City of Birmingham v. Coffman , 173 Ala. 213 ( 1911 )

MAYFIELD, J.

Appellee filed this bill to enjoin appellant front foreclosing an alleged lien upon his property for street and sidewalk improvements and to remove such alleged or pretended lien as a cloud upon his titje.

The bill alleges that the municipal ordinances by which the assessment and levy was made upon this property in question are of no effect so far as this property is concerned, for that it was not included in the ordinances or notices required by the statute for such purposes. The statute under which the assessment was made (Code, § 1361) in part reads as follows: “It shall adopt an ordinance or resolution to that effect, describing the nature and extent of the work, the general character of the materials to be used, and the location and terminal points thereof, and the streets, avenues, alleys or other highways, or parts thereof,” etc. It is alleged in the bill that both the property in question and the streets bounding it were not included or embodied in the ordinance as required by the statute, and that therefore the assessments made against it are void. It is also alleged that the grades of the streets or avenues had not been fixed or established as required by law, before the adoption of the ordinance providing for the improvements of such streets. If the averments of the bill are true, and on demurrer they must be so treated, the bill did contain equity, and the chancellor ruled correctly in overruling tlie general demurrer based on that ground. There was no special demurrer interposed to the bill. Consequently neither the trial court nor this court could pass upon its sufficiency, except as to whether or not it contained equity.

The case at bar is distinguishable from that of Ensley v. McWilliams, 145 Ala. 159, 41 South. 296, 117 Am. St. Rep. 26. In that case it was an act of the Legislature, enlarging the territory of Ensley, that was alleged to be unconstitutional, and the bill there sought to enjoin the collection of taxes assessed upon the property included in the void act of the Legislature, and to remove cloud from and to quiet title. In that case the bill showed that the levy and assessment was void on .its face, and that a levy and sale with no semblance of legality constituted no cloud on title, and that the remedy at law was complete and adequate. The levy, assessment, and sale under that case was had under a void statute, of which all courts will take judicial notice; hence the proceedings would be void on their face.

In this case the assessment and sale is not under a valid statute; but it is the municipal ordinance (of which courts do not take notice), and a failure to fix the grades of the streets and avenues before the assessment, that renders it void. It -was the failure of the officers to comply with a valid statute that rendered the proceedings void. It has been expressly ruled by the Supreme Court of California that a suit may be ■maintained to remove, as a cloud upon title, a street assessment, like this, void upon its face, but void because •of informalities in the proceedings of the officers in making the assessment. — Bolton v. Gilleran, 105 Cal. 244, 38 Pac. 881, 45 Am. St. Rep. 33. Our own case of City of Ensley v. McWilliams, 145 Ala. 159, 41 South. 296, relied upon by appellant, is reported and annotat(-‘(1 in 117 American State Reports, 26, and in a note thereto there are collected many cases which show the distinction between this case and the one relied upon.

Affirmed.

Simpson, Anderson and McClellan, JJ., concur.