City of Lampasas v. Huling

• Decision Date: 18 December 1918
• Docket Number: (No. 5988.)
• Citation: 209 S.W. 213
• Parties: CITY OF LAMPASAS v. HULING.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

209 S.W. 213

CITY OF LAMPASAS v. HULING.^*

(No. 5988.)

Court of Civil Appeals of Texas. Austin.

December 18, 1918.

Rehearing Denied February 19, 1919.

Appeal from District Court, Lampasas County; F. M. Spann, Judge.

Suit by the City of Lampasas against W. N. Huling. From judgment for defendant, plaintiff appeals. Reversed and rendered.

H. F. Lewis, City Atty., and Matthews & Browning, all of Lampasas, for appellant.

T. S. Alexander and Word & Walker, all of Lampasas, for appellee.

KEY, C. J.

Appellant, a municipal corporation, in the year 1890 accepted the provisions of the Revised Statutes relating to cities of more than 1,000 inhabitants, in lieu of its special charter granted by the Legislature in 1873. On August 16, 1917, appellant instituted this suit against appellee to recover the sum of $116.20, expended by appellant in constructing a cement sidewalk in front of appellee's land within appellant's corporate limits, and to foreclose its lien on the land.

In addition to a general denial, appellee pleaded that appellant had no valid ordinance requiring or authorizing the construction of the sidewalk referred to; that the alleged ordinance had not been published as required by law; that it attempted to delegate legislative powers to a committee of aldermen designated the "public improvement committee," and for that, as well as for other, reasons the ordinance was void.

There was a nonjury trial, which resulted in a judgment for the defendant, and the plaintiff has appealed.

We sustain appellant's first assignment of error, which reads as follows:

"The plaintiff having proved a valid ordinance of the city of Lampasas (191-A), and the issuance and service of a valid notice to the defendant, being the ordinance and notice set forth in plaintiff's petition, and the defendant having failed to construct a side walk in front of his property as required by said ordinance and notice, and after such failure the plaintiff having constructed such sidewalk at an expense to it of $116.20, the court erred in failing to render judgment in favor of plaintiff for said sum, and in rendering judgment for the defendant."

The trial judge filed findings of fact and conclusions of law, and held that the ordinance was void, without indicating in his conclusions of law the particular ground for so holding; and therefore this opinion will be limited to the consideration of the reasons urged in appellee's brief for an affirmance of the judgment.

I. We overrule appellee's contention that there was not sufficient proof that the ordinance pleaded had been enacted by the city council. The ordinance referred to was designated as "No. 191-A," and the agreed statement of facts states in so many words that that ordinance was passed by the city council on June 27, 1917, and the plaintiff put in evidence the book of minutes of the city council, which set out the ordinance in full, and showed that it was duly and properly passed.

Nor is there any merit in the contention that the ordinance is void because it undertakes to make the cost of constructing the sidewalk, with legal interest and cost of collection, a personal claim against the property owner. The statute authorized the city council to enact the ordinance, and render appellee and his property liable for the amount sought to be recovered, unless the ordinance was invalid for some other reason.

II. Article 819 of the Revised Civil Statutes provides that every ordinance imposing any penalty, fine, imprisonment, or forfeiture shall be published before it becomes effective, and, as the ordinance in question was not published, counsel for appellee contend that it is void for that reason. That contention rests upon the predicate that the ordinance imposes a penalty, or provides for a forfeiture. The ordinance provides:

"Should any person owning property abutting or adjacent to any street along which any sidewalk shall be required to be constructed fail or refuse to construct any such sidewalk in front of or adjacent to his or her property in the manner required by this ordinance and as directed by the public improvement committee or the chairman thereof, within twenty days after notice as hereinbefore provided, the said public improvement committee for said city shall proceed to have said sidewalk constructed, and the cost of constructing the same shall be charged against such person, the owner, and the costs of construction of such sidewalk shall constitute a lien upon the property contiguous or adjacent to said sidewalk. Said costs of construction of such sidewalk adjacent to such property, together with legal interest and the cost of collection, shall constitute a personal claim against such property owner and be secured by a lien on such property superior to all other liens, claims, or titles, except lawful taxes, and such liability and lien may be enforced against such owner by suit in any court having competent jurisdiction."

We are of opinion that the language quoted does not impose a penalty or forfeiture, but that it merely provides a method by which the owner of real estate can be compelled to pay for the construction of sidewalks in the public streets adjacent to such property. As a general rule, sidewalks enhance the value of adjacent real estate, and it is for that reason that it is not deemed unjust to require the owner of such real estate to bear the burden of such improvements; and a law which accomplishes that result, and nothing more, imposes neither a penalty nor a forfeiture.

III. It is provided by statute that city councils have exclusive control and power over streets and alleys, public playgrounds and highways, and to construct, regulate, and keep in repair bridges, culverts, and sewers, sidewalks and crossways, and to regulate the construction and use of the same; and therefore, it is contended on behalf of appellee that, inasmuch as the ordinance in question, which provides "that all the sidewalks now constructed, or which shall hereafter be constructed, in the city of Lampasas, Tex., shall be done under the supervision of the public improvement committee of the city council of the city of Lampasas," the same is void.

The general rule is that, unless specially authorized so to do, legislative bodies, including those representing municipal corporations, cannot delegate to any other body or person legislative authority, but that such bodies, and especially municipal councils, may delegate such powers as are properly described as executive or administrative.

The first section of the ordinance in question vests in the public improvement committee of the city council supervision over all sidewalks "now constructed, or which shall hereafter be constructed," and declares that all future construction of sidewalks shall be under the supervision of that committee. The second, third, and fourth sections read as follows:

"...