O'Connor v. City of Laredo

• Decision Date: 10 June 1914
• Docket Number: (No. 5309.)
• Citation: 167 S.W. 1091
• Parties: O'CONNOR v. CITY OF LAREDO.
• Court: Texas Court of Appeals

167 S.W. 1091

O'CONNOR v. CITY OF LAREDO.

(No. 5309.)

Court of Civil Appeals of Texas. San Antonio.

June 10, 1914.

Appeal from District Court, Webb County; J. F. Mullally, Judge.

Action by the City of Laredo against Thomas O'Connor. From a judgment for plaintiff, defendant appeals. Affirmed.

H. G. Dickinson, of Laredo, for appellant. A. Winslow, of Laredo, for appellee.

CARL, J.

The city of Laredo, appellee, brought this suit against Thos. O'Connor, appellant, for the recovery of taxes, interest, and penalties for the years 1909, 1910, 1911, and 1912, and for the foreclosure of a tax lien on the property of appellant situated in the city of Laredo.

Appellant answered by general demurrer and special exceptions substantially as follows: (1) That it does not appear from any averment in the petition that the city council has authorized this suit or directed the city attorney to enter and prosecute the same. (2) That there is no sufficient description of defendant's personal property that was assessed as alleged in the petition. (3) And because it appears from the petition that, on the dates when the taxes sued for were due, the defendant owned personal property in the city of Laredo subject to seizure, levy, and sale for the purpose of collecting said taxes as provided by law, and "nowhere in said petition is it alleged that said remedy provided by law was pursued by plaintiff or its officers, which remedy defendant alleges was and is a prerequisite to any legal suit against him for the recovery of any part of said alleged taxes." (4) That it appears from said petition that there never had been any legal assessment of defendant's property for said years because both real and personal property were assessed in bulk as one piece of property.

Appellant, upon the overruling of his exceptions, did not further defend, and, upon a trial before the court, judgment was rendered in favor of the city of Laredo for the taxes, interest, and penalties in the sum of $825.89, foreclosing the lien on one-half of lot No. 8, block 2, and lots 3, 4, and 5, in block 681, all in the city of Laredo. The court overruled a motion for new trial, and the appellant has perfected this appeal.

The present charter of the city of Laredo was granted by the Thirty-Second Legislature (Special Laws 1911, c. 10, p. 58), and section 116 of said act makes this charter a public act. The power to sue and be sued is specially granted. Section 115 gives the city the right to bring suits in any court of competent jurisdiction for the recovery of any taxes due. Section 3 of that act or of the charter provides, among other officers of the municipality, for a city attorney. Section 35 makes it the duty of the city attorney to represent the city in all litigation and cases to which the city may be a party, as well as to advise the city officers when requested.

The charter powers of a city, where it is granted by public act, need not be pleaded. Wright v. City of San Antonio, 50 S. W. 406, affirmed in 93 Tex. 723, no opinion. The corporate powers of a city chartered by public act are known to the courts and need not be pleaded. Dwyer v. City of Brenham, 65 Tex. 526. And it has been held that, where an incorporated city sues as such, a plea denying its incorporation must be sworn to. Heller v. Alvarado, 1 Tex. Civ. App. 409-411, 20 S. W. 1003; article 1906, subd. 7, Rev. St. 1911.

So, by the public act of the Legislature granting the charter to the city of Laredo, the power to sue and be sued is given the city as a municipal corporation; a city attorney is therein provided; and it is made his official duty to represent the city. When that official brings a suit on behalf of the city, the courts will presume that he is discharging his duty and that the suit was duly authorized unless the want of authority to bring the action is properly presented and the issue made upon sworn plea. That is a matter of defense, and appellant must, if he desires to raise the question of proper authority, tender the issue on his own pleadings. If he sought to defend upon the...