We have indicated that the paving assessment, under section 223 of the Constitution and statutes, made against appellant's property, contained an illegal item that was separate and severable, and that may be eliminated without destroying the assessment.
The rehearing asks for a declaration by this court as to the right to interest by the municipality for the time preceding the elimination of the illegal item of cost included in the assessment against appellant's said lots.
The case of City of Birmingham v. Collins, 16 Ala. App. 222,77 So. 60, was upon the point. The effect of the decision by this court on certiorari, 201 Ala. 479, 78 So. 385, is adverted to by the respective counsel, and we deem it important and necessary to reexamine that question on this rehearing.
Be it remembered that appellant objected in the trial court, and renews his objections here, to the validity of the proceeding and amounts to be assessed against his said properties. 215 Ala. 300, 110 So. 317. And, on the appeal to this court, was the illegal item of $97.46 eliminated by the decision rendered?
In 44 C. J. 795, §§ 3391-3394, and 1 Page and Jones on Taxation by Assessment, p. 724, § 475, the question of interest on assessments for municipal improvements is adverted to and authorities collected. The effect of statutes authorizing installment payments and interest as a condition of paying in installments, is the subject of section 3420C of 44 C. J. p. 808. And it is said that —
"According to the weight of authority an assessment does not bear interest in the absence of an applicable statute or charter so providing." 44 C. J. 795, § 3391.
It is sufficient to say, the authorities are not unamimous as to the allowance of interest where the original assessment is reduced or changed by reason of the property owner's challenge of correctness or invalidity in the court.
There is a decision to the effect that an illegal item of costs (as fees and expenses of the commissioners who made the assessment) included may be stricken or eliminated by the court, and yet the municipality may have interest on the corrected assessment from date of the original assessment. Mayer v. City of New York, 101 N.Y. 284, 4 N.E. 336. The reason for this decision is stated by the text-writer to be that it was in the nature of "a credit * * * applied to a conceded debt." 1 Page and Jones, p. 724, § 475. Another case declares that, if the assessment was merely irregular, under the statute, reassessment not being necessary, the assessment held to bear interest. Langan v. Bitzer (Ky.) 82 S.W. 280, 26 Ky. Law Rep. 579.
The effect of the decision in Gosnell v. City of Louisville, etc., 104 Ky. 201, 208, 46 S.W. 722, 723, is to illustrate the contrary view and against the allowance of interest. It is declared:
"The apportionment, as we have held, was erroneous; and until corrected by the courts or the council it was impossible for the property holder to ascertain for what amount he was liable. It is manifest, therefore, that it was inequitable to charge the property holder with interest until there was an ascertained liability against him or his property, by the payment of which the lien could be discharged. In Conner v. Clark, 15 Ky. Law Rep. 126, it was held that parties ought not to be held liable for interest until the amount they owe is ascertained with certainty; and in that case, as the amount which the appellants should pay was not ascertained until judgment rendered, it was not error to refuse to adjudge interest against them. And in Boone v. Gleason, 4 Ky. Law Rep. 1001, the Superior Court held that the property holder was liable for neither interest nor costs until the apportionment had been made according to the principles established by law. In this view we concur."
We come then to consider the effect of the statute in this jurisdiction. Section 2216, Code of 1923, in respects here pertinent, comes unchanged from section 1401 of the Code of 1907, and from the Act of 1907, § 134, pp. 858, 859. It is as follows:
"The council, in ordering any local improvement the cost of which, or any part thereof, is to be assessed against the property abutting on any street, avenue, alley, highway, or other public place so improved, or area drained by such sewer, or sewers, may provide that the same shall be paid in cash within thirty days after the final assessment, provided the cost of such improvement does not exceed one thousand dollars, but if the total cost of said improvement is greater than such sum, any property owner may, at his election, to be expressed by notifying the city official charged with the duty of collecting such assessments in writing within thirty days after the assessment is made final, pay the said assessment in ten equal annual installments which shall bear interest at not exceeding eight per cent. per annum, payable annually. * * * The first installment shall be payable within thirty days after the assessment is made final, and all assessments or installments thereof shall be payable at the office of the clerk, tax collector, or treasurer of the city or town, as the council may prescribe, and all assessments or installments thereof shall bear interest at not exceeding eight per cent. per annum after the expiration of thirty days from the date on which the same is made final, which interest shall be due and payable at the time and place the assessment or installment is due and payable."
The entire ordinance contained no provisions as to payment "in cash within thirty days after the final assessment," nor that the same be in assessments of ten equal annual *Page 289 installments which shall bear interest within the provisions of the statute. Section 2216 (1401), Code of 1923.
The subsequent resolution before the contract was awarded recited that several of the property owners (not Stovall) affected by the improvement ordinance "pledging themselves to pay for said work in cash as approved * * * and that the city has made the necessary arrangements to finance a portion of said work included in the ordinance," etc., and the contractor has signified his willingness to do a portion of said work, be it resolved that the character of pavement is selected and the contract authorized to be awarded to said contractor or bidder, which was done, and under which the instant pavement was done and constructed.
The statute under the act of 1907, its codification as section 1401 of the Code of 1907 and section 2216, Code of 1923, uses the words "after the final assessment," "after theassessment is made final," "on the amount of said assessment," the "first installment shall be payable within thirty days after the assessment is made final," and "all assessments or installments thereof shall bear interest at not exceeding eight per cent. per annum after the expiration of thirty days from the date on which the same is made final," with interest"payable at the time and place the assessment or installment isdue and payable." And section 2218, Code of 1923, provides that any property owner may pay the assessment with interest and allcosts, if tendered before a sale of his property (in default), and that prescribed on redemptions is: "Interest thereon at the rate of fifteen per cent. per annum from the date of sale," etc. Section 2221, Code. Such are the statutory provisions for interest on municipal assessments.
We have indicated that the weight of authority is that a "special tax bill" or a municipal assessment will not bear interest in the absence of an applicable statute so providing. Such is the declared rule in California, Himmelman v. Oliver,34 Cal. 246; Haskell v. Bartlett, 34 Cal. 281. Connecticut, Selleck v. French, 1 Conn. 32, 6 Am. Dec. 185; Sargent Co. v. Tuttle, 67 Conn. 162, 34 A. 1028, 32 L.R.A. 822; Walsh v. Barthel, 85 Conn. 552, 556, 84 A. 91; Hartford v. Poindexter,84 Conn. 121, 79 A. 79. Illinois, Murphy v. People, 120 Ill. 234,11 N.E. 202; McChesney v. Chicago, 213 Ill. 592,73 N.E. 368. New Jersey, Brennert v. Farrier, Collector,47 N.J. Law, 75. New York, Matter of Whitlock Ave., 51 App. Div. 436,64 N.Y. S. 717. Texas, Galveston v. Heard, 54 Tex. 420, 447. Washington, Shmuck v. Wheeler, 98 Wn. 535, 167 P. 1126. And in Missouri that court has gone to the extent of declaring, in Coatsworth Lumber Co. v. Owen, 186 Mo. App. 543, 172 S.W. 436, that, where there is statutory authority, in the absence of aprovision for interest in the ordinance for the improvement, or in the "tax bill itself," the same does not bear interest. In Sargent Co. v. Tuttle, 67 Conn. 162, 166, 34 A. 1028, 1029, 32 L.R.A. 822, 823, it is declared of the matter by the Connecticut court, that assessments "upon specific property specially benefited by a local public improvement, for the purpose of paying the expense [thereof], are taxes;" that —
"The second proposition, to the effect that a tax carries no interest, as such, nor by way of penalty for nonpayment, unless the law so provides, is, we also think, a correct statement of the law. Most of the cases in which interest may be recovered, under our law, in the absence of any statute regulating the matter, are enumerated in Selleck v. French, 1 Conn. 32, 6 Am. Dec. 185; and clearly assessments of this kind do not come within any of the classes of cases there enumerated. It will, we think, also be found true that whenever taxes have carried interest, either as such, or by way of penalty it has been by virtue of some statutory provision to that effect. And this is as it should be. At best, a tax is a burden — a necessary one, it is true, but none the less a burden — imposed on the taxpayer without reference to his consent; and it seems reasonable to hold that any increase of that burden, by way of penalty or otherwise, should be expressly made by the power which imposes it, and that, until the legislative will to increase the burden by the addition of interest has been clearly expressed, interest should not be allowed. This conclusion, which on principle seems reasonable, is supported more or less strongly by the following authorities: Camden v. Allen, 26 N.J. Law, 398; Belvidere v. Warren R. Co.,34 N.J. Law, 193; Brennert v. Farrier, 47 N.J. Law, 75; Danforth v. Williams, 9 Mass. 324; Shaw v. Peckett, 26 Vt. 482; Perry v. Washburn, 20 Cal. 318; People v. Gold Stock Teleg. Co.,98 N.Y. 67; Western U. Teleg. Co. v. State, 55 Tex. 314; Cooley, Taxn. 300, note 4."
In City of Hartford v. Poindexter, 84 Conn. 121, 135,79 A. 79, 84, the general rule is thus stated:
"An assessment for benefits carries no interest as such or by way of penalty unless the law so provides. Sargent Co. v. Tuttle, 67 Conn. 162, 167, 34 A. 1028, 32 L.R.A. 822; Hartford v. Mechanics' Savings Bank, 79 Conn. 38, 40,63 A. 658."
The instant ordinance makes no reference to cash or installment payments of the assessment to be made. It was duly resisted by appellant to this court, and only became a "final assessment," or the "assessment is (was) made final" by the decision heretofore rendered by this court, and in which was applied the rule of severability of the illegal item that saved or prevented (under that rule) a reassessment.
The rule or theory of the statute is that where interest was to be allowed, it did not begin to accrue until or within "thirty days after the assessment is made final." The assessment that is final, therefore, was made *Page 290 final by decision here, and the elimination of the illegal item and sum from the assessment and sums thereof, which were legal and due. Until this was done and result declared, appellant was not in default, and no interest had accrued on the assessment, with the illegal item as a part thereof against his property. Before that date an elimination decision or decree was not made final. It was the action of elimination of the illegal item that gave finality to the assessment against appellant and his abutting properties affected thereby. And the judgment against appellant will not bear interest before this date and until after the expiration of 30 days therefrom.
As modified on rehearing, by this extended opinion made necessary by the application and insistencies of the respective counsel the judgment is affirmed as now corrected, and appellee is taxed with the costs.
All the Justices concur, except ANDERSON, C. J., and FOSTER, J., who dissent as to the item of interest.