Breath v. City of Galveston

• Citation: 49 S.W. 575
• Parties: BREATH et al. v. CITY OF GALVESTON.
• Decision Date: 20 February 1899
• Court: Supreme Court of Texas

49 S.W. 575

BREATH et al. v. CITY OF GALVESTON.

Supreme Court of Texas.

February 20, 1899.

Error to court of civil appeals of First supreme judicial district.

Action by the city of Galveston against Walter F. Breath, guardian, and others. A judgment for plaintiff was affirmed by the court of civil appeals (46 S. W. 903), and defendants bring error. Reversed.

L. E. Trezevant, for plaintiffs in error. R. Waverley Smith, City Atty., and Wheless & Bennett, for defendant in error.

DENMAN, J.

The city of Galveston brought this suit against Breath and others to recover two assessments for the filling and paving of streets on which a lot owned by defendants fronted, and to foreclose a lien therefor upon same. The petition shows that the work was done by contract, but does not allege that an advertisement for bids for the doing of the work was ever made or published by the board of public works. Defendants excepted to the petition for want of such allegation, which exception was overruled by the trial court, and, upon hearing, judgment was rendered for the city for the amount of the assessments and for foreclosure of the lien therefor. Breath and others having appealed from this judgment to the court of civil appeals, assigning the overruling of such exception as error, and the court of civil appeals having overruled such assignment and affirmed the judgment, they have brought the cause to this court upon writ of error, complaining that the court of civil appeals erred in not sustaining said assignment.

In this character of proceeding, the purpose is to impose upon the owner and his property, without his actual participation or consent, a pecuniary obligation and lien. In other words, when certain steps prescribed by the charter have been taken, the law imposes the obligation and lien. Therefore, each step is an essential element of this imposed obligation and lien, and the absence of any one is as fatal as is the absence of any of the essential elements of an ordinary contract in a suit upon a private agreement. If the advertisement is one of the steps prescribed by the charter, no obligation or lien can exist, in the absence thereof, any more than there would be in the case of an ordinary agreement, in the absence of a consideration. Of course, if the advertisement was necessary to the creation of the obligation and lien, the petition seeking to show their existence as a basis of recovery is fatally defective in not alleging such advertisement. The sole question, then, is, does the charter of the city prescribe the advertisement as one of the steps to be taken in proceeding to impose the obligation or lien? We are of opinion that it does. The provisions of the charter bearing upon the question will be found in sections 127, 128, and 174 thereof (Sp. Laws, Reg. Sess. 1891, pp. 66, 73). Section 127 confers upon the city council full power and authority to do the work, and imposes upon abutting property owners an obligation to pay certain proportion of the costs, fixing the same as a lien upon such property. Sections 128 and 174 require the council, before...