Ardrey v. City of Dallas

• Decision Date: 22 April 1896
• Citation: 35 S.W. 726
• Parties: ARDREY et al. v. CITY OF DALLAS et al.
• Court: Texas Court of Appeals

35 S.W. 726

ARDREY et al. v. CITY OF DALLAS et al.

Court of Civil Appeals of Texas.

April 22, 1896.

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

Action in equity by A. C. Ardrey and others against the city of Dallas and another to enjoin the sale of property for nonpayment of a special tax. From the decree, plaintiffs appeal. Reversed.

Leake, Henry & Reeves, for appellants. A. P. Wozencraft, for appellee.

NEILL, J.

This suit was brought by appellants, A. C. Ardrey and 34 others, against the city of Dallas and J. C. Bogel, its tax collector, to enjoin the sale of their property, fronting on Akard street, in said city, upon the ground that the ordinance of May 7th, hereinafter copied, levying a tax upon their property for local improvements, is void because of the failure of the city to comply with the provisions of its charter prescribing the manner in which such local improvements should be made, and the taxes therefor assessed, levied, and collected. A temporary writ of injunction was granted. The city interposed general and special exceptions, which being overruled, it answered by a general denial and special denials, and alleged that by reason of plaintiffs' petitioning the council to improve the street, promising in their petition to pay their pro rata part of the expense, the petition having been granted, and improvement made in accordance therewith, with their full knowledge, which enhanced the value of their property against which the tax is assessed,—they are estopped from objecting to the plans and specifications by which the improvements were made, or to any matter preliminary to letting the contract, or any irregularity occurring either prior to the letting of their contract, or subsequent thereto, and by admitting that the special tax was assessed according to the charter of 1889, and averred that, as the contract was outstanding, the tax, under the provisions of the amended charter, was properly assessed in accordance therewith. The city asked the court, should it find that any portion of the tax was not justly due, to determine what portion is justly due, and to enter an order granting the prayer in plaintiffs' petition only upon condition that they should, within a time to be fixed by the court, pay into court the sum so found due, and that if the court should hold that the tax should have been levied according to the terms and provisions of the old charter (1885), then that the court decree the plaintiffs to pay into court the amounts of money that would be due if levied according to the provisions of the old charter, and refuse to grant their prayer to perpetuate the injunction unless they should pay the money into court, or to the defendants, within a time to be fixed in the decree. Attached to the answer is a tabulated statement showing the amount of the tax that would be against the property of plaintiffs, respectively, if levied according to the provisions of the old charter. The cause was tried without a jury, and the court decreed that the injunction should be granted, provided the plaintiffs do equity, by paying to the city of Dallas the just and lawful amount of taxes assessed against their property for the improvement of Akard street, which "just and lawful amount" the court found, and entered in its decree the respective sums found against each party, opposite his name, stating that such sums would have been the amount of taxes assessed against the properties of said respective plaintiffs if the same had been levied and assessed according to the provisions of the city charter of the city of Dallas at the time of entering into the contract for the improvement of Akard street. It then decreed that if the respective plaintiffs should pay to the city of Dallas, or should pay into court for the benefit of said city, the respective sums, within 20 days from and after the rendition of judgment, the injunction theretofore granted should be perpetuated, but that if plaintiffs, or any of them, should refuse or fail to pay to the city of Dallas, or into court for its benefit, within 20 days, the sums in the judgment assessed against them, the injunction, as to such plaintiffs so failing or refusing to pay the amounts, should be dissolved. From this judgment the plaintiffs have appealed, and the following are the charter provisions, ordinances, and facts applicable to the case as it is presented to us:

Section 15 of the charter of the city of Dallas (1885) provides: "That the city council shall have power by ordinance to cause to be graded, macadamized, graveled or otherwise constructed, improved or repaired, all streets, sidewalks, alleys and public highways including cross streets in the city limits at such times, to such an extent and out of such material, and under such regulations as the city council may provide by ordinance. The owners of property fronting or abutting on any street shall pay pro rata the costs of two thirds of such improvement, according to the number of front or abutting feet; and the city shall pay the other third. * * * The improvement of intersections and abutments of other streets shall be paid by the city," etc. "Whenever the city council determine, by ordinance, that such work shall be done, and the manner and extent of the same, they shall advertise for bids, giving the plans and specifications and extent of the improvements. The work shall be let to the lowest responsible bidder in the discretion of the city council, and with such bond as the council may determine. Said council shall levy a special tax on the property fronting or abutting on said street so improved pro rata, according to the number of feet of front or abutment. * * * Said tax shall be levied after said contract is let, and the time of payment of the same, and when it shall become delinquent shall be specified by ordinance. Said tax shall be used for the payment of such improvement, shall be a lien from the time of levy, and shall be enforced as the collection of other taxes by advertisement and sale of the property * * * levied upon; provided it shall not be necessary to sell at the same time as for other delinquent ad valorem taxes." Section 175 of same charter: "That the cost of all work on any sidewalk, including curbing and guttering along side thereof, shall be entirely at the expense of the lot or lots fronting thereon, in proportion to the number of feet frontage, and shall be charged as a special tax thereon, in the manner hereinafter provided for. Wherever the city council, by their own motion or on petition of a majority of the owners of the property fronting on such proposed sidewalk, resolve to construct one, they shall cause the city engineer to make an estimate of the cost of such sidewalk, per square foot, and to give the amount, pro rata, which each property owner should pay—giving his or her name. The city council shall provide by ordinance for the construction of such sidewalk, determining its width, dimensions and the material out of which the same shall be constructed. The city council shall notify the property owners through the city secretary, that said sidewalk has been determined upon, and give such owners the right of having such work done themselves, under the superintendence of the city engineer. If a majority of the property holders have such work done, the others shall be liable for their proportion of the expense, and a special tax shall be levied for that amount. If the city shall have such work done, the entire cost of it shall be levied as a special tax on the property, in the proportion of its frontage on such sidewalk, and such taxes shall be a lien on such property, and in case the same is not paid at the time provided by ordinance for its collection, the assessor and collector shall advertise and sell as in other cases for taxes on real estate." Section 176 of the same charter provides that "in all cases where the city council may deem it necessary, and in all cases where the majority of the owners along any street, avenue or alley shall petition the same to be graded or macadamized, the city council shall have the work done as soon as practicable, * * * and where it shall be determined by the city council to have such work done, the engineer shall make an immediate report of the probable cost of such work, and at the same time give the names of those owning property on either side of the street, and the number of front feet of each party. The city council shall levy a special tax on all of such property to pay the two-thirds of costs for which it shall be liable, and such tax when levied shall be a lien, and if such special assessment be not paid within the time prescribed by the ordinance, directing such improvements, then the assessor and collector shall proceed to advertise and sell as in other cases." Section 178 of same charter provides that "contracts for street improvements shall be let to the lowest responsible bidder, and of such contractor the city council shall require such bond as they may deem proper." The charter granted the city by the act of March 13, 1889, provides, by section 154, that "the city council shall have power and authority to grade, fill, repair, macadamize, etc., 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 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 * * * All other improvements [except repairing] shall be entirely at the costs of the fronting or abutting property owners of each street so improved, who shall pay pro rata such entire costs according to the number of front or abutting feet respectively owned by them on such street. * * * The pro rata share of the costs of such improvements due from property owners * * * together with the expense of collecting the...