Kerr v. City of Corsicana

• Decision Date: 14 December 1895
• Citation: 35 S.W. 694
• Parties: KERR et al. v. CITY OF CORSICANA.
• Court: Texas Court of Appeals

35 S.W. 694

KERR et al. v. CITY OF CORSICANA.

Court of Civil Appeals of Texas.

December 14, 1895.

Appeal from district court, Navarro county; Rufus Hardy, Judge.

Action by C. P. Kerr and others against the city of Corsicana for an injunction. Judgment for defendant, and plaintiffs appeal. Reversed.

Frost, Neblett & Blanding, for appellants. McClellan & Prince and J. F. Stout, for appellee.

RAINEY, J.

This is an injunction suit, instituted in the district court of Navarro county, by appellants, owners of property fronting on Beaton and Collin streets, in the city of Corsicana, to enjoin said city from the collection of certain taxes levied by said city to pay for a certain part of the expenses incurred in paving said streets. On the trial below, special issues were submitted to the jury by the court; and, upon the answers returned, the court rendered a judgment in favor of the city, from which this appeal was taken. We will not attempt to discuss all the assignments of error, there being 66, but will give our attention to only those which we think are necessary for a proper solution of the issues raised, and which are decisive of the case.

It is conceded by appellants that the city had the power to levy a tax against the property fronting on said streets for paving same, but it is contended that, in making the assessment, the necessary prerequisites prescribed by the city charter were not complied with; hence the assessment is illegal. The contention we will first notice is that, before letting the contract to pave, it was necessary for the city council to have passed "a resolution or ordinance by a vote of two-thirds of the aldermen present, declaring they deemed it for the public interest to pave said streets." The city of Corsicana was incorporated under the general incorporation statute of this state, at the time and before the paving contract was entered into and the work of paving done. Article 474, Rev. St., gives cities incorporated under the general statute "full power and authority to grade, gravel, repair, pave, or otherwise improve any avenue, street, or alley, or any portion thereof, within the limits of said city, whenever, by a vote of two-thirds of the aldermen present, they may deem such improvement for the public interest," etc. The city council of said city passed an ordinance or resolution by a two-thirds vote of all the aldermen present to pave Beaton and Collin streets, but there were no express words therein declaring that they deemed such improvement for the public interest. The question here presented is not an open one in this state. The precise point was decided by this court in the case of Connor v. City of Paris, 27 S. W. 88. We there held: "It was not necessary for the city council, by a formal expression, to declare that they deemed the improvement of Bonham street for the public interest, in order to make the ordinance providing for such improvement valid. The act of passing an ordinance providing for such improvement by a two-thirds vote of all the aldermen elected was a sufficient declaration that they deemed such improvement to be for the public interest, and was a substantial compliance with the provision of the charter of the city of Paris which authorized such improvement to be made `whenever, by a vote of two-thirds of the aldermen elected, they may deem such improvement for the public interest.'" See authorities there cited; also, Connor v. City of Paris, 87 Tex. 32, 27 S. W. 88. These authorities are conclusive of this point. The action of the city council in this particular was a sufficient compliance with the provisions of the city charter.

The next contention of appellants that we will consider is "that an estimate of the probable cost of the paving should have been made by the city engineer, paving committee, or officer of the council appointed for such work, preceding the letting of the contract and the actual construction of the work; and that a failure to make a report on these matters, as provided by article 475, Rev. St., was fatal to the exercise of jurisdiction over the paved streets." Article 475, Rev. St., is as follows: "Whenever the city council shall determine to make any such improvement, they shall cause an estimate to be made of the probable cost thereof by the city engineer, or some other officer of the city, or by a committee of three aldermen; and such engineer or other officer, or committee, shall also report a full list of all lots, giving number and size of the same, and the number of the block in which situated, and the names of the owners thereof, if known, and such other information as may be required by the city council, and if there be any lot or fractional lot the owner of which is not known, the same shall be entered on said list as unknown; it shall be the duty of the officer or committee aforesaid to enter on said list, opposite each lot or fractional lot lying and being on each side of the street, avenue or alley so to be improved as aforesaid, one-third of the estimated expense for such work or improvement on such avenue, street or alley, fronting, adjoining or opposite such lot or fractional lot; and on the acceptance and approval of said report and list by the city council, said amount shall be imposed, levied and assessed as taxes, and shall be a lien upon the property until the payment of the same." The following statement, from appellants' brief, shows correctly the action of the city council in letting the contract and levying the taxes: "The ordinance or resolution declaring an intention to pave Beaton street from 3d avenue to Houston & Texas Central Ry. depot, and Collin street from 10th to 11th streets, was passed May 6, 1890. At the same time, a committee, consisting of Smith, Pace, and West, was appointed to get plans and specifications, and to estimate cost of paving Beaton street from 3d avenue to Houston & Texas Central Ry. depot, and Collin street from west side of 10th street to the east side of 11th street. On June 3, 1890, this committee reported that they had advertised for bids on such paving. June 17, 1890, the city council received bids on such paving. These bids were referred to said committee on paving. June 18, 1890, the committee consisting of Smith, Pace, and West, reported Howard & Company made the lowest bid, and their bid was accepted. This committee made no further report. June 23, 1890, an ordinance was passed directing the issuance of $30,000 in bonds to pave Beaton and Collin streets, to bear date July 1, 1890. June 26, 1890, the council let the contract to Howard & Co. to pave Beaton street from north curb line of 7th avenue to south curb line of 3d avenue, and Collin street from west curb line of 10th street to east curb line of 11th street. The work of paving began on July 7, 1890. February 3, 1891, the council appointed a committee, consisting of S. A. Pace, C. S. West, and R. F. Coleman, to estimate the probable cost of paving Beaton street from 3d to 7th avenue, and Collin street from 10th to 11th, and they were directed to make their report at the next regular meeting of the council, in accordance with article 475 of the charter. On February 17, 1891, that committee asked for further time, which was granted. On March 3, 1891, this committee made its report, which was adopted. On March 17, 1891, an ordinance was passed by the council providing for the levy and assessment of taxes on lots and fractional lots, and the owners thereof, for the estimated cost of paving Beaton street from 3d avenue to 7th avenue, and Collin street from 10th to 11th streets. The entire work of paving was completed March 28, 1891."

It is well settled by a long line of decisions that, in order for a tax assessment for street improvements to be legal, a strict compliance with the provisions of the charter must be made, and a failure to comply therewith renders the assessment void. Was the making of such a report as is provided in article 475. Rev. St., a condition precedent to the letting of the paving contract, the failure to make which rendered the levy and assessment void? We think so. In requiring this estimate of the probable cost of the improvement to be made, the lawmakers evidently intended that it should precede the letting of the...