Dallas Consol. Electric St. Ry. Co. v. City of Dallas

• Decision Date: 23 April 1924
• Docket Number: (No. 526-3993.)
• Citation: 260 S.W. 1034
• Parties: DALLAS CONSOL. ELECTRIC ST. RY. CO. et al. v. CITY OF DALLAS et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Supreme Court

260 S.W. 1034

DALLAS CONSOL. ELECTRIC ST. RY. CO. et al. v. CITY OF DALLAS et al.^*

(No. 526-3993.)

Commission of Appeals of Texas, Section A.

April 23, 1924.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Action by the City of Dallas against the Dallas Consolidated Electric Street Railway Company and others, wherein the Texas Bitulithic Company intervened. Judgment for defendant on an appeal by intervener was reversed and the cause remanded by the Court of Civil Appeals (Texas Bitulithic Co. v Dallas Consol. Electric St. R. Co., 248 S. W. 746), and defendants bring error. Judgment of Court of Civil Appeals reversed, and judgment of district court affirmed.

Templeton, Beall, Williams & Worsham, and Dabney, Goggans & Ritchie, all of Dallas, for plaintiffs in error.

J. J. Collins. City Atty., and L. R. Callaway, Asst. Atty. Gen., both of Dallas, for defendants in error.

CHAPMAN, J.

This suit was instituted in the district court of the Sixty-Eighth judicial district of Dallas county, Tex., by the city of Dallas, in which suit the Texas Bitulithic Company intervened. The plaintiff and the intervener in the court below alleged, in substance, that the board of commissioners of the city of Dallas, by resolution passed and adopted, had ordered the improvement of Bryan street in the city of Dallas, from the northeast line of St. Joseph street to the northeast line of Munger boulevard, by grading, raising, and filling same, and by installing concrete curbs and gutters, and installing and building storm sewers and drains necessary to the proper improvement of said street.

It was alleged that the board of commissioners assessed against the Dallas Consolidated Electric Street Railway Company the cost of paving, and 56.4 per cent. of the cost of storm sewers; the said per cent. of the cost of storm sewers being alleged to be $6,292.62. The Dallas Consolidated Electric Street Railway Company paid all of the assessment except that for the cost of storm sewers, which it refused to pay and the suit was filed to enforce the collection of the $6,292.62.

The city of Dallas and the Texas Bitulithic Company urged that the city of Dallas had the power to make the assessment against the street railway company by virtue of the provisions of article 10, § 1, and of subdivisions (b) and (d) of said article.

Section 1 of article 10 of the Charter of the City of Dallas, which was enacted by the Legislature of the state, is as follows:

"The term `street improvements,' as embraced in this article, shall include the improvement of any street, alley, highway, public place or square, or any portion thereof, within the city, by filling, grading, raising, macadamizing, remacadamizing or otherwise improving the same, or of constructing or reconstructing of sidewalks, curbs, gutters or repairing the same; and shall also include the laying out, opening, narrowing, straightening or otherwise establishing, defining and locating any street, avenue, public alley, square, place or sidewalk, and said terms shall also include any other street improvement of a public nature and for a public benefit."

By subdivision (b) of section 1, the board of commissioners are given power to order the improvement of any public highway within the city of Dallas.

By subdivision (d) the board of commissioners of the city of Dallas are given the authority to assess the cost of improving any public highway, against abutting property owners, and providing that the cost of improving such street between and under the rails, tracks, and switches, and two feet on the outside of the rails, may be assessed against the street railway.

Article 11, § 4, of the City Charter of the City of Dallas, is as follows:

"The board of commissioners shall have power by ordinance, to provide for and construct a general sewer and drainage system to be divided into public and private sewers and drains, and to be constructed, maintained and regulated in such manner, and out of such material as the board of commissioners may prescribe. Sewers may be established as the board of commissioners may direct, and there may be extensions of branches and sewers already constructed, or entirely new throughout, as may be deemed expedient. The board of commissioners may, if necessary, levy a tax on all taxable property in the entire city to pay for the construction and repairs of such public sewers, which shall be called a special sewer tax, and shall be used solely for such purpose."

The remainder of the subdivision is not material for the purpose of the inquiry herein.

The plaintiffs in error here (the defendants in the trial court), urged in the trial court and in the Court of Civil Appeals that the provisions of article 10 of the City Charter did not give to the board of commissioners of the city of Dallas the authority to assess against the street railway company any portion of the cost of the construction of a storm sewer, insisting that the definition of "street improvements," as included in the said provision of the city charter, did not include storm sewers, but, on the contrary, excluded storm sewers. The trial court sustained the contention of the street railway company, and entered judgment that the plaintiff and the intervener take nothing. The city and the paving company carried the case to the Court of Civil Appeals for the Fifth supreme judicial district on writ of error, and the Court of Civil Appeals entered its opinion and judgment, holding, in effect, that the definition of "street improvements," as contained in section 1 of article 10 of the Charter of the City of Dallas included storm sewers, and therefore held that the board of commissioners of the city of Dallas had the authority...