City of Hartselle v. Culver

*670 SOMERVILLE, J. In support of the action of the trial court in quashing and annulling the assessment for street improvement— a macadamized roadway — made by the city council of I-Iartselle against the abutting property of'appellee, counsel for appellee contend that the municipal proceedings were fatally defective in four particulars: (1) In confirming the preliminary resolution and ordaining the improvement before the selection of the character of the improvement — that is, whether it should be of water-bound macadam or of slag; (2) in failing to make any preliminary estimate of the cost of the improvement ; (3) in failing to prepare and file plans and specifications of the work that were sufficiently definite and informatory; and (4) in failing to pass a grade ordinance before the improvement was finally ordered, or at any other time. 1. In cases recently before this court it has been several times held that, in preliminary improvement ordinances of this character, several different kinds of paving material might be specified in the alternative, as the material to be used, from which a selection would be seasonably made; particularly where the materials named are of the same general nature. Sanders v. City of Troy, 211 Ala. 331, 100 So. 483; Stovall v. City of Jasper, 215 Ala. 300, 110 So. 317. This .is now, in fact, expressly provided for by section 2180 of the Code. In this respect the ordinance here presented was clearly unobjectionable. 2. A preliminary estimate of the cost of the projected improvements, along with other details, must be made and filed in due season for the inspection and information of! property owners, before finally ordering the improvements. Code, §§ 2176, 2177. The only estimate that appears to have been made in this case was a declaration, incorporated in the preliminary ordinance, that the cost of this particular improvement on Mynatt street, along with two other roadway improvements, and concrete sidewalk improvements on 10 other separate streets, amounted in gross to $15,100. In order to serve the purpose of the statute, and to inform property owners approximately of the burden to be imposed on their property, an estimate should be made and filed showing the cost of each separate unit of the contemplated improvements, and where different materials, in the alternative, are suggested for use in the proposed construction, the estimate ought to be for each of those materials. Anything short of this would be practically valueless, as indicated by the record in this case, showing that the cost of the macadam paving was $3.28 per cubic yard, while the cost of slag and cinders was only $2. We conclude that there was no estimate here of the cost of this particular improvement on Mynatt street, within the purpose and requirement of the statute Code, § 2176), and that its omission was a material defect, affecting the regularity of the proceedings, and hence affecting the technical validity of the assessment as made. 3. It is doubtful if the profile sheet referred to in the ordinance for the purpose of fixing the grade of Mynatt street is, on its face, sufficiently intelligible for the purpose intended, though doubtless it can be read and understood by a professional engineer. We would not, however, hold that its imperfection would, of itself, be sufficient to invalidate the proceedings, though it is subject to serious criticism for want of perspicuity. 4. Numerous features of the plans, de-' tails, and specifications adopted for the macadam roadway improvements are pointed out as being obscure, incomplete, or insufficient, to such a degree as to invalidate the assessment. While some of these features may be subject to criticism, we do not think that anyi of them is of invalidating consequence, we note, especially, the objection that, while the ordinance prescribes a paving 15 feet in width, the specifications call for a layer of stone, before rolling, 10 feet in width. Such a change as this by the municipal authorities is not beyond their discretionary power in the premises, and would be of weight only in determining the cost and beneficial value of the improvement, though it might invalidate the assessment as for the amount actually charged. Hood v. City of Bessemer, 213 Ala. 225, 104 So. 325 (7) (8). The objection that the location of the paving on the roadway is not specified is without merit, since a paving “fifteen feet wide along the center” of the street plainly means a width of 7% feet on each side of the center line. Under our view of the case, as pointed out above, the trial court did not err in ordering that the assessment against appellee be quashed. But, notwithstanding the defects noted in the proceedings, we are of the opinion that it was incumbent upon the trial court to proceed, under section 2210 of the Code, to hear evidence that the municipality had incurred expense in the making of these improve *671 ments, which was a proper charge against the lot, and, upon satisfactory proof thereof, to render judgment for the amount properly chargeable in that behalf. The practical construction given to this provision of the Code in our former decisions is that those irregularities or defects which are not fundamental are “technical,” within the meaning of’ the statute. By “fundamental defects” we mean thé omission of an appropriate initial ordinance authorizing and declaring the improvement; the omission of notice to the property owner, with opportunity to appear and make objections; and the making of the assessment upon any other basis than the increased value of thé property by reason of the special benefits derived from the improvement. Garner v. City of Anniston, 178 Ala. 430, 435, 436, 59 So. 654; Hood v. City of Bessemer, 213 Ala. 225, 227, 104 So. 325. In the instant case the fundamental requirements were duly observed, and the statute (section 2210) should be applied. The judgment of the circuit court will be affirmed as to the quashal of the assessment, and reversed as to refusing to proceed under the statute, as indicated. ■ Affirmed in part, reversed in part, and remanded. All the Justices concur, except BROWN, J., not sitting.