Bush v. City of Denton

Citation284 S.W. 251
Decision Date13 March 1926
Docket Number(No. 11515.)
PartiesBUSH v. CITY OF DENTON.
CourtCourt of Appeals of Texas

Appeal from District Court, Denton County; C. R. Pearman, Judge.

Suit by City of Denton against A. A. Bush. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Hopkins & Koons, of Denton, for appellant.

F. M. Bralley, Jr., and T. B. Davis, both of Denton, for appellee.

CONNER, C. J.

This is a consolidated suit prosecuted against A. A. Bush by the city of Denton, to recover some $800 upon specified improvement certificates alleged to have been issued to cover the cost assessed against him for the improvement and construction of streets, curbs, and gutters, upon which his property abutted. The trial resulted in a judgment in favor of the city, and defendant, Bush, has duly prosecuted this appeal.

Numerous assignments of error have been presented, but we will only notice such questions and recite such facts as we deem necessary to an understanding of our conclusion. It is undisputed that the city of Denton is a municipal corporation, which, prior to the institution of this suit, duly adopted the benefits of the provisions of chapter 11, tit. 22, Rev. Civil Statutes, and was also operating under a charter. Under its charter and the provisions of the chapter referred to, there is a governing body authorized to pass ordinances for the improvement of the streets in question. The character of paving, etc., was specified by ordinance, and advertisements for bids to do the work were made, but all bids received were rejected, and the city thereupon employed one J. M. Gurley, at a stated compensation, to supervise the work. Under Gurley's supervision the work proceeded for a time, when he became unable to further continue it and was released, after which the paving, construction of sewers, etc., was all done under the supervision of the mayor. All material, cost of labor, etc., both under the supervision of Gurley and the mayor, was paid by the city, after which the total cost was tabulated, and two-thirds of the cost of the street paving and the total cost of the curbing and possibly the guttering adjoining the property owned by Bush was assessed against him.

The general power of the city to make improvements of the character under consideration is not and cannot be disputed, but appellant raises numerous objections to the proceedings below. For instance, it is complained that the ordinances preliminary to the fixing of liens and charges against the owners of abutting property were not passed by a two-thirds majority vote of the governing body, as insisted it is required by article 931, Rev. Statutes; that the ordinance specifying the character of paving, etc., to be made was not followed; that the certificates include the cost of gutters and street sewers not authorized under the statutes of the city charter, etc. But we have not found it necessary to consider or determine these questions. Section 2 of article 23 of the city's charter, which was offered in evidence, reads as follows:

"All contracts for public printing, public improvements and public works of every kind and character and the purchase of supplies for use by any department of the city, exceeding an expenditure of one hundred dollars, shall be let on sealed competitive bids, subject to the approval of the commission."

It is a matter of public knowledge, of which we may take judicial notice, that there are two opposing schools of thought relating to the subject treated by the section of the charter quoted. One is that it is preferable and in the interest of the taxpayer for the municipality, the county, state, or government to undertake and construct public buildings, roads, and other improvements of the kind, and thus secure them for the benefit of the general public at actual cost, excluding all profits.

The opposing theory is that the ordinary governing body to-day is politically composed of persons subject to political influence, who are unskilled, without technical or experimental knowledge of the best methods, material, etc., calculated to avoid mistakes, insure durability at reasonable cost, and hence that more satisfactory results are more likely to be obtained by advertising for and obtaining a formal contract of a competitive bidder, of whom security can be required for the faithful and efficient completion of the public improvement. It is of course not the function of this court to determine which school of thought has the better of the argument, for it is undisputed that the voters of the city of Denton, in defining the powers of its governing body, saw fit, by the section of the charter cited, to require competitive bids for public improvements, etc., not exceeding an expenditure of $100. This special provision of the city's charter apparently at least operates as a limitation of the more general powers of the city to improve its streets, etc., to be found in its charter and articles of the statutes, and it has been, as we think, well said in section 495, of Page and Jones on Taxation by Assessment, that "such provisions are intended to protect the property owners, and are mandatory," citing Flickinger v. Fay, 119 Cal. 590, 51 P. 855; Siegel v. City of Chicago, 223 Ill. 428, 79 N. E. 280, 7 Ann. Cas. 104, and other cases, including the case of City of Dallas v. Ellison, 10 Tex. Civ. App. 28, 30 S. W. 1128, hereinafter more particularly noticed.

It is undisputed in the record that no contract with a competitive bidder was ever made with the city of Denton...

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3 cases
  • Walton v. City of Houston, 4582
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • November 17, 1966
    ...are not only irregular, but void, because the debt and paving liens were not fixed by competitive bidding. Citing Bush v. City of Denton, Tex.Civ.App., 284 S.W. 251, (w. ref.). See also Breath v. City of Galveston, 92 Tex. 454, 49 S.W. 575; Vilbig Brothers v. City of Dallas, 127 Tex. 563, 9......
  • Cook v. City of Addison, 05-82-00777-CV
    • United States
    • Court of Appeals of Texas
    • August 10, 1983
    ...pay for the improvements through the proceeds of the sale of bonds and money received from the county. Bush v. City of Denton, 284 S.W. 251 (Tex.Civ.App.--Ft. Worth 1926, writ ref'd); Celaya v. City of Brownsville, 203 S.W. 153 (Tex.Civ.App.--San Antonio 1918, writ ref'd); Alford v. City of......
  • Vilbig Bros. v. City of Dallas, 1577-6940.
    • United States
    • Supreme Court of Texas
    • March 4, 1936
    ...held in Breath v. City of Galveston, 92 Tex. 454, 49 S.W. 575; Kelly v. Cochran County (Tex.Com.App.) 82 S.W.(2d) 641; Bush v. City of Denton (Tex.Civ.App.) 284 S. W. 251, writ of error ref. In Limestone County v. Knox (Tex.Civ.App.) 234 S. W. 131, it was held that bidding is required where......

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