(1) Under the statute, as well as section 223 of the Constitution, no assessment can be made against the lot of an abutting owner for street improvements, unless the value of the property has been specially enhanced as a result of the improvements. The result is the ascertainment of this fact is essential to the assessment, and if an assessment is made against the property it necessarily involved a finding that the property had been benefited and not damaged.
(2) Regardless of the general doctrine of res judicata as an estoppel, we have in the case at bar a statutory estoppel, which was invoked by the plea of which this petitioner complains. Had this plaintiff expressly consented to the assessment, there could be no question but what he would be bound by same, and could not attack the same in this collateral action for damages. And if the owner had an opportunity to object, and failed
(3) The statute (section 1377) prescribes a notice by publication, and section 1379 relates to the contents of the notice. Section 1378 prescribes a time for hearing objections to the assessment, and section 1381 provides for the method of making objections and defenses, and section 1389 gives the right of appeal to the circuit or any court of like jurisdiction. This is due process, and gives the owner the right to defend as against the assessment, and answers every requirement of state and federal Constitutions. It is true that the statute does not provide for personal notice, but this is not essential.— Decatur v. Brock, 170 Ala. 149, 54 South. 209; City of Birmingham, v. Wills, 178 Ala. 198, 59 South. 173, Ann. Cas. 1915B, 746.
“The phrase, blue process of law,’ in matters of taxation and local assessments, does not necessarily mean a judicial proceeding with the notice and hearing appropriate thereto. The power to tax belongs exclusively to the legislative branch of the government, and when the law provides the mode of confirming or contesting the charge imposed, with such notice to the person as is appropriate to the case, the assessment cannot be said to deprive the owner of his property without due process of law. Hence, in the case of property taxes
As to whether or not notice is essential, when a personal judgment is provided or rendered, is a question with which we are not now concerned, as the statute in question does not authorize a personal judgment. Outside of the question, however, of personal liability, personal service is unnecessary, and a reasonable notice given by publication is sufficient. — Wight v. Davidson, 181 U. S. 371, 21 Sup. Ct. 616, 45 L. Ed. 900.
(4) Nor is the statute in question repugnant to section 235 of the Constitution, as the owner is not deprived of any right guaranteed thereunder. Section 1361 requires an ordinance describing the work, setting forth plans, specifications, etc. Section 1362 provides for the publication of the ordinance, and section 1364 provides for objections by the owner. The owner, therefore, has the right to object to the work, and if he is overruled in this he can enjoin the work, in case it is to- injure his property, until his damages are ascertained and the same is paid. If he does not pursue this course, but suffers the work to be done without protest, he still has an opportunity, under section 1381, to- appear and object to the assessment, with the right of appeal, and if it is ascertained that his property has not been specially benefited, but was damaged, he- can bring an action at
The writ of certiorari is denied, and the judgment of the Court of Appeals is affirmed.
Writ of certiorari denied.