City of Houston v. Fore, A--11500

• Decision Date: 22 February 1967
• Docket Number: No. A--11500,A--11500
• Citation: 412 S.W.2d 35
• Parties: CITY OF HOUSTON, Petitioner, v. R. H. FORE, Respondent.
• Court: Texas Supreme Court

Page 35

412 S.W.2d 35

CITY OF HOUSTON, Petitioner, v. R. H. FORE, Respondent.

No. A--11500.

Supreme Court of Texas.

Feb. 22, 1967.

Rehearing Denied March 29, 1967.

Homer T. Bouldin, Trial Supervisor, City of Houston, Houston, W. P. Dobbins, San Antonio, for petitioner.

Danny R. Edwards, Joel B. McCarty, Jr., Houston, for respondent.

WALKER, Justice.

The question to be decided is whether, under the facts of the present case, constructive notice by publication of the hearing on the assessment of costs of street improvements against abutting owners as provided in Article 1105b, Vernon's Ann.Tex.Civ.Stat., satisfies the requirements of the due process clause of the Constitution of the United States. We hold that notice by publication was not sufficient as to the particular owner who is involved in this action.

Suit was filed by the City of Houston, petitioner, against R. H. Fore, respondent, to recover the amount of two paving assessments and for foreclosure of the lien thereof. The jury found, in effect, that the published notice identified the highway sufficiently to inform the abutting owners that their property was to be improved. Respondent's motion for judgment notwithstanding the verdict was granted by the trial court, and the Court of Civil Appeals affirmed. 401 S.W.2d 921.

There is no dispute as to any of the material facts. After determining to make certain paving improvements on Delz Street and adopting the plans and specifications therefor, the city council passed an ordinance approving the estimate of costs and declaring the rate per front foot at which it proposed to assess a part of such cost against the abutting property. This ordinance also ordered a hearing and directed that notice be given the interested property owners by publication three times in the Houston Press. The notice was published and the hearing was subsequently held as provided in the ordinance. At the conclusion of the hearing assessments were levied against the abutting properties, including two tracts owned by respondent Fore. Respondent did not attend the hearing. He had not read the published notice, and had no knowledge of the hearing from any other source. It also appears from the undisputed evidence that he had resided at 505 Delz in Houston for 24 years. He owned the property there; his address was on the tax rolls and was known to petitioner. As a matter of fact, the city had previously sent communications to him at that address.

The assessments were made under the authority of Article 1105b, the material provisions of which are as follows:

'Sec. 3. That the governing body of any city shall have power to * * * provide for the payment of the cost of such improvements by the city, or partly by the city and partly by assessments as hereinafter provided.

'Sec. 4. * * * and in no event shall more than all the cost of constructing, reconstructing, repairing and realigning curbs, gutters and sidewalks, and nine-tenths of the remaining cost of such improvements as shown on such estimate be assessed against such abutting property and owners thereof.

'Sec. 7. The part of the cost of improvements * * * which may be assessed against abutting property and owners thereof shall be apportioned among the parcels of abutting property and owners thereof, in accordance with the Front Foot Plan or Rule provided that if the application of this rule would in the opinion of the Governing Body, in particular cases, result in injustice or inequality, it shall be the duty of said Body to apportion and assess said costs in such proportion as it may deem just and equitable, having in view the special benefits in enhanced value to be received by such parcels of property and owners thereof, the equities of such owners, and the adjustment of such apportionment so as to produce a substantial equality of benefits received and burdens imposed.

'Sec. 9. No assessment herein provided for shall be made against any abutting property or its owners * * * until after notice and opportunity for hearing as herein provided, and no assessment shall be made against any abutting property or owners thereof in excess of the special benefits of such property, and its owners in the enhanced value thereof by means of such improvements as determined at such hearing. Such notice shall be by advertisement inserted at least three (3) times in some newspaper published in the city where such special assessment tax is to be imposed * * * .'

The notice published in the Houston Press complied in all respects with the requirements of this statute. Our problem is to determine whether the statutory notice meets the test of constitutional due process as to respondent. An amicus curiae brief suggests that a hearing in connection with a paving assessment such as we have in the present case is not required by the 14th Amendment to the Constitution of the United States, and that the Legislature was thus free to prescribe any notice of a hearing that they might consider proper.

In support of his basic premise that a hearing is not constitutionally required, our amicus cites decisions such as French v. Barber Asphalt Paving Co., 181 U.S. 324, 21 S.Ct. 625, 45 L.Ed. 879, and Withnell v. Ruecking Construction Co., 249 U.S. 63, 39 S.Ct. 200, 63 L.Ed. 479. In each of these cases the cost of the improvements was apportioned among the abutting property owners on the basis of a fixed rule, such as front footage or area, prescribed by legislative act. The court reasoned generally that a legislative determination of the lands benefited by the improvement and the manner in which the cost shall be apportioned among the different parcels is, unless palpably arbitrary or grossly unfair, conclusive upon the owners and the courts. It accordingly held that the owners were not entitled to be heard in advance on the amount of the assessment or the benefits conferred.

For the purpose of this opinion then, we begin with the premise that under the United States Constitution an owner ordinarily is not entitled to notice or hearing before assessment of the cost of public improvements in accordance with an inflexible legislative formula. ¹ The rule is otherwise, however, where the legislature, instead of prescribing an inflexible formula, authorizes an administrative determination of the lands benefitted and the amount of benefits accruing to each tract. Londoner v. City and County of Denver, 210 U.S. 373, 28 S.Ct. 708, 52 L.Ed. 1103; Browning v. Hooper, 269 U.S. 396, 46 S.Ct. 141, 70 L.Ed. 330. See also Rhyne, Municipal Law § 29--7. In holding a paving assessment void because the owners were not given a hearing, the Supreme Court of the United States said in Londoner:

'In the assessment, apportionment, and collection of taxes upon property within their jurisdiction, the Constitution of the United States imposes few restrictions upon the states. In the enforcement of such restrictions as the Constitution does impose, this court has regarded substance, and not form. But where the legislature of a state, instead of fixing the tax itself, commits to some subordinate body the duty of determining whether, in what amount, and upon whom it shall be levied, and of making its assessment and apportionment, due process of law requires that, at some stage of the proceedings, before the tax becomes irrevocably fixed, the taxpayer shall have an opportunity to be heard, of which he must have notice, either personal, by publication, or by a law fixing the time and place of the hearing. * * *'

Article 1105b does not prescribe a fixed rule, and there has been no legislative determination of benefits. Subject to the limitations set out in Section 4, the governing body is authorized by Section 3 to provide for payment of the cost of the improvements by the city or partly by the...