Alford v. City of Dallas

• Decision Date: 29 April 1896
• Citation: 35 S.W. 816
• Parties: ALFORD et al. v. CITY OF DALLAS.
• Court: Texas Court of Appeals

35 S.W. 816

ALFORD et al. v. CITY OF DALLAS.

Court of Civil Appeals of Texas.

April 29, 1896.

Appeal from district court, Dallas county; R. E. Burke, Judge.

Suit by George F. Alford and others against the city of Dallas. Judgment for defendant. Plaintiffs appeal. Reversed.

L. McLaurin and John Bookhout, for appellants. A. P. Wozencraft, for appellee.

FLY, J.

This suit was instituted by George F. Alford and 35 other parties, on February 2, 1892, to restrain the collection of taxes by the city of Dallas for the macadamizing and curbing of South Ervay street, in said city. The clause of the charter permitting the city to pave and macadamize its streets was set out in the petition, and it was alleged that no resolution or ordinance was passed by the city council ordering the work done on South Ervay street, but that, disregarding this requirement of the charter, a contract had been entered into with one Nolty for macadamizing, curbing, and guttering South Ervay street from Gano street to Grand avenue; that, while the city council was authorized to advertise for bids for macadamizing, no authority was given for advertising for bids to do the guttering and curbing on said street; that, at the time the advertisement was made, no plans and specifications had been adopted by resolution as the law directed, and the advertisement did not set out the plans and specifications for the work. There were several other grounds alleged for an injunction, and an interlocutory writ was granted. The cause was tried by a jury, only one issue being submitted; and, upon the finding on this issue, judgment was rendered for appellee.

There was no error in overruling the general demurrer to the answer of appellee. It was alleged in the answer that there were no irregularities whatever in the proceedings precedent to the work done on the street, but that they were in strict conformance to the requirements of the charter.

The second assignment presents error in the action of the court "in overruling the special exceptions two, three, four, five, six, seven, and eight, set forth in plaintiffs' first supplemental petition, filed herein on the 16th of February, 1894, for the reasons set forth in said exceptions." Under repeated decisions of appellate courts of this state, the assignment in question cannot be considered. Jackson v. Cassidy, 68 Tex. 283, 4 S. W. 541; Keowne v. Love, 65 Tex. 155; Cooper v. Langway, 76 Tex. 124, 13 S. W. 179; Paschal v. Owen, 77 Tex. 585, 14 S. W. 203.

The fourth assignment attacks that part of the answer which alleges that the action of the city council previous to the letting of the contract was equivalent to the passage of a resolution authorizing the work. No such allegation appears in the answer; the nearest approach to it being the first exception to the petition, which claims that the petition was insufficient because it showed that the action of the council amounted to the passage of a resolution. The proceedings of the city council were had under the charter granted by the legislature to the city of Dallas on 13th of March, 1889. In that charter it is provided: "The city council shall have full power and authority to grade, fill, raise, repair, macadamize, remacadamize, pave, re-pave or otherwise improve any avenue, street or alley, or any portion thereof, in the city, to such extent and out of such material and under such regulations as said city council may provide whenever a majority of the aldermen present vote in favor of such improvement. All grading of streets and sidewalks shall be at the cost of the city, unless herein otherwise provided. The word `repairing' as here used shall apply only to small or ordinary defects in streets that have been put to grade and paved or macadamized. All other of such improvements shall be entirely at the cost of the fronting or abutting property owners on each street so improved, who shall pay pro rata such entire cost according to the number of front or abutting feet respectively owned by them on such street; provided that when any person, corporation or company owns or operates any street railroad, or railroad of any kind, on such street, avenue or alley, such person, corporation or company shall pay for paving or otherwise improving that part of the street between the rails of such road, and the owners of fronting property shall be relieved of their pro rata of such sum so paid by such roads. The city shall, out of the general fund, pay for all street intersections so improved, except that portion occupied or used by said railroads, which must be paid as above provided by the owners or operators thereof. The pro rata share of the cost of such improvements due from the property owners and said railroads as above provided, together with the expense of collecting the same, shall be a special tax and lien against the lot or blocks fronting or abutting upon the street improved, and against the roadbed, ties, rails, fixtures, rights and franchises of such street or other railroads that may be operated thereon. The city council shall, by resolution duly passed, designate the street or streets, avenues or alleys, or portions thereof to be improved, the nature of the improvements to be made and the material to be used. Whenever the city council shall so determine upon such improvement they shall advertise for bids, giving the plans, specifications and the extent of the improvements. The work shall be let to the lowest responsible bidder in the discretion of the council, and with such bonds as the council may require. Said council shall levy a special tax on the property fronting or abutting on the streets so improved for the pro rata amounts due from the property owners, and when street or other railways are operated on said street the council shall levy a special tax upon the road-bed, ties, rails, fixtures, rights and franchises of such road for the pro rata share due from them for improving the space between the rails of such roads. Said tax shall be levied after contract has been let, shall become due and delinquent as the ordinance...