(Dissenting.) — The plaintiff rests his right to recover damages on the provisions of section 235 of the Constitution, and defendant’s plea A undertakes to set up as a defense to this action an estoppel resulting from the provisions of section 1381 of the Code; the substance of the.plea being that the city authorities of Huntsville, proceeding under the provisions of chapter 32, art. 26, of the Code, authorizing cities and towns tO' make internal improvements and to levy and assess the costs thereof against private property, constructed a sidewalk in front of plaintiff’s property, and, in apportioning the assessment thereof, made an assessment against plaintiff’s lot abutting said sidewalk amounting to $37.80, and gave the statutory notice that a roll had been made up and was open to inspection, and that, after the expiration of 20 days, the city council- would hear objections to such assessments; and, no objection having been filed, the assessment was made final by the city council, and therefore plaintiff is forever precluded from asserting that his property was damaged by said improvement. The trial court sustained a demurrer to this plea, and this ruling of the. court presents the only question of vital importance on this appeal.
When the nature of the estoppel here sought to- be set up, and the scope of the issues embraced in the proceedings before the city council, are understood, it is clear that the matter set up in this plea is not a defense to plaintiff’s action. The theory of the appellant is that the proceedings before the city council are res judicata and preclude any further inquiry into the question as *599to whether or not the plaintiff’s property was damaged by the construction of the sidewalk, that question being necessarily determined by the action of the city council resulting in the assessment made — in other words, that no assessment at all could be made unless, as a result of the work, a general benefit resulted and the value of the property was enhanced, or at least no depreciation in value was occasioned thereby. This contention shows a misapprehension of the nature of the estoppel afforded by the provisions of section 1381 of the Code, and of the questions determined by the city council.
The reasons upon which the doctrine of res judicata rests presuppose that the matter to which it is applied has been determined between the same parties by a court of competent jurisdiction — a court created by the Constitution or by the Legislature with jurisdiction of the subject-matter, and with power to determine the entire controversy and award to the parties such relief as under the law they are entitled to (Black on Judgments, 675; Tabor, et al. v. The Cerro Cordo [D. C.] 54 Fed. 395; Burke v. McDonald, 2 Idaho [Hasb.] 339, 13 Pac. 351, 360; In re Norton, 64 Kan. 842, 68 Pac. 639, 91 Am. St. Rep. 255; 2 Words and Phrases, 1360; Cooley on Const. Lims. [7th Ed.] 79-84)—that such court was presided over by a judge free from personal interest in the controversy and legally indifferent between the parties (Ex parte Cornwell, 144 Ala. 498, 39 South. 354; Gill v. State, 61 Ala. 172; Freeman on Judgments, § 145) ; and that the matter involved in the two suits is the same, and the issues in the former suit were broad' enough to comprehend all the issues involved in the second suit (Wood v. Wood, 134 Ala. 557, 33 South. 347; Gilbreath v. Jones, 66 Ala. 132). However, if the issues in the first case are not broad enough to cover the *600controversy in the second suit, or if that controversy is not necessarily included in the first suit, a party is not concluded by the judgment as to matters not embraced within the issues.—Davis v. Davis, 65 Miss. 498, 4 South. 554; Doonan v. Glynn, 28 W. Va. 715; Lorillard v. Clyde, 99 N. Y. 196, 1 N. E. 614; Black on Judgments, § 675. If the second action involved the same property and more, the judgment is conclusive only as to those issues which were actually tried and determined in the first suit.—Foye v. Patch, 132 Mass. 105.
Applying these well-settled principles to the facts of this case, it is apparent that the matter set up here as an estoppel does not measure up to these requirements. The statute provides: “In case of sidewalk improvements, including curbing, the costs, or any part thereof, or the improvement of the street or avenue corner, may be assessed against the lots abutting on or nearest said improvement, and the entire cost or any part thereof of the improvement at the intersection of any alley with a street or avehue, or other highway, may be assessed in fair proportion against the respective lots or parcels of land abutting or cornering on the alley at such intersection; provided, however, that in no case shall the assessment against any .lot- or parcel of land be greater than the increased value of such lots or parcels of land by reason of the special benefits to1 be derived from such improvement.” — Code 1907, § 1373.
It thus appears that the authority of the city- board is limited to assessing the costs of the entire improvement and apportioning the same against the respective lots or parcels of land abutting or cornering on the street, with the limitation that in no case shall the assessment against any lot or parcel of land be greater than the increased value of such lot or parcel of land by reason of the special benefits to be derived from such improve*601ment, and to détermining whether errors or omissions have intervened. It has no1 authority to pass upon the question of general detriment to the property, or to compel just compensation to be made, or to award damages for injury suffered by the property owner as a result of the improvement; and if the proceedings of the board are to be treated as res judicata, and preclude further inqury into such matters, the result necessarily follows that the property owner must be subjected to a course of litigation, attended with costs and annoyance, at the end ■ of which, if successful, he is awarded no relief except that he has a right to begin the litigation again and fight it out in a different suit before a court of competent jurisdiction. In addition to this, the supposed court of original jurisdicton, before whom he must first litigate, is constituted of the parties representing an adverse personal interest to the property owner, possessed of all the infirmities of human nature, which “at best is Aveak,” and incapable of maintaining perfect equipoise in administering justice between the parties.—Ex parte Cornwell, 144 Ala. 499, 39 South. 354. Such a tribunal cannot measure up to the requirements of the law as a court of competent jurisdiction.—City of Huntsville v. Pulley, 187 Ala. 367, 65 South. 407.
An epitome of the provisions of the statute regulating the proceedings may be found in the opinion of the court in the case of City of Birmingham v. Wills, 178 Ala. 204-206, 59 South. 173, Avhich is referred to as a basis for the conclusions hereafter stated in connection Ayith the observation that the statute, after providing for the assessment roll and the publication of notice, the contents of which are prescribed by the statute in substance: That the assessment roll has been delivered to the city or toAvn council, and is open for inspection in the office of the person authorized to make collections *602of the assessments, giving the time and place not less than 20 days from the date of publication at which the city board will meet to hear and determine objections or defenses to such assessment or the amount thereof, the notice to state the general character of the improvement, the terminal points thereof, and the streets, avenues, and alleys or other highways or portions thereof along which the improvements have been constructed, and if the improvements made consist of sanitary or storm water sewers system, the notice shall describe the territory or area drained by such sewer or sewers by naming the streets, avenues, and alleys or the highway or other lines by which such district is bounded. Section 1381 provides: “The owners of any real estate or and interest therein, which it is proposed to- assess for the cost, or any part thereof, of said improvement, may appear at any time on or before the date named in said notice, or at said meeting, and file in writing with the clerk or in his office any objections or defense to the proposed assessment against said property, or to the amount thereof, and persons who' do not file objections in writing or protests against such assessment shall be held to have consented to the same.”
Which is followed by section 1384, which provides: “At such meeting or any adjourned meeting the council shall proceed by order or resolution to fix the amount of the assessment against each lot or tract of land de scribed and included in said assessment roll, and all such assessments, from the date of such order or resolution, shall be and constitute a lien on the respective lots or parcels of land upon which they are levied superior to all other liens, except those of the state or county for taxes.”
It is clear from these statutory provisions, in the absence of objection or defense interposed by the property *603owner, that the proceedings authorized by the statute are purely in rem, and that no personal judgment is authorized or could be rendered against the property owner. And, furthermore, it is clear that, in the absence of objection or defense interposed by the property owner, the assessment is to be made by the city board as a matter of course, and that the sole purpose of the provision of the statute that “the assessment shall not exceed the increased value of such property by reason of the special benefits derived from such improvement” was to maintain its constitutional integrity and bring it in harmony with section 223 of the Constitution, which fixes a limitation upon such assessments and affords a defense to the property owner against them, which he may interpose or waive by his failure to appear. The statute does not make the property owner a party and provides no machinery for that purpose further than that it affords him an opportunity to voluntarily appear and interpose objections as a predicate for a defense which the statute contemplates he must make in the circuit court on appeal from the resolution of the city board fixing the assessment against the property, and that defense is limited to two questions: (1) “Whether errors or omissions, not waived by a failure to object before the council or municipal hoard, have intervened, and, if so, with what effect.” And (2) “Whether the assessment exceeds the special benefits derived by the property from the improvement.”—Garner v. City of Anniston, 178 Ala. 345, 436, 59 South. 654.
These defenses are not available in the absence of objection on the part of the property owner, and are not within the issues determined by the city board.
The defendant’s plea A does not aver that the plaintiff was a party, or in privity with any one who was a party, to the proceedings before the city board, and *604shows that there was no issue presented in that proceeding that determined the issues presented by the plaintiff’s complaint in this case, and therefore the matter set up in the plea is not res adjudicata of the issues in this case.—Holland v. Fairbanks-Morse Co., 166 Ala. 198, 51 South. 931; Durant v. Abendroth, 97 N. Y. 132; Phillips v. Thompson, 3 Stew. & P. 369; Schroeder v. Lahrman, 26 Minn. 87, 1 N. W. 801. The proceeding-under the statute is strictly ex parte and in rem in the absence of an appearance by the property owner, and the interposition by him of the statutory defense, which includes the limitation fixed by the Constitution, and the assessment is conclusive only of the fact that it has been made and the legal consequences that follow, to wit, the fixing of a lien upon the specific property which can be enforced for the collection of the assessment, and, if this lien is enforced and the property sold thereunder, would have effect to determine irrevocably the status of the title against all persons, irrespective of whether they had any other than the constructive notice of the litigation, or whether they were parties in fact or not.—24 Am. & Eng. Ency. Law, 827-829; Id. 755; 4 Mayf. Dig. 919, § 42; Lyon v. Hunt, 11 Ala. 313, 46 Am. Dec. 216; Durant v. Abendroth, supra. As expressed in the opinion of the court in the case last cited: “Judgments in rem are conclusive only as to the property involved, and may be controverted as to all the grounds and incidental facts on which they profess to be founded.—Vendenheuval v. United Ins. Co., 2 Johns. Cas. (N. Y.) 451, 1 Am. Dec. 180. So the judgment, even of a neighboring state, on foreign attachment, if the defendant has not appeared and litigated, is treated as a proceeding in rem and- not personally binding on the party, as a decree or judgment in personam. It only binds the property seized or attached in the suit.”
*605As said by the Supreme Court: “It has been settled, since the leading decision of Pennoyer v. Neff, 95 U. S. 714, 24 L. E. 565, was pronounced, that a personal judgment or decree rendered in a cause against a nonresident upon whom no personal service therein was had is void, and, of course, unenforceable in any manner.”—Sweeney et al. v. Tritsch, 151 Ala. 245, 44 South. 184.
The case of Holland v. Fairbanks-Morse Co. supra, is an apt illustration of the rule that a judgment in rem cannot be set up as res adjudicata of matters on which that judgment is founded in an action in personam ; and, although the plea showed that the plaintiff was the owner of the property in the libel suit and appeared and defended in the libel suit, in disposing of that plea, said: “The third plea does not set up a judgment that would be binding on this plaintiff so as to preclude it from recovering a judgment against the present defendant. It does not aver or show that these defendants were privies or parties to the former suit. It shows that the action was against the boat, and not against the present defendants; and while they may have defended the suit against the boat, and the issue here involved may have been litigated, there is no averment in the plea that the adjudication of same could be binding on the parties to the present cause. It is true, the plea avers that the issues here involved were those involved in the former suit, and which might include the defendant’s personal liability; yet a decision ■of this question in a suit between this plaintiff and the boat could have no binding effect upon these defendants, who were not parties thereto-, and who merely defended the suit for the boat. There is nothing in the plea to indicate that a personal judgment could have been rendered for or against these defendants in the former suit.”
*606The estoppel here set up, however, is not one founded on the doctrine of res judicata, but is what might be termed “statutory estoppel,” or “estoppel by statute.” In discussing the proceedings afforded bjr the statute, and the result of the failure of a property owner to appear before the municipal board and make objections in response to the statutory notice, the Supreme Court says: “In the view we have taken of our statute and the proceeding involved in this case, we have not found it necessary to draw any such distinction in respect to the defects alleged in the bill, for we have placed our judgment upon complainant’s failure after due notice to object, when and where he had opportunity, as a statutory estoppel to now complain in the manner and form adopted in the filing of this bill; such estoppel having been declared by the Legislature in the due exercise of its constitutional power to enact laws.”—City of B’ham v. Wills, 178 Ala. 208, 59 South. 1732.
The extent of the estoppel is clearly defined by the statute the provisions of which are as follows, “And persons who do not file objections in writing or protest against such assessment shall be held to have consented to the same” — clearly importing an intention on the part of the Legislature to estop the property owner from disputing the validity of the proceedings leading up to the assessment, • or the legality of the assessment —and this is the full extent to which the decision of the Supreme Court has carried this estoppel.—City of Birmingham v. Wills, 178 Ala. 198, 59 South. 173; City of Birmingham v. Abernathy, 178 Ala. 221, 59 South. 180; Garner v. City of Anniston, 178 Ala. 430, 59 South. 654.
It is clear that the sole and only purpose of the Legislature by the provisions of section 1381 of the Code was to cut off inquiry on the part of the property own*607er in so far as it affected the right of the municipality to collect the assessment made hy the municipal hoard, and place the property owner in the same category as if he had actually consented to the assessment. That such express consent would not bar the plaintiff’s right to recover damages in this case is clearly shown by the utterances of the Supreme Court as follows: “Whatever may be the law elsewhere, it is too well settled in this state for further controversy That, under constitutional guaranties, a municipal corporation may not take or injure the property of a citizen in the exercise of its power to improve its highways without first making compensation; and the right to injunctive relief in such a case as this exists without reference to the solvency or insolvency of the municipality and regardless of the consideration that he might recover full compensatoi'y damages in an action at law.’—City Council of Montgomery v. Lemle, 121 Ala. 609, 25 South. 919; Avondale v. McFarland, 101 Ala. 381, 13 South. 504; Niehaus v. Cooke, 134 Ala. 223, 32 South. 728. We have therefore no doubt of the equity of the bill, unless its equity is destroyed by the allegations it contains respecting the petition by defendant and other citizens to the city council, wherein they requested the paving of Second avenue in front of complainant’s property, and preparatory to which the change of grade' and other wox*k complained of had been ordered. We are not of opinion that the petition merely to pave the avenue would be a waiver of damages growing out of the change in the grade of the highway, as set forth in the bill; such waiver of a constitutional right ought not to be lightly inferred, and cannot be clearly derived from the request to pave the avenue and the agreement to1 bear a part of the expenses of the paving.—Newville Road Case, 8 Watts (Pa.) 172; Barker v. City of Taunton, *608119 Mass. 392; Birdseye v. City of Clyde, 61 Ohio St. 27, 55 N. E. 169; Jones v. Borough of Bangor, 144 Pa. 638, 23 Atl. 252.” Town of New Decatur v. Scharfenberg, 147 Ala. 370, 371, 41 South. 1025, 1026, 119 Am. St. Rep. 81.
As was said by Judge Cooley, in discussing this subject: “The technical doctrine of estoppel is one to be applied with great caution, for it sets aside general rules on supposed equities, and the danger is always imminent that wrong may b.e done. The following decisions have been made. One who petitions for an improvement is not estopped from denying the validity of the assessment therefor on the ground that the statute was not complied with in making the improvements. One is not estopped from seeking restraint of a street assessment by the fact that he has before paid a similar assessment. The mere fact' that one knows that work is doing for which an unconstitutional tax is to be laid wttll not estop him from objecting after the work is done, etc.” —2 Cooley on Taaxtion (3d Ed.) 1518, 1519.
To carry the estoppel afforded by the statute to the extent that it precludes the plaintiff from recovering damages in this case would make it offensive to section 235 of the Constitution, which provides, “Municipal and other corporations and individuals invested with the privilege of taking property for public use, shall malee just compensation, to be ascertained as may be provided by law, for the property taken, injured, or destroyed by the construction or enlargement of its works, highways, or improvements,” etc., and would thereby destroy the constitutional integrity of the statute, and, in consequence the efficacy of the proceeding before the municipal board as a barrier to plaintiff’s right of recovery.
*609There is nothing in the case of Birmingham v. Wagenseler, 168 Ala. 344, 5) South. 289, that in any-way militates against the conclusions above stated. The proceedings brought in question in that case were under a different statute (the legislative charter of the city of Birmingham), which in effect provided that no assessment could he made where there was general detriment to the property — a provision entirely different from that which is contained in the present statute applicable here. As a matter of fact, that decision is in accord with the conclusion stated above. The construction placed on the charter of the city of Birmingham, there involved, was necessary in order to preserve its constitutional integrity, for otherwise it would have been in conflict with the provisions of the Constitution above quoted. Therefore I entertain the opinion that the trial court properly sustained the demurrer to defendant’s plea A, and that the judgment should be affirmed.