Sayles v. City of Abilene

• Decision Date: 02 June 1917
• Docket Number: (No. 8742.)
• Citation: 196 S.W. 1000
• Parties: SAYLES et al. v. CITY OF ABILENE.
• Court: Texas Court of Appeals

196 S.W. 1000

SAYLES et al. v. CITY OF ABILENE.

(No. 8742.)

Court of Civil Appeals of Texas. Ft. Worth.

June 2, 1917.

On Motion for Rehearing, July 2, 1917.

Appeal from District Court, Taylor County; Joe Burkett, Judge.

Injunction by Hattie Sayles and others against the City of Abilene. From an order dissolving the temporary injunction, plaintiffs appeal. Affirmed. On motion for rehearing. Motion overruled.

Sayles & Sayles, of Abilene, for appellants. Hickman & Whitten, of Abilene, for appellee.

BUCK, J.

This is a suit to enjoin the city of Abilene from performing a pavement contract. Plaintiffs alleged that they were the owners of 140 feet abutting on the section of the street sought to be paved by the city, and that under the resolution and ordinance providing for such pavement, and under the custom prevailing in said city of Abilene with reference to paving, it was intended and contemplated that the intersections of the street planned to be paved with another street and an alley should be paid for by the city; that such paving constituted a permanent improvement, and that the city had no funds with which to pay for such improvements, and had not, by ordinance or otherwise, provided for the payment of the indebtedness thus to be created; that under the statutes and the Constitution of the state, and under the special charter granted by the Legislature, the city could not lawfully create a debt for such purposes without having first provided for the payment thereof.

Defendant answered by general demurrer and special exceptions, by general denial, and by the special denial of the allegation of the plaintiff that it was proposing or contemplating the creation of a debt, and alleged that the payment for such portion of the improvement as the city had promised to pay for and was contemplating paying for was to be made in cash immediately upon the completion of the work, and that the city had ample funds out of which such payment could be lawfully and properly made. An appeal was taken by plaintiffs from an order of the court dissolving the temporary injunction theretofore granted.

Briefly, giving full effect, as it is our duty to do, to the testimony in favor of the judgment, the evidence shows that the fiscal year of 1916-17 began May 1, 1916, at 12:01 a. m.; that the total assessed valuation of all property within the limits of the city of Abilene was $6,000.000; that the city by its charter is authorized to levy and collect for all purposes a tax not to exceed $1.60 on every $100 assessed valuation; that it is authorized to levy and collect a tax not to exceed 25 cents on the $100 valuation for the purpose of making permanent street improvements and in providing for the interest and sinking funds of the bonds of said city for such purposes; that by ordinance the city had levied a tax for all purposes of $1.41 on each $100 valuation, out of which it had provided 40 cents for current expenses, 15 cents for the support and maintenance of the roads, streets, and bridges within the city limits, and 10 cents for the permanent improvement of the streets and highways within said city. It was also authorized to levy and collect a poll tax of $1 upon each citizen not exempt therefrom for said last-named purpose. By resolution dated January 11, 1917, the board of commissioners of said city had provided for the paving of North Second street from the east line of Walnut street to the east line of Pine street with asphalt macadam, the cost of the paving of the intersections, one street and one alley, to be paid for by the city, the balance to be adjudged against the abutting property owners. The payment by the city for said paving was to be made on estimates furnished by the city engineer, 15 per cent. of each estimate to be held back until the completion of the work and its acceptance by the city. By resolution of same date the city adopted the specifications prepared by the city engineer and ordered advertisements for sealed bids. On January 27, 1917, the bid of W. W. Middleton for the paving at $1.18½ per square yard was accepted, and the contract was authorized. On the same date a resolution was passed providing for notice to abutting property owners; the date of the hearing being set for March 1, 1917. Notice under this resolution was given petitioners January 29, 1917. Petition for injunction was filed February 10, 1917. The intersections which the city agreed to pave measured 540 square yards, at the agreed price amounting to $639.90. On January 11, 1917, there was an overdraft against the permanent street improvement fund of $5,615.59, and there was an outstanding note against this fund of $1,187. About 7 per cent. of the 1916 taxes remained delinquent at the time of the trial, February 26, 1917. A note for $87.50 was payable to the city for the benefit of this fund. At the time of the trial the overdraft against this fund had been reduced by the collection of taxes, etc., to $1,759.92. As to the general fund for the payment of current expenses, on January 11, 1917, there was an overdraft of approximately $6,500. The balance to the credit of this fund at the time of the trial was $7,397.31. This change occurred by reason of the collection of taxes, payment of fines, etc. There were two permanent improvement bond funds to take care of two issues of bonds. Each showed a balance sufficient to take care of the interest and sinking fund provided for in the issuance of the bonds. The delinquent taxes due from 1911 to 1916, inclusive, amounted to $1,090.08. The balance on hand January 11, 1911, to the credit of the street and bridge fund, by which term the funds appropriated for current repairs was designated, was some $1,150, and at the time of the trial it was $7,727.94. The contract price for the entire paving amounted to $2,500, of which Taylor county had agreed to pay, but had not paid at the time of the trial, the sum of $1,000. This amount, when paid, was to be credited to the permanent improvement fund.

Though we have recited the substance of all the evidence introduced, yet we are of the opinion that much of it has no bearing upon the issues presented in this appeal. Plaintiff below alleged that, if the contract for paving was permitted to be performed, a debt would be created to pay which no provision has been made by the city at the time of the making of the contract, and no tax levied or fund set apart for that purpose; that hence such debt would become a charge against the petitioners and the other taxpayers of the city of Abilene. This allegation seems to be the only one relied upon by plaintiffs as a ground for invoking the equitable powers of the court. But the evidence fails to show any immediate intention, or even remote purpose, of the board of commissioners of the city of Abilene to increase the rate of taxation in order to provide funds with which to pay for the paving for which contract had been made; indeed, the record contains no evidence to support this allegation. In fact, the whole trend of the defendant's evidence is to the effect that no such steps would be made necessary by reason of the contract made for the obligation created. On the contrary, it was attempted to be shown, and we are not prepared to say that the attempt was not successful, that ample funds were available for this purpose.

The inhibition in article 11, § 5, of the state Constitution, to the effect that "no debt shall ever be created by any city unless at the same time provision be made to assess and collect annually a sufficient sum to pay the interest thereon and creating a sinking fund of at least two per cent. thereon," and a similar inhibition in article 4, § 4, of the charter of Abilene, do not, in our opinion, prohibit a city's contracting either for repairs to or for permanent improvements of its streets, the same to be paid for at completion out of available funds then on hand.

We do not feel justified in concluding that the commissioners of the city would not be authorized to pay for this paving out of the street and bridge fund, which showed at the date of the contract to have available funds to its credit of some $1,150. But, irrespective of the question as to whether or not there were funds available at the time of the contract, or which would be available upon the completion of the...