Walton v. City of Houston, 4582
| Decision Date | 17 November 1966 |
| Docket Number | No. 4582,4582 |
| Citation | 409 S.W.2d 917 |
| Parties | Mrs. Ruby WALTON, a widow, Appellant, v. CITY OF HOUSTON, Appellee. . Waco |
| Court | Texas Court of Appeals |
Patterson, McDaniel, Moore & Browder, Bennett B. Patterson, Houston, for appellant.
William A. Olson, City Atty., City of Houston, Homer T. Bouldin, Trial Supervisor, Houston, for appellee.
Mrs. Walton, a widow, brought this action to restrain the City of Houston from the issuance, assignment, sale and transfer of certain paving certificates during the pendency of the suit and for judgment setting aside the assessments levied against her and her property in the city, by ordinance dated January 27, 1965, and prayed that the paving certificates issued or about to be issued be held null and void. On trial before the court, without a jury, the court found in favor of the city of Houston and entered a take-nothing judgment against Mrs. Walton, to which judgment she excepted and perfected her appeal to the Houston court, and the cause is here on transfer.
There was no request for findings of fact and conclusions of law, and none filed. Under the record all questions of law were expressly found in favor of the city. All questions of fact are impliedly found in favor of the city.
The judgment is assailed in what appellant contends constitutes 29 errors. Since the record is undisputed that the city made a contract with the State Highway Department to construct the paving in question and that the city paid therefor according to the contract price stipulated between in and the State Highway Department, and thereafter undertook to fix the proportionate part of the debt and lien against appellant and her property, we think the controlling question in this case is whether or not the city has followed the statutory requirements required of it to fix such debt and lien against appellant and her property.
As we understand this record, it is undisputed that the improvements made on the particular streets in question were not made by competitive bidders, and that the city paid the highway department as per its contract with it for such paving and thereafter undertook to fix a proper paving debt and lien against Mrs. Walton and her property. Under the Foregoing undisputed factual situation appellant contends that the paving certificates issued or to be issued are not only irregular, but void, because the debt and paving liens were not fixed by competitive bidding. Citing Bush v. City of Denton, Tex.Civ.App., 284 S.W. 251, (w. ref.). See also Breath v. City of Galveston, 92 Tex. 454, 49 S.W. 575; Vilbig Brothers v. City of Dallas, 127 Tex. 563, 91 S.W.2d 336, 96 S.W.2d 229. We overrule this contention for reasons hereinafter stated.
The record here shows that the city, acting by and through its City Council, after much study and consideration by its Planning Commission, Department of Public Works and other employees, decided to construct or have constructed the public improvement, which included the subject matter before us. The record also shows that the required ordinances, motions, hearing and other proceedings providing for and relating to such project were duly passed and held as provided by law; that the city, for practical reasons, made a contract and agreement with the State of Texas and the Texas Highway Commission for the construction of such project; that as a result the State entered into a contract for certain construction, including the subject matter, with the Century Construction Company; that such construction was completed and the City of Houston appropriated the sum of $171,800.00 for the construction of the city project. The record also reflects that the estimate letter submitted to the City Council estimated the cost of the improvements proposed to be assessed against the abutting property for the paving of Monroe Road from the Gulf Freeway to State Highway $3, was $41,000.00. (The evidence shows that Monroe Road is a street, and is within the corporate limits of the City of Houston). The City Council by ordinance closed the hearing and levied the assessments. As stated above, the total estimate costs for the Monroe Road project was $41,000.00, and of this amount the property owners were assessed the sum of $15,988.96, leaving the city to pay the balance of $25,011.04. This is shown by ordinance No. 64--1033, an ordinance which gives the estimated cost, and ordinance 65--141, which gives the actual assessments levied. (Appellant does not point out any irregularities as to the ordinances above referred to.) The city paid the state a total sum of $170,500.00 for the entire paving improvement project which the state had constructed for the City of Houston. Appellant contends that because the State of Texas, or the Texas Highway Department executed a contract with a contractor which included the paving project for the City of Houston, that it was illegal and, therefore, made invalid the paving assessment made by the city against the appellant and her property. This contention is overruled. See Article 1105b, Vernon's Ann.Tex.Civ.St.; also Glenn v. City of Arlington, (w. ref., n.r.e.) 365 S.W.2d 197, and cases there cited. The Arlington case cited is very similar to the factual situation here before us. The court in the Arlington case held in effect that since the City of Arlington was a Home Rule City, that it had jurisdiction to arrange and pay for the improvement of a portion of the state highway within its municipal boundaries and assess abutting property and owners for the cost thereof. That is the exact situation here before us, and we think the appellant has failed to point out any irregularities of the city in its action in the matter here before us. See City of Big Spring v. Board of Control, 404 S.W.2d 810, (Sp. Ct.) 39 Texas Jurisprudence 2d, Municipal Corporations, Section 308, pages 638--639. Moreover, it is well settled that the building and maintenance of streets by a municipal corporation is a proprietary function. See Lebohm v. City of Galveston, 154 Tex. 192, 275 S.W.2d 951; City of Austin v. Daniels, 160 Tex. 628, 335 S.W.2d 753, 81 A.L.R.2d 1180; City of Houston v. Glover, (w. ref., n.r.e.), Tex.Civ.App., 355 S.W.2d 757. The same rule applies to sidewalks. See Koonce v. City of Mesquite, Tex.Civ.App., 343 S.W.2d 557. The rule followed by the Texas courts has been followed by the Supreme Court of West Virginia in Sturm v. City of St. Albans, 138 W.Va. 911, 78 S.E.2d 462.
There was testimony to the effect that Monroe Road was not a state highway, but a...
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Walton v. City of Houston
...sought by Mrs. Walton and decreed that she take nothing against the respondent-defendant city. The Court of Civil Appeals affirmed. 409 S.W.2d 917. We reverse the judgments of the courts below and here render judgment in favor of Mrs. Walton and decree that the paving assessments levied aga......