The Birmingham age-herald., 1903-10-24
CITYS ASSESSMENT IS DECLARED VOID Chancellor Carmichael Renders
 an Important Decree WAS ABOUT STORM SEWER Suit In Equity Was Filed By Parties Against Mayor and Aldermen En-
 joining Them From Collect
 Ing Certain Assessments.
VAS ABOUT STORM SEWER


 Chancellor J. c. Carmichael rendered a decree yesterday in the suit In equity filed in the Chancery court several months ago by Mary McNeal, Natalie Phelan and Sarah E. Phelan against the mayor and aldermen of Birmingham seeking to have them enjoined from col- lecting certain assessments for building a sewer near the property Of the com plainants.
 The decree declares the assessment void on the ground that the city faiiei to comply with certain requirements of It's charter in the matter and the sui. was dismissed for want of equity, the costs being charged to the compliments.
 Many Persons Interested.
 The suit attracted considerable atten- ton at the time it was filed by Weakey & Weakley. inasmuch as so many ether citizens were directly interested In the matter. The sewer, for the construction of which the assessments were made is what is known as the Twelfth street and Avenue K sewer The assessment levied against the Phelan heirs, who are the compliments in the suit, amounted to s3, 63974.
 The decree by Chancellor Carmichael is as follows:
 Text of Decree.
 "The bill in this cause, seeks to set aside an assessment upon certain real estate of the complainants made by the mori- | cipal authorities of the city of Eirming- ham for the construction of a storm wa ter sewer, described fully in the bill and the bill seeks further to enjoln reas- sessment of the cost of building said sewer.
 "As I have come to the conclusion that the assessment is void upon ts face for failure of the city to comply with cer- | tain requirements of the city charter, eu- thorizing such assessments, 1t Is unnec- essary to go into any of the other ques- tions presented by the bill
 Failed to Comply.
 "The bill shows that the city failed to comply with the statutory requirement that the well bound book in which it Is provided that all assessments shall be entered, should give the name of the owner of real estate assessed, and if the names were unknown that the assess ment should so state. The book shows that the city engineer or city clerk de- scribed compliments as 'Phelan heirs or Ellis Phelan heirs, or 'Phelan and Me- Neal heirs and in no instance were the names of any of complainants entered as | - tt,a I.1ta of land assessed.
 'The register will enroll this decree This cause coming on to be heard was submitted upon motion to dismiss the bill as amended for want of equity, and the same having been duly considered and understood by the court. the court is of the opinion that said motion Is we'll taken. It is therefore, ordered. adjudged and de- creed that said motion be and the same is hereby granted. It is further ordered, adjudged and decreed that the said bill | of complaint in the cause be and the same is hereby dismissed out of court It is further ordered that the costs of this 1 suit be taken against the complainants for which let execution issue" | It was claimed in the original bill that the assessment was illegal. unconstitu- tionaI, null and void and that it was clouJ upon the title which the complain- ants hold to the lots in the sewer dis trict.
 Further Complaint. / | The complainants further charged flat under the limitations of the constitution of Alabama no municipal corporation had power or authority to make an assessment | to pay the cost of building a storm water sewer for greater sum than the lncreas- ed value of the lots located In the sewer district by reason of the special benefits derived from such improvements. They charged that the lots and lands described as belonging to them had received no | special benefit by the building of the sew er and if they had received any benefit l whatever by the building of the sewer, 1t was general benft shared by all the property and people of the community alike, and was not in any sense special | benefit
 | The prayer was made in the bill that l the assessments made upon the lots and | lands of the complainants be set aside and held for naught and that the defend- ant be forever enjoned and restrained | from collecting and enforcing the same