Hutcheson v. Storrie

• Decision Date: 17 November 1898
• Citation: 48 S.W. 785
• Parties: HUTCHESON et al. v. STORRIE et al.
• Court: Texas Court of Appeals

48 S.W. 785

HUTCHESON et al. v. STORRIE et al.

Court of Civil Appeals of Texas.

November 17, 1898.

Appeal from district court, Harris county; John G. Tod, Judge.

Action by R. C. Storrie and others against B. M. Hutcheson and others. From a judgment for plaintiffs, defendants appeal. Modified.

Hutcheson, Campbell & Meyer, for appellants. Ewing & Ring, for appellees.

PLEASANTS, J.

This suit was instituted by appellee Storrie to recover of Bettie M. Hutcheson and her husband, J. C. Hutcheson, certain sums of money alleged to be due him upon six improvement certificates issued to him for certain street improvements in the city of Houston, under contract with said city, against said Bettie M. Hutcheson, and to enforce the lien on the property described in the petition. The defendant answered by general denial, and by special plea, in which she described the nature and character of the street upon which the improvement was made, and alleged that the improvement was one wholly public, and one which bestowed no special benefit upon her property; averred that the property was suburban farm land; charged that the burden imposed upon her was violative of both the federal and state constitutions; gave the general nature of the property, and charged that the provisions of the city charter regulating improvements, and charging the same upon abutting proprietors, were inapplicable to property lying on the street in question; that the imposition was unequal between the parties on the same road; and that it was in excess of the entire value of the property, and was confiscatory in its result. The case was tried before the judge of the court without the intervention of a jury. The judge determined that some of the improvement certificates were in excess of the sums actually due the plaintiff for the work done by him under his contract with the city, and allowed plaintiff upon such certificates such amounts only as he adjudged the certificates should have been issued for. He also adjudged that the defendant Mrs. Hutcheson should be allowed upon the assessment against lot 57 the sum of $493.52, for the cost of street intersections. Judgment was then rendered against the defendant and her husband for the sums sued for, less the said deductions; and the several sums for which judgment was rendered were decreed to be liens, respectively, upon the several parcels of land described in the petition. The plaintiff subsequently entered a remittitur of the personal judgment against the defendants, and the judgment was reformed in accordance with this action of the plaintiff. The defendants excepted, and gave notice of appeal.

Our conclusions of fact deduced from the evidence are:

(1) That the improvement for which the certificates sued on were issued to appellee was made upon a street of the city which lies between the crossing of the International & Great Northern Railway upon Congress avenue and the eastern boundary of the corporation, and at this boundary it connects with the county road running from the city limits to the town of Harrisburg, distant some six or seven miles. At the intersection of Congress avenue and the International & Great Northern Railway there are several tracks crossing the street, and over them much switching is done. The length of the improvement is something over a mile, and its width is 35 feet, and its nearest point from the center of the city is about one-half of a mile. The property abutting upon the street is generally unimproved. There are not over 33 houses between the railway tracks and the eastern limits of the city. The appellant's property, which lies north of the street, consisting of a block without subdivisions, containing about 20 acres of land, has a dairy farm and pasture upon it, and much of the property on this street is devoted to agricultural or pastoral purposes. The houses upon the lots, with one exception, were small, and not exceeding in value over a few hundred dollars each. There were three or four stores, the largest of these being one of general merchandise. The others were small groceries. There are no factories or shops of any kind upon the street, and this quarter of the city is not supplied with water or lights, or afforded protection from fire, as other portions of the city are. In many of the lots there is a striking difference between their length or frontage, and their depth; but upon each the assessment was in proportion to its frontage, without regard to its depth.

(2) The resolution of the city council declaring the improvement of the street in question to be a public necessity, and providing for making same, was passed by the requisite majority. The resolution was submitted to the board of aldermen at a regular meeting, on the 6th of August, 1894, and was rejected by the board, less than two-thirds of the aldermen voting for its adoption, and the board then adjourned sine die, without a previous motion from any member for a reconsideration of the vote; and at the next regular meeting of the board, August 13th, without a previous motion to suspend the rules of proceeding, one of the aldermen who voted for the resolution at the previous meeting of the board moved to reconsider the vote by which the resolution was defeated at the previous meeting, and the motion prevailed, and the resolution was then adopted by a majority of two-thirds of all the aldermen elected for the city; and this action was in violation of the rules of order of the board of aldermen. It further appears that the resolution was originally proposed by the city attorney, and that it did not contain the words "Talfor macadam" when it left his hands, nor did this officer know by whom these words were inserted; that they were in a different handwriting from the rest of the resolution, and were in pencil, while the other parts of the resolution were written in ink; that the city secretary did not know by whom these words were written, or whose handwriting they were in, and he did not know whether they were in the resolution when it passed or not, nor whether they were in the resolution when it was referred to the board of public works. This resolution was published as required, and afterwards, in accordance with the charter, under direction from the board, the city engineer prepared specifications for the improvement, which, after report thereon from the board of public works approving same, were adopted by the city council, and the city secretary was directed to advertise for bids for doing the work in accordance with the specifications, which advertisement was duly made; and, of the bids received, that of the appellee was accepted, after the same had been referred to, and approved by, the board of public works. This bid was 69 cents per foot for curbing, 25 cents for excavation for roadbed per cubic yard, $1.65 for laying Talfor macadam paving per square yard, and 45 cents per cubic yard for excavation for curb walls and gutters, and contract was duly made with appellee for doing the work.

(3) That at a meeting of the city council on the 12th day of August, 1895, the report of the board of public works recommending the acceptance of the work from the city limits to Velasco street, which embraces that portion of the street on which appellant's property abuts, with the certificates of the engineer and of the inspector, were adopted by the council, October 21, 1895. Rolls of ownership and estimate sheets were adopted by the council, and the issue of certificates thereunder was ordered, after the same had been approved and certified by the board of public works; and they were also certified by the city engineer, his certificate being "that said roll of ownership and estimate sheet is correct"; and they also had the certificate of Isaac R. Lindley, signing himself "Acting City Attorney," who was under contract with the then city attorney, John Stewart, to represent him before the city recorder, but had no engagement with the said Stewart, or authority from him, to represent him in any proceeding of the city council. Both of these certificates were attached to the rolls before their adoption, and these rolls were duly published by the city secretary. The appellant's property was described by the rolls as "Palmer's Ext.," reciting under the heading, "Palmer's Ext., blocks 16, 17, and 18." The original map of this property, which was entitled "First Extension of Palmer's Addition to the City of Houston," was in evidence, and showed appellant owned lots 16, 17, and 18 in this addition to the city. The rolls described lot 57, owned by appellant in S. M. Williams' survey, as "lot 57, S. M. Williams' survey, fronting 248 feet on street; lot 57, S. M. Williams' survey, fronting 162 5/10 feet; and lot 57, S. M. Williams' survey, fronting 236 5/10 feet." The block No. 57 extended on the street 647 feet, but was without subdivisions, and contained about 20 acres of land. The descriptions of the property in the assessment certificates were substantially those given in the rolls. The certificates were issued by the council for the work done in making the improvement on this street, over the protest of several of the owners of property abutting thereon, the appellant not being one of them, nor her husband. The cost of the improvement is large, compared to the value of the abutting property, and the evidence is conflicting as to whether or not the cost is in excess of the value of the property assessed.

Upon the above conclusions of fact reached by us, we are of the opinion, after a careful and patient consideration of the case, assisted in our investigation by the light afforded us by the able briefs of counsel, that none of the objections urged by appellant against the judgment should be sustained.

Under her first assignment of error, appellant assails the sections of the charter of the city of Houston, under which the assessment complained of was made, as violative of section 48 of article 3 of the...