Storrie v. Cortes

• Decision Date: 07 December 1896
• Citation: 38 S.W. 154
• Parties: STORRIE v. CORTES et ux.
• Court: Texas Supreme Court

38 S.W. 154

STORRIE v. CORTES et ux.

Supreme Court of Texas.

December 7, 1896.

Certified questions from court of civil appeals of First supreme judicial district.

Action by Robert C. Storrie against H. W. Cortes and wife to foreclose improvement certificate liens. From a judgment for defendants, plaintiff appealed. Questions of law arising on the facts certified, with a statement of the facts, by the court of civil appeals, to this court for decision.

Ewing & Ring, for appellant. E. P. Hamblen, for appellees.

BROWN, J.

The court of civil appeals for the First supreme judicial district has certified to this court the following statement and questions: "This cause, which is now pending before this court on appeal, was an action brought in the district court of Harris county by Robert C. Storrie, the appellant, against Henry W. Cortes and his wife, Mary M. Cortes, appellees, to foreclose an alleged lien of certain improvement certificates, of less amount than $500, upon the homestead of appellees, based on local assessments made for paving the street abutting on said homestead, pursuant to the provisions of the charter of the city of Houston, a city of more than 10,000 inhabitants. The contract for the paving of the street was let June 18, 1889, in accordance with the provisions of the charter of the city, and the assessment was made and the improvement certificates were issued in compliance with said charter, so as to make them a lien on the land, except for the fact that it was the homestead of appellees. Upon the trial below the court rendered judgment in favor of the appellees upon the merits, instead of dismissing the case. The following questions of law arise upon the facts, which are submitted to the supreme court for determination: (1) Should a lien be enforced, in favor of the appellant, against the homestead of appellees, for the amount of said improvement certificates, by reason of the fact that the contract for the pavement was made and performed before the decision of the supreme court in the case of Higgins v. Bordages [88 Tex. 458, 31 S. W. 52, 803]? (2) In case no lien should be enforced against the homestead of appellees, are they or the appellee Henry W. Cortes personally liable for the amount of the certificates?"

It is claimed by counsel for the appellant that the lien upon the homestead of appellees, attempted to be created by the action of the city council of the city of Houston, ought to be enforced in this case, notwithstanding the decision heretofore made by this court in the case of Higgins v. Bordages, 88 Tex. 458, 31 S. W. 52, 803, because the rights of the appellant under the contract made with the city of Houston accrued after the decision in the case of Lufkin v. City of Galveston, 58 Tex. 545, and before the decision in the case of Higgins v. Bordages. Two grounds are asserted upon which this court may and ought to sustain that lien, although its later decision upon the subject be maintained. It is claimed (1) that a correct application of the doctrine of stare decisis would leave the case of Lufkin v. City of Galveston in force as to all contracts made and rights accruing after it was made and before the rendition of the later decision which overruled it; (2) that the decision in the case of Higgins v. Bordages, in so far as it affects contracts made between the dates named, is violative of the obligation of such contracts, and is, therefore, not to be given effect as to them.

The rule of stare decisis was thoroughly considered by this court before it made the decision in Higgins v. Bordages, and also upon the motion for rehearing filed in that case. Recognizing the importance of standing by the former decision of the court as a general rule, we, however, determined that, in the circumstances of that case, it was the duty of the court to overrule the former decision of Lufkin v. City of Galveston. We have found no authority which attempts to apply the doctrine of stare decisis as is here sought, nor do we see any sound reason which would sustain such application of it. On the contrary, we think that the very foundation of the rule is antagonistic to the proposition now urged upon this court. If we stand by Lufkin v. City of Galveston, we must overrule Higgins v. Bordages, because it cannot be true that a case can be overruled and at the same time be held to be the law of the state in which it was rendered. 9 Am. Law Rev. p. 398.

The second ground requires more careful examination, although we think it equally untenable; but it has been supported by the citation of cases decided by the supreme court of the United States which demand our careful consideration. The doctrine here sought to be ingrafted upon the jurisprudence of this state originated in a dictum of Chief Justice Taney in the case of Insurance Co. v. De Bolt, 16 How. 432, in which he used the following language: "Indeed, the duty imposed upon this court to enforce contracts honestly and legally made would be vain and nugatory, if we were bound to follow those changes in judicial decisions which the lapse of time and the change in judicial officers will often produce. The writ of error to a state court would be no protection to a contract, if we were bound to follow the judgment which a state court had given, and which the writ of error brings up for revision here. And the sound and true rule is that, if the contract, when made, was valid by the laws of the state, as then expounded by all of the departments of the government and administered in its courts of justice, its validity and obligation cannot be impaired by any subsequent act of the legislature of the state or decision of its court altering the construction of the law." As we before stated, this was a dictum of Chief Justice Taney. Indeed, in the beginning of the opinion, he says: "In this case the judgment of the supreme court of the state of Ohio is affirmed; but the majority of the court who give this judgment do not altogether agree in the principles upon which it ought to be maintained. I proceed to state my own opinion, in which I am authorized to say my Brother Grier entirely concurred." It is thus seen that the expression quoted above was simply the opinion of the chief justice, concurred in by one of his associates, and upon a proposition which could not have been involved in the affirmance of the judgment, for in its very terms the proposition of law laid down could not have had reference to any other than the judgment then under consideration, which was affirmed. It is worthy of notice that so eminent a jurist should have thought it necessary to say that an appellate court was not bound by the judgment under review, in support of the proposition that the federal courts are not bound by decisions of state courts. In almost every case which followed this in the supreme court of the United States, as well as the cases in the state courts which follow them, the statement made by Chief Justice Taney has been made the basis for refusing to follow the decision of the state court when found to be antagonistic to what was thought to be the obligation of a contract made prior thereto. In no case decided by the supreme court of the United States, nor, do we believe, in any case decided by any state court, has it ever been held that a decision which overruled a former decision of the same court was obnoxious to the provision of the constitution of the United States, or of the state, which prohibits a state from enacting any law that violates the obligation of a contract. On the contrary, in every instance where the question has come before the supreme court of the United States in the exercise of appellate jurisdiction over the supreme court of a state, and in which the federal supreme court was confined in the determination of the question to definite constitutional and legal principles, it has been held that a decision of a court is not a law, within the provisions of the constitution of the United States. In the case of Land Co. v. Laidley, 159 U. S. 103, 16 Sup. Ct. 82, which involved the very question, the court said: "In order to come within the provision of the constitution of the United States which declares that no state shall pass any law impairing the obligation of contracts, not only must the obligation of the contract have been impaired, but it must have been impaired by some act of the legislative power of a state, and not by a decision of its judicial department only." The supreme court of the United States here recognizes the doctrine that the decision of a court is not a law, and does not come within the meaning of that word as used in the constitution of the United States. That eminent court has not unfrequently overruled its own decisions, but in no instance has it applied the same rule that is by it applied to like cases arising under overruled decisions of state courts.

The cases decided by the supreme court of the United States which bear upon this question may be classified as follows: (1) Those which hold that, where the contract was valid when made, under a statute recognized as valid by the officers of the different departments of the state government, such contract will be sustained, as against a decision of the highest court of that state declaring the law void, if made subsequently to the time when the contract was entered into. Pine Grove Tp. v. Talcott, 19 Wall. 666; Insurance Co. v. De Bolt, cited above; Olcott v. Supervisors, 16 Wall. 678. In the last case cited, the court, after quoting substantially what has been quoted from the opinion of Chief Justice Taney, said: "Such a rule is based upon the highest principles of justice. Parties have a right to contract, and they do contract, in view of the law as declared to them when their engagements are formed. Nothing can justify us in holding them to any other rule. If, then, the doctrine asserted in Whiting v. Fond du Lac County is inconsistent with what was the...