City of Birmingham v. Abernathy

SAYRE, J. This case differs from that shown in Birmingham v. Wills, infra, 59 South. 173, in this only: [225] In the body of the initial ordinance adopted by the town of West End in this case, the street upon which the improvement was to be made was not named nor was there any designation of the terminal points of the improvement. However, the caption of the ordinance showed that First avenue was to be paved from Almons street to Green street. Section 1379 of the Code requires that the notice of hearing for final assessment “shall state the general character of the improvement, the terminal points thereof, and streets, avenues, alleys, or other highways or portions thereof along which the .improvement has been constructed.” On the authority of Birmingham v. Wills, supra, the presumption must be indulged, nothing being said to the contrary in complainant’s bill, that the notice of hearing for final assessment conveyed to complainant information that an assessment would be levied against her property for its lawful share of the cost of the improvement. By her failure to appear then and there to contest the assessment and the validity of the preliminary proceedings she is now estopped by force of the statute made to that end. We said in Garner v. City of Anniston, 2 Ala. App. 389, 56 South. 874, that there must appear in any case of this character an initial ordinance of such sort as to show that the improvement is undertaken under the administrative business authority conferred by the statute on the municipal council or board. Certain adjudicated cases are cited as holding that, where no statute requires municipal ordinances to be entitled, a title is unnecessary and must be treated as mere surplusage. They do not hold exactly that. — Ex parte Haskell, 112 Cal. 412, 44.Pac. 725, 32 L. R. A. 527, and City of Tarkio v. Cook, 120 Mo. 1, 25 S. W. 202, 41 Am. St. Rep. 678, hold that the [226] constitutional provision requiring that each law shall contain but one subject, which shall be clearly expressed in its title, was intended for the control of the Legislature in the enactment of laws, and has no application to municipal ordinances. In Ex parte Young, 154 Cal. 317, 97 Pac. 822, 22 L. R. A. (N. S.) 330, Ex parte Yung, 7 Cal. App. 440, 94 Pac. 594, the ruling was that a recital in the title of a county ordinance that it was adopted according to an act providing for the adoption of ordinances by popular vote, said act having been declared unconstitutional and void by the Supreme Court of California, did not avoid the ordinance which had in fact been adopted by the board of supervisors in pursuance of its authority under statute. In this last-mentioned case it was said that the recital must be treated as surplusage. We find nothing-in these cases to shake the opinion we entertain which is that, whatever effect might have been given to the alleged defect on proper objection, or whatever may be the consequence of so framing a criminal or quasi criminal ordinance, still the ordiance in question was sufficient to evidence' the fact that the improvement of the street named in the title, within the limits there designated, would be undertaken by the city council under the authority vested in it by law, and was therefore not wholly ineffectual. Under the statute no ordinance was necessary. The improvement might have been lawfully put on foot by a resolution, in which case no such question as this could have arisen. Following our previous rulings, we hold that the general demurrer to the bill for want of equity should have been sustained. Reversed and remanded. All the Justices concur, except Dowdell, C. J., not sitting.