City of Birmingham v. Seaboard Air Line Ry. Co.

PER CURIAM. The majority, consisting of ANDERSON, C. J., and GARDNER, BOULDIN, FOSTER, and KNIGHT, JJ., hold that the property in classes 1, 2, 3, 4, 5, 6, 7, 8, and 9 (as stated in the opinion of BROWN, J.) is a part of complainant’s system of railway, in actual. use as such and necessary to its operation, and is not within the influence of section 2174 of the Code of 1923 (as amended by Gen. Acts 1927, p. 754, § 3), and the assessments made against said property are void for want of jurisdiction on the part of the city commission to levy such assessments; but they do not hold that the Legislature is without power to make such assessments and make it a personal liability on the railway company to pay such' assessments, if special benefits accrue to the property therefrom. All the justices are of the opinion that the assessment of the property in the tenth class is within the influence of the statute, and the assessment thereon is valid. THOMAS, J., concurs with the majority to all the assessments, except the assessment against class 9, and is of opinion that this *79 property is assessable under section 2174 of the Code. BROWN, X, is of opinion that the assessments are valid except as to classes 1, 2, and 3; his views being stated fully in the following opinion. It therefore results that the decree of the circuit court is affirmed, in so far as it holds that the bill has equity as to classes 1, 2, 3 and 4, and is without equity as to class 10. In all other respects, it is reversed, and the cause is remanded. The costs of the appeal are taxed in equal parts against the appellant and the appellee.