Town of Leeds v. Cason

*445 BOULDIN, J.

The suit is in assumpsit, by a municipal corporation, to recover tbe cost of installing a sanitary toilet on private property, upon failure of the owner so to do, as provided by ordinance enacted pursuant to Code, § 2051.

Tbe sole question presented is whether an action of assumpsit may be maintained; tbe city having failed to comply with tbe provisions of tbe statute necessary to the enforcement of a lien on tbe property.

Tbe statute provides that in such case tbe city may install tbe closet “at the expense of tbe owner, tbe cost thereof tó be a lien upon tbe property in favor of tbe city or town, to be collected as other debts are collected or liens enforced.”

This clearly imports a personal liability on tbe owner for tbe expense. This is tbe debt to be collected as other debts — by an action of assumpsit. In fact, tbe primary duty to install tbe closet is placed on tbe owner, and, upon bis failure, tbe city is empowered to do so at his expense.

Tbe statute differs in terms and in purpose from local assessments for street and sidewalk improvements. Decisions bolding such assessment a charge on the property only by proceedings in rem are not in point.

Tbe statute in band is more analogous to Code, § 2189, relating to assessment of street car companies for paving, which we have declared imposes a personal liability. Alabama Traction Co. v. Selma Trust & Savings Bank, 213 Ala. 269 , 104 So. 517 .

We should, say, however, tbe statute before us is an exercise of the police power in tbe conservation of tbe public health rather than tbe taxing power, as in case of local assessments for betterments to tbe property.

Tbe provision for a lien upon tbe property is merely cumulative security. Tbe enforcement of such lien, as well as of tbe personal obligation of tbe owner, is left to procedure under general law. Greil v. City of Montgomery, 182 Ala. 291 , 62 So. 692 , Ann. Cas. 1915D, 738.

It is suggested tbe ordinance does not contain a provision for collection of tbe debt by personal action. Like tbe statute, it does provide (section 15) that tbe cost shall be borne by tbe owner (or agent) of tbe property, and provides (section 16) that such cost be assessed against, and become a lien on, tbe property in accordance with law! Tbe statute is in effect written into the ordinance, and determines tbe remedies for enforcement.

Tbe judgment of tbe court below is reversed. Upon tbe agreed statement of facts, tbe plaintiff was due to recover, and a judgment is here rendered in favor of appellee for tbe agreed expense of installing the closet, $29.15, with interest thereon from May 1, 1922, $13.67, an aggregate of $42.82, together with tbe costs of appeal; and costs accrued in the circuit court and in tbe justice court.

Reversed and rendered.

ANDERSON, O. J., and SAYRE and BROWN, JJ., concur.