Lufkin v. City of Galveston

• Decision Date: 13 February 1883
• Docket Number: Case No. 1437.
• Citation: 58 Tex. 545
• Parties: A. P. LUFKIN v. CITY OF GALVESTON.
• Court: Texas Supreme Court

58 Tex. 545

A. P. LUFKIN

v.CITY OF GALVESTON.

Case No. 1437.

Supreme Court of Texas.

Feb. 13, 1883.

APPEAL from Galveston. Tried below before the Hon. Wm. H. Stewart.

Suit was brought by the appellee (plaintiff below) on the 3d day of May, 1880, in the district court of Galveston county against the appellant, to recover of him the sum of $1,297.34, with interest at ten per cent. per annum from December 31, 1874, on $1,024.19, and on $251 from the 15th of January, 1875, for the cost of construction of certain sidewalks alleged to have been constructed by the plaintiff, the city of Galveston, and finished and completed in front of defendant's lots in the city of Galveston. It was claimed that the work was done under authority of an ordinance of the city of Galveston, and amendments thereto, passed February 3, 1874, and May 7, 1874, under authority of the charter of the city of Galveston, passed on the 16th of May, 1871, the charter being now repealed, 2d day of August, 1876, which was set out in petition, and amendments thereto passed on the 18th of May, 1875.

A further statement of the pleadings and facts is unnecessary, the important point decided being the liability of the homestead to forced sale for the payment of a special tax levied by a city government.

Trezevant & Franklin, for appellant.

On behalf of appellant, we respectfully submit, as sustained both upon principle and by authority, the following propositions:

I. That the provisions of the charter, exacting from the owner of the abutting lot the cost of the work in front of the lot, can be sustained only under the police power, and not under the taxing power of the government; that the distinction is one of substance and not of form, and the proceedings in the nature of a local assessment, alleged by appellee, fail to show compliance with conditions precedent, without which a charge imposed under the police power cannot be enforced against the lot or against the owners.

II. Whatever may be the rule as to the validity of a local assessment without opportunity offered to contest the same, or as to the necessity for notice of the assessment, where neither charter or ordinance required personal notice, a charge under the police power for the cost of constructing a sidewalk in front of the lot is based on the idea of a duty required of the owner by reason of his relationship to the property and to the public; and personal notice, not of assessment, but notice to construct, is a condition precedent without which neither the owner or his property can be charged.

III. That the ordinance providing for an assessment against each lot or fractional lot of “its proper or pro rata portion of the cost of the filling, raising, curbing and paving” of “each sidewalk in each separate block,” is repugnant to the provision of the charter directing that “the cost of the construction of sidewalks shall be defrayed by the owners of the lot or part of lot or block fronting on the sidewalk.”

IV. That the charter imposed upon the city the duty of ascertaining the exact cost of the work in front of each lot; and that the city, by accepting bids of contractors to do the filling, raising, curbing and paving, for bonds of said city, instead of providing for cash bids, has rendered it impossible to ascertain the exact cost; that a quantum meruit cannot be sustained, and the city cannot recover.

V. The exception in the constitution by which a forced sale of the homestead for the “taxes assessed thereon” is permitted, cannot be extended by construction to include either local assessments or charges under the police power for construction of sidewalks.

VI. That limitation runs against a municipal corporation; that the liability for the cost of sidewalks is made by the statute a personal charge against the owner of the abutting lot, and the statutory charge thus created is analagous to a debt evidenced by a specialty, or other contract in writing, and is barred by the statute of four years.

… X. If our view, that the construction of the sidewalks under the charter is a duty required of the lot owner under the police power, is sustained, argument to show that the permission conveyed in the constitution to sell the homestead at forced sale for the assessed “taxes thereon” does not authorize a sale to enforce the collection of the cost of sidewalks, is unnecessary--the charge being in no sense a tax assessed on the property, and the power to prescribe penalties for the non-performance of the duty enjoined affording ample means for enforcing the provision of the charter that the owner of the lot shall pay for his sidewalks.

Even should it be held that the charter authorizes a local assessment, we submit that the authorities in our own state, as well as those of other states, hold that the general provisions of the constitution on the subject of taxation do not apply to local assessments. The word “taxes” used in this section of the constitution refers to the exaction from the citizen or from his property of that portion of his property which he in common with other citizens is required to contribute to the support of the government.

We submit that the reason of the exception in favor of “taxes assessed” on the homestead is obvious, and that it is because taxes are necessary and indispensable to the support of the government. This exception was made to avoid any curtailment of the means of support essential to the existence of the state. But while local assessments are sustained under the taxing power, they are not founded upon necessity; they are made, as stated by Cooley (p. 416), “upon the assumption that a portion of the community is to be specially and peculiarly benefited in the enhancement of the value of property peculiarly situated as regards a contemplated expenditure of public funds.” This author also states that “the idea that the...