# City of Mobile v. Smith

> Supreme Court of Alabama · June 18, 1931 · 223 Ala. 480

URL: https://www.frixlaw.com/law-library/cases/3220743

## Case

- **Full name:** City of Mobile v. Smith.
- **Court:** Supreme Court of Alabama
- **Decided:** June 18, 1931
- **Citations:** 223 Ala. 480; 136 So. 851; 1931 Ala. LEXIS 474
- **Precedential status:** Published
- **Opinion:** Addendum by Brown
- **Judges:** Brown, Sayre, Anderson, Thomas
- **Cited by:** 24 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3220743

## Opinion text

On Rehearing.
BROWN, J.
The first criticism of the opinion made By appellee is that “the Court, in referring
to
complainant’s property, stated ‘that By an ordinance passed and adopted by the City of Mobile on, to-wit, December 8, 1925, it was provided that the cost of improvements to the street in front of said property be assessed against said property and constitute a lien thereon to secure.the payment of said improvements.’ TBe ordinance referred to will be found on pages 20-24 of the record. TBe particular paragrapB which the opinion evidently referred to is Section 2 of the ordinance (page 23 of the record), the material part of which is as follows: ‘Section 2. The cost of said improvements and reimprovements on each of said streets and avenues or portions tBereof, to be improved and reimproved as aforesaid, shall be assessed against the abutting properties on each such street or avenue or portion tBereof, respectively,
so far as said cost is chargeable against said abutting properties.’ ”
Counsel, in preparing the application, probably overlooked the fact that the statement above quoted was not a statement of the court’s conclusion on the facts, but was taken .from that part of the opinion stating the substance of the averments of the appellee’s original bill, and is a verbatim statement of its averments to be found in paragrapB 4 of the bill.
TBe next criticism is in respect to a statement of the opinion: “And although complainant received notice of the initial ordinance and Bad notice and knowledge, prior to the time the assessment was made final and while the improvements were Being made, that the city commission would attempt to levy an assessment against Bis property, and made no oBjection to said assessment until after said assessment was made final, and then only by the filing of'the bill in this case.” This was a statement of the averments of the answer and cross-bill, to be found in paragrapB 4 thereof.
TBe criticism, therefore, that “the agreement and the record in this case” do not justify these statements is clearly without point.
TBe only statement as to the effect of the agreed statement of facts is, “that it sustained the material averments of the Bill and the material averments of the answer as well.” This, on the idea that it showed that the notices required by the statute and essential to the regularity of the proceedings were given, and that this was all that was material or essential to the application of the statutory estoppel. This statement, however, was not pertinent to the only question decided — the sufficiency/of the cross-Bill as against the demurrers filed by the appellee.
The next criticism of the opinion is that, in dealing with the questions presented, it assumes that the purchasers of the bonds were led to believe that the bonds were secured By a lien against the abutting property, when as a matter of fact the time for making objections to the levy By the property owner Bad not expired at the time of the sale. TBe original bill alleges: “That the City of Mobile on, towit, June 1st, 1926, adopted a resolution calling for bids upon bonds to be sold for the purpose of paying for "said improvements, and stating the provisions and
*486
terms to
be contained in said bonds, among which was the following: ‘This bond, in addition to being a direct and primary obligation of the City of Mobile, is also secured by a lien' upon the property abutting on the streets and alleys in said City included in the area known as 23rd Paving Venture or Improvement heretofore duly adopted and authorized by this Board.’ ”
’ In these circumstances the purchaser undoubtedly had the right to rely on such lien, subject only to the right of objection by the property owner in the manner provided by the statute, or preventative efforts on his part to restrain the city from making the levy as authorized by section 1816 of the Code.
The contention of appellee is, not that the city was without jurisdiction or authority to improve Springhill avenue by paving and curbing the same, but it was without jurisdiction to charge the cost of such improvement and curbing against the abutting property, for the sole reason that the appellee’s property was in the area encompassed by the extension of the corporate limits; this exemption resting upon the ordinance and the statute authorizing the extension. The statute declares the character and effect of the exemption in these words: “The provisions of this article
“Shall he held to he a contract
by and between the city and 'the persons or corporations owning the property in the territory exempt from taxation under the provisions of this article,” etc., and section 1809 declares that “the couneil or governing body of the city shall have no authority or power to construct or cause to be constructed any improvements or betterments in territory which is exempt from taxation under the provisions of this article,
the cost of which is assessable against the abutting property,
except as provided in this article.” (Italics supplied.) These statutes are in pari materia, and the presumption is that the Legislature in their enactment had in mind the whole subject under consideration, and, when interpreted with and in the light of section 2174, do not deprive the city’s governing body of jurisdiction, -but establish a right of exemption on the basis of the contract declared by the statute. Statutes relating to the same subject and passed at the same session of the Legislature are to be construed together as one act. 25 R. O. L. p. 1082, § 286.
Under the uniform rulings here, such rights are waivable, and are waived by the property owner if not asserted and insisted upon before the assessment is made final. Code 1923, § 2198; City of Birmingham v. Wills, 178 Ala. 198 , 59 So. 173 , Ann. Cas. 1915B, 746.
The principle has been applied without the aid of statutory estoppel in cases of exemption of property from the payment of debts, where the exemption is not asserted before judgment of condemnation. Randolph v. Little, 62 Ala. 396 ; Wright v. Grabfelder & Co., 74 Ala. 460 ; Martin v. Lile, 63 Ala. 406 ; Sherry v. Brown, 66 Ala. 51 ; Clark v. Spencer, 75 Ala. 49 ; Moseley v. Neville, 221 Ala. 429 , 129 So. 12 .
The holding in Goodman et al. v. City of Birmingham (Ala. Sup.) 135 So. 336 ,
1
is that property not abutting the street to be improved is not brought within the jurisdiction of the city’s governing body, and that notice by publication directed to abutting property owners was not notice to an owner whose property did not abut the street to be improved. To state the question decided in another way, the city commission did not have jurisdiction of the subject-matter.
Much is said in the application for rehearing in respect to an arrangement between the county of Mobile and the city of Mobile relating to the upkeep of Springhill avenue, and as to what occurred between appellee and the city attorney. These are matters dehors the record, and cannot be considered. However, if these matters are sufficient to warrant a denial of the application of the statutory estoppel asserted in the cross-bill-, they may be availed of as defensive matter in answer to the cross-bill.
We are therefore of opinion that the application for rehearing should be overruled. It is so ordered.
Application overruled.
All the Justices concur, except SAYRE, J., not sitting.
1
Ante, p. 199.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3220743. Public record. Not legal advice.