City of Galveston v. Heard

• Decision Date: 18 March 1881
• Docket Number: Case No. 1302.
• Citation: 54 Tex. 420
• Parties: THE CITY OF GALVESTON v. T. J. HEARD.
• Court: Texas Supreme Court

54 Tex. 420

THE CITY OF GALVESTON

v.T. J. HEARD.

Case No. 1302.

Supreme Court of Texas.

Mar. 18, 1881.

APPEAL from Galveston. Tried below before the Hon. Wm. H. Stewart.

H. K. Mann & R. V. Davidson, for appellant.

Ballinger, Jack & Mott, for appellee.

I. The court erred in giving its judgment for the plaintiff on the law and facts of the case submitted to the court, instead of giving judgment for the defendant. Clegg v. State, 42 Tex., 105; Dillon, §§ 45, 643, 648, 649, and references; Cooley on Taxation, 259, 529; Davidson v. New Orleans, 96 U. S., 97 (1877); Stuart v. Palmer, 74 N. Y., 183 (1878); Cooley on Taxation, 267, and references; Wilkes v. Potter, 18 O. S., 85; Myrick v. La Crosse, 17 Wis., 442;Nash v. St. Paul, 11 Minn., 178;Scammon v. Chicago, 40 Ill., 146;Hewes v. Reis, 40 Cal., 262-3;Rathbun v. Acker, 18 Barb., 394;Dubuque v. Wooten, 28 Iowa, 571; Wilson v. Poole, 33 Iowa, 447; Lowell v. Waulworth, 6 Cush., 221; Thomas Man. Co. v. Lathrop, 7 Conn., 550-5;Kansas P. R. v. Russell, 8 Kan., 558; Mayor of Balt. v. Porter, 18 Md., 284; The Same v. Horn, 26 Md., 194.

II. The city had no authority under its charter to construct sidewalks on the credit of its bonds, as provided by ordinance of August 19, 1873, read by plaintiff, and to assess said cost, in said bonds, against the abutting owners, payable in ten payments, bearing ten per cent. per annum interest; and such assessment can create no liability against defendant or any other abutting owner. Williams v. Davidson, 43 Tex., 1, 34;Allen v. Galveston, 51 Tex., 318;Police Jury v. Britton, 15 Wall., 566; Memphis v. Ray, 19 Wall., 475; Dillon on Mun. Corp., § 393; State v. Rosenstock, 11 Nev., 147;Thomas v. Port Huron, 27 Mich., 323;Starin v. Genoa, 23 N. Y., 439; Gould v. Sterling, Id., 456; People v. Mead, 24 N. Y., 124;Horton v. Thompson, 71 N. Y., 513; S. P. affirmed, Scipio v. Wright, 101 U. S., 665;Chamberlain v. Burlington, 19 Iowa, 403; U. P. R. v. Lincoln County, 3 Dil. C. C., 300; Special Act Leg. 1871, p. 255; Gauge v. Clarksville, U. S. C. C., E. D. of Mo., 1879, by Dillon J., 7 Reporter, 519; Hackettstown ads. Schwackhamer, 37 N. J. Law, 191; Knapp v. Hoboken, 38 Id., 71; Beaman v. Lake Co., 42 Miss., 237;Hawkins v. Carroll Co., 50 Miss., 762;Carter v. Dubuque, 35 Iowa, 416;Middleport v. Ætna Life Ins. Co., 82 Ill., 562;Lippincott v. Pana, 92 Ill., 24;__________ v. Pontatoc Co., S. C. U. S., October Term, 1880, Central Law J.; City of Bryan v. Page, 51 Tex., 532;Pye v. Peterson, 45 Tex., 314; Article on “The Power of Municipal Corporations to Borrow Money,” Southern Law Review, January, 1881, 663-679, and references; Rogers v. Burlington, 3 Wall., 667; Middleton v. Alleghany Co., 37 Penn. St., 241; Reenboth v. Pittsburgh, 41 Id., 278; Sybert v. Pittsburgh, 1 Wall., 272.

III. The city could not undertake the construction of sidewalks on its general credit--on the common and general liability of its tax-payers, but could only do so by defraying the present current cost thereof, substantially and in good faith, by obtaining the same from the owners of the abutting lots. The system was in utter disregard and perversion of the charter. Dillon, § 55; Dwarris on Stat., Potter's ed., 72; Cooley on Taxation, 209; Lucas, Turner & Co. v. San Francisco, 7 Cal., 463; Roeck v. Newark, 33 N. J., 129; New Albany v. Sweeny, 13 Ind., 244; Johnson v. Indianapolis, 16 Id., 227;McCullough v. Brooklyn, 23 Wend., 458; Lake v. Williamsburg, 4 Denio, 533; Hunt v. Utica, 18 N. Y., 447;Swift v. Williamsburg, 24 Barb., 432; Baldwin v. Otsego, 1 Abbott's N. Y. Decisions, 62; Ruppert v. Baltimore, 23 Md., 193;Annapolis v. Harwood, 32 Id., 480;Fairfield v. Radcliff, 20 Iowa, 396;Craycraft v. Selvage, 10 Bush, 698, 708-9;Reed v. Toledo, 18 Ohio, 161;Goodrich v. Detroit, 12 Mich., 287;Murphy v. Louisville, 9 Bush, 189; also authorities cited under next assignment.

IV. The evidence shows that the city adopted a plan of constructing sidewalks, by the issuance of bonds therefor, to an amount exceeding $150,000, of which the sidewalk of Heard was a part. The charter of the city limited it to borrowing money for all general purposes to $50,000. This was, therefore, in excess of its powers, and cannot be enforced against the owners of property. Dillon on Mun. Corp., §§ 85-89, and cases cited; McPherson v. Foster, 43 Iowa, 48; Coulson v. Portland, Deady, 484; Balt. v. Gill, 31 Md., 375;St. Louis v. Weber, 44 Mo., 547; Corejon v. Gage, S. C. of Mo., 1879, 9 Cent. L. J., 238; Buchanan v. Litchfield, S. C. U. S., Oct. Term, 1880, Cent. L. J.; “Power of Municipal Corporations to Borrow Money,” article by Judge Dillon, Southern Law Review, January, 1881, p. 633; Rogers v. Burlington, 3 Wall., 663; Dillon on Mun. Corp., § 538; First Charter of Galveston, Acts 1840, p. 272; Charter, August 27, 1856, Special Laws 1856, p. 142; Charter, December 9, 1863, Acts 1863, p. 7; Rodman v. Munson, 13 Barb., 63; Newell v. People, 3 Seld., 9; Middleton v. Alleghany Co., 37 Penn. St., 237; Sybert v. Pittsburgh, 1 Wall., 272.

V. The first section of the paving ordinance provided that the owners of property fronting or abutting on the sidewalks should have the right and privilege of filling up, etc., their respective sidewalks; provided it was done in accordance with the ordinance and specifications, and completed in sixty days after passage of the ordinance. Section three authorized them to advertise for a period of fifteen days, in all the daily newspapers published in the city, for bids or proposals to do said work. Bids to be submitted to the city council for acceptance or rejection. Until the opportunity was given to the lot owners to do the work, and the time expired therefor, the right to advertise and make contracts by the city had not arisen. All the contracts, however, were made within the sixty days. Cowen v. West Troy, 43 Barb., 48;Nicholson Pavement Co. v. Painter, 35 Cal., 707; Same v. Fay, Id., 695. See 3 Woods, 299-300, Hitchcock case.

VI. Section 1, ordinance May 7, 1874, provided that the owners of property fronting or abutting on the sidewalks shall have the right and privilege of filling up, grading, curbing and paving their respective sidewalks; provided the said work is done in accordance with the provisions of the ordinance and the specifications of the city engineer on file in the mayor's office; and provided further, that they finish and complete the said work within sixty days from and after the passage of this ordinance. The proper construction of this ordinance requires that personal notice should have been given to said owners, and, without this, the right of the city to make contracts did not arise. Brewster v. Newark, 4 Stock. (N. J.) Eq., 114.

VII. The period of fifteen days' advertisement was required to be such that the specifications were on file in the mayor's office, and subject to inspection of bidders; and the evidence is positive that this was not the case. Kneeland v. Milwaukee, 18 Wis., 411; Mills v. Burnham, 20 Wis., 112;Brady v. New York, 20 N. Y., 312;Nash v. St. Paul, 11 Minn., 178; Bigler v. New York, 5 Abb. (N. Y.) New Cases, 51; 10 U. S. Dig., 1879, p. 537, No. 5.

VIII. The contract, entered into between the city and Lucas & Bumphrey, provided as follows: “It is further understood and stipulated, that, before the said L. & B. can lay down any portion of the said pavement, they must obtain the written consent of the owners of property situated on the sidewalk, specifying which of the said pavements they prefer, which written consent of the said property owners shall be filed in the mayor's office.” No such written consent was given. It was a condition precedent to their right to do the work, or to the city to hold the defendant liable therefor. Clause in Charter authorizing construction of sidewalks, title IV, art. 3, § 8; Acts 1871, p. 355, and Ordinance May 7, 1874, copied under fifth assignment; Story's Agency, § 165; Dillon on Mun. Corp., § 639; Reilly v. Philadelphia, 60 Penn. St., 467; Pittsburgh v. Walter, 69 Id., 365; Leavenworth v. Rankin, 2 Kan., 357;Swift v. Williamsburg, 24 Barb., 427;People v. Rochester, 21 Barb., 656;Litchfield v. Vernon, 41 N. Y., 123;Goodrich v. Detroit, 12 Mich., 279;Johnson v. Common Council, 16 Ind., 227;New Albany v. Sweeny, 13 Ind., 245;Kyle v. Marlin, 8 Ind., 34;Delphi v. Evans, 36 Ind., 90;Henderson v. Balt., 8 Md., 352;Holland v. Balt., 11 Md., 186;Bouldin v. Balt., 15 Md., 18; Balt. v. Eschback, 18 Md., 276; Carron v. Martin, 2 Dutch. (N. J.), 594; Camden v. Mulford, Id., 49; State v. Elizabeth, 1 Vroom (N. J.), 176; State v. Hand, 2 Id., 574; State v. Orange, 32 N. J., 49;Wells v. Burnham, 20 Wis., 112; Louisville v. Hyatt, 2 B. Mon., 127; Covington v. Casey, 3 Bush (Ky.), 698;Lexington v. Headly, 5 Id., 508;Burnett v. Sacramento, 12 Cal., 76; McGuinn v. Peri, 16 La. An., 326; Street Case, Id., 393; McKee v. Brown, 23 Id., 306; St. Louis v. Clemens, 36 Mo., 467;Matter of Market Street, 49 Cal., 546;Galveston v. Galveston C. R. Co., 46 Tex., 435; Daughty v. Hope, 3 Dennis, 599; Bronson C. T.; Simpler's Case, 19 Abb. Pr. 145.

GOULD, ASSOCIATE JUSTICE.

The city of Galveston brought this suit to recover of T. J. Heard an alleged assessment for a sidewalk alleged to have been completed by the city in front of his lot No. 1, in block 203, in said city, December 31, 1874, claiming both a lien on the lot and a personal judgment. The assessment was made March 1, 1875, amounted to $169.43, and was claimed to be due in ten annual installments, commencing December 31, 1874, and bearing interest at ten per cent. per annum, and the suit was to recover or enforce those installments due at the institution of the suit, November 6, 1879. The pleadings of defendant were sufficient to present the questions ruled upon by the court below, trying the case without a jury, which rulings or conclusions, both of law and fact, and the reasons therefor, constitute part of the record, and have greatly aided this court...