sidewalk; Burmeister’s case, 76 N. Y. 174; City v. Mahan, 100 Ind. 242. The term, however, may be employed to designate the way between sidewalks, and how it should be understood in a given case, may depend on che connection in .which it is used. If section 12 bounded the city’s power in respect of sidewalk paving, it is at least questionable whether it could by any rule assess property to pay for such paving since in general such power is not implied and can only arise from express legislative grant. — Burrows on Taxation, § 126; Endlich Int. of Stat. § 352. The fact that express provisions for levying and collecting paving assessments are made in section 34, indicates that section 12 was not intended to supply assessing powers, and no good reason is apparent why sidewalk paving should be excluded from those express provisions and left to be compelled by penalties or by doubtfully implied powers of taxation. The direction in section 34 for assessing property on both sides of the street for not more than one-fourth of the cost of improvements in front of the property may be applied when the improvement is of the whole street including sidewalks, as well as when the improvement is of the space between sidewalks; the legislative intention being to limit the charge on property to one-half the whole cost, and one-fourth the cost of the entire width being equal to one-half the cost to the center line of the street. Sidewalks are mentioned separately in the act in recognition of the necessity which may exist for improving them alone and to confer power for that purpose. Besides being limited to half such expense, the power to assess is further and materially qualified by the excepting clause of section 12 in connection with that part of section 34 which restricts assessments to property benefitted, and to such amounts as may be fair and reasonable. In Birdsong’s case, supra, these provisions were construed to authorize the malting of such assessments only on a basis of benefits to the property. That construction now prevailing operates to divest this case of the constitutional question discussed in briefs as to whether the legislature had power to authorize unqualifiedly the imposition on property of the whole or of a given proportion of the cost of such improvements. Here the legislature has not attempted to exercise such power.

As appeal's from the statement filed in the city court the assessment here in question is for “sidewalk and street paving.” So much of it as comes from sidewalk paving is based on an ordinance which deviates from the city’s charter in that it directs the whole cost of paving an adjoining property without reference to' the extent of benefit to the property. The ordinance relied on as authorizing street graveling charged for likewise ignores the question of benefit, and in that -particular is obnoxious to the charter.

Municipal corporations derive their powers from the State and cannot legislate in excess of them.. — Birmingham, etc. Co. v. Birmingham, etc. St. R’y. Co., 89 Ala. 465; Dillon Mun. Corp. §§ 317, 319, 329. This principle is applied strictly to ordinances proposing to assess taxes on property for local improvements. — 'Cooley on Taxation, 678; Dillon Mnn. Corp. § 357. We concur with the city court in holding that the assessment made under those ordinances is void. As further expressing reasons for that conclusion we adopt the following from the opinion of the trial judge expressed concerning the street graveling ordinance, the principle stated being applicable to the sidewalks ordinance as well: “It requires the city engineer to prepare and file with the city clerk a statement showing the number of feet frontage of each lot on each side of the street. He is also required to make a statement of the total costs of the improvement of the street, and to ‘apportion against the owners of said lots one-half of the costs of the city of such improvement on said street, to be apportioned against said lots in proportion to the number of feet frontage of each lot on such street; provided, that not more than one-fourth of the costs of such improvement in front of the property, to be taxed, nor more than ten dollars per front foot shall be apportioned to any one lot.’ It then provides that the city clerk, on receiving such statement from the city engineer, ‘shall assess the amount of such improvement in front of said several lots, and collect such assessments at the same time and in the same manner’ as city taxes are collected.’ The ordinance then gives the property owner an opportunity to file objections to the assessment with the city council, and he is also afforded another such opportunity in this court. In this ordinance there is not a syllable which by any sort of construction can fee construed into a recognition of the fact that an assessment by the front foot, even within the limits provided, may not be fair and reasonable. There is not an intimation that the city engineer and city clerk in making the assessment shall consider benefit conferred. The ordinance could not have been framed in terms which would more certainly and effectively deny to these officers the right to consider whether the amount of the assessment was greater than the amount of benefit conferred by the improvement. They are required to proceed according to a fixed plan, and not otherwise. The charter has been held by the Supreme Court to mean that the assessment is to be made ‘fair and reasonable,’ notwithstanding the requirements. that it be made by the front foot. But this cannot be held to be the meaning of the ordinance. The ordinance means nothing more.nor less than that one-half of the costs of improving the entire street is to be distributed among all the lots fronting upon the street in proportion to their frontage. This is a mere matter of arithmetic. The rule is fixed beyond preadventure and is arbitrary in the most absolute sense. * * * The foundation of the entire proceeding being a mere nullity, nothing could be built upon it. The property owner could not be put in default by subsequent proceedings. He was not called to make objections before the city council or in this court. * * * ‘There must be an assessment either made pursuant to the levy, or adopted as the basis of the levy, else there can be no lawful collection of taxes.’ In Hilliard on Taxation, 291, it is said: ‘Assessment is so far an indispensable incident to taxation, that no right of action arises until a legal assessment is made. * * * Even a payment of money as taxes on property before the assessment, and the collector’s receipt therefor, are no legal discharge of taxes subsequently assessed thereon.’ So in Cooley on Taxation, 259, it is said, citing many authorities, that ‘of the necessity of an assessment, no question can be made. Taxes by valuation cannot be apportioned without it. Moreover it is the first step in the proceedings against individual subjects of taxation and is the foundation of all which follow it. Without assessment they can have no support and are nullities.’ — Perry County v. Railroad Co., 58 Ala. 560.”

Judgment affirmed.

McClellan, C. J., dissenting.