Miller v. Mayor of Mobile

B. E. SAEEOLD, J. The bill of the appellant was dismissed on the ground of adequate remedy at law. He complained that the appellees, under the authority of the 94th section of the charter of Mobile city, and in pretended compliance with it, ordered a new street to be opened through a lot belonging to him, and appointed a jury to ascertain and assess the damages and benefits to result from it to the adjacent proprietors, without notice to them, and that they determined he would be benefited one hundred and seventy-five dollars. They returned this verdict to the said defendants, who were about to open the street, and collect the above sum of money from him in the manner prescribed by the charter. He alleged that only one of those who made the application owned any land adjacent to the-proposed street, and he owned less than one-fourth. He prayed for an injunction against the opening of the street and the collection of the money. The defendants admitted the truth of the statements in the bill, but denied that they entitled the complainant to the relief sought. Section 94 of the charter authorizes the defendants to make a new street upon the written application of the owners at least one-fourth in quantity of the property through or over which the new street is desired to be made. But it is to be done at the expense of those whose property is benefited by and adjacent to the street. A jury is to ascertain and assess this benefit to each proprietor, and the amount assessed is to be a hen on his said property, and collectible as the taxes on real estate are to be collected [166] under the charter. The charter makes the assessed taxes a judgment, and authorizes a sale of either real or personal property for their payment. — §§ 38, 39. The benefited parties are required to contribute to the expense of the street, although the forms prescribed by the said section 91 may not have been strictly complied with. The request, and the ordinance complying with it, are alone to be deemed essential to create the claim for contribution. I do not know that any definite line of separation can be drawn between the jurisdictions of law and equity in matters of this sort. The general rule is, that -the correction of errors in the proceedings of such inferior jurisdictions is matter of legal cognizance, and probably under our loose system of practice, a certiorari to the circuit court would procure a reversal of what has been done in this case. But there are three recognized exceptions to this rule : 1st, where the proceedings in the subordinate tribunal will necessarily lead to a multiplicity of actions ; 2d, where they lead in their execution to the commission of irreparable injury to the freehold ; 3d, where the claim of the adverse party to the land is valid upon the face of the instrument, or the proceedings sought to be set aside, and extrinsic facts are necessary to be proved in order to establish the invalidity or illegality. This case may properly come within the third exception. A number of citizens signed the application for the opening of the street. It is denied that they were proprietors of one-fourth in quantity of the adjacent lands. This is an extrinsic fact necessary to be proved. It was essential that they should be. The complainant also denies that he was benefited one hundred and seventy-five dollars, and claims that he was injured several hundred dollars. These facts require external proof, while the contrary appears upon the proceedings. Baldwin v. City of Buffalo, 29 Barb. 396, was very similar to this case, and the court reviewed the case of Brooklyn v. Meserole, 26 Wend. 132, in which it was held that an injunction was not the proper remedy, and also the case of Heywood v. City of Buffalo, 14 New York Reports, [167] 534, tbe principles ‘ of which it adopted. While it is entirely proper to preserve the two systems of jurisprudence distinct, it is impossible to keep them from trenching upon each other, and justice and the reasonable satisfaction of the people are more to be desired. Section 94 of the charter violates Article XIII, § 5, of the State Constitution, which prohibits any appropriation of a right of way to the use of a corporation until full compensation be first made in money, or secured by a deposit of money, to the owner, irrespective of any benefit from any improvement proposed by such corporation, the compensation to be ascertained by a jury of twelve men in a court of record. The decree is reversed, and a decree will be rendered in this court granting the relief prayed for.