While the statute, Chapter 9298, Acts of 1923, provides that the authorized special assessments "shall constitute a fund for the payment of the principal and interest of the bonds," it also makes the bonds duly issued under the act "general obligations of the municipality," and expressly provides that "in the event there be a failure to collect and receive the said special assessments in season to pay the principal and interest of said bonds, the municipality shall levy and collect on all taxable property in said municipality a tax sufficient to pay such principal and interest as the same respectively become due and payable."
The alternative writ alleges that the government authority of the municipality "have failed to collect the special *Page 640 assessments and constitute said assessments as a special fund for the payment of" the bonds in controversy, and have failed to levy and collect taxes for paying the bonds, and have not paid the "bonds, or interest thereon, since January 1, 1929." These allegations are by the motion to quash, admitted to be true. There having been "a failure to collect and receive the said special assessments in season to pay the" bonds, the statute provides that "the municipality shall levy and collect" a tax to pay the bonds. This statutory duty may be enforced by mandamus in the absence of another appropriate and adequate remedy, if the statutory provision is not invalid. The obligation of the municipality under the statute, is direct and general to pay the bonds duly issued for the street improvements considered as an entire project, and the tax levy has reference to such improvements as a municipal purpose, considered as a whole and not with reference to property specially assessed for benefits to its value or use. The mere failure to collect special assessments, which necessitates a tax levy, does not unlawfully impose double taxation on those who pay their special assessments, since every piece of property specially assessed is liable for the amount legally assessed against it and such liability may be enforced. Inadequacy in value of property assessed to pay the assessment levied against it when it is sought to be enforced, does not render the statute invalid or unlawfully impose double taxation. Special assessments have reference to special benefits in added value to particular pieces of property, while municipal taxation has reference to municipal purposes that are beneficial to the municipality as a whole. The street improvements are beneficial generally to the city as well as specially to the owners of property that is specially assessed. Taxes are levied for one and special assessments for the other. *Page 641
No question is presented here of the liability of the "abutting, adjoining, contiguous, or other specially benefitted property" or its owners, to the city for special assessments legally levied "in proportion to the benefits to be derived" from the street improvements. Nor is any question presented as to the rights of owners of specially benefited property who may have paid the special assessments when others have not paid. The properties are severally liable for valid assessments against them; and if the amounts levied upon the several pieces of property cannot be realized by subjecting the property to the lien of the special assessments, the law is not responsible therefor.
There may be cases where the entire proper cost of a street improvement may legally be assessed against "abutting, adjoining, contiguous or other specially benefited property," "in proportion to the benefits to be derived therefrom," therefore the statutory provision authorizing such special assessments does not violate organic law. Whether the constitution is violated by erroneously applying the statute in making assessments "for the payment of all or any part of the cost of any such street improvement," may be determined in appropriate proceedings in each case as it arises. In providing for the levy and collection of special assessments to "constitute a fund for the payment" of the bonds authorized to be issued for street improvements, with an alternative provision that upon "failure" to collect the special assessment "in season to pay the" bonds, "the municipality shall levy and collect on all taxable property in said municipality a tax sufficient to pay" the bonds as they "become due and payable," the statute does not illegally impose double taxation upon property that is specially assessed for benefits derived from *Page 642 street improvements. When special assessments are collected their proper application may be enforced.
The alternative writ alleges "a failure to collect" "special assessments in season to pay the" bonds held by the relator that are by the statute expressly made "general obligations of the municipality," and consequently shows a duty of the governing authority of the municipality under the express terms of the statute, to levy a tax to pay the bonds of the municipality issued under the statute; and the alternative writ also shows a right in the relator to have the statutory duty enforced by mandamus, the pertinent statutory provisions not being shown to be invalid and an unlawful application of the statute not appearing.
TERRELL, C. J., and ELLIS, STRUM, BROWN and BUFORD, J. J., concur.
