Frosh v. City of Galveston , 73 Tex. 401 ( 1889 )

Henry, Associate Justice.—

The city of Galveston instituted this suit March 24, 1888, to enforce an alleged assessment and lien under its charter against the north half of lot 14, block 382; lot 1, block 262; and lot 14, block 202, for one-third of the cost of grading, filling, and paving of Twenty-third or Tremont Street in said city, between Avenues F and K, and abutting on said lots. The defendant Jane L. Frost presented general and special demurrers to plaintiff’s petition, which, were overruled by the court. Defendant excepted to the rulings, and upon the trial before the court without a jury defendant objected to the rulings of the court in the admission and exclusion of evidence, saving the points by bills of exceptions. The court on motion of defendant filed conclusions of law and facts, and rendered judgment of foreclosure and sale of the said lots for the amounts claimed by plaintiff, providing that no execution over should issue against defendant if said lots should not sell for enough to satisfy the amounts respectively adjudged against them. Defendant excepted in open court to the conclusions of the law and facts-to the judgment, gave notice of appeal, assigned errors, and perfected her appeal.

The charter of the city contains the following provisions:

“Section 127. The city council shall be invested with full power and authority to grade, shell, 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 elected they may deem, such improvement for the public interest; provided, the city council pay one-third and the owners of the property two-thirds thereof, except the-intersection of the streets from lot to lot across the streets either way shall be paid by the city alone. Said two-thirds of said cost to be paid by the owners of the property fronting on said thoroughfare shall be assessed on or against said property, and collected by the city whenever such improvement is completed and accepted by the city council; provided further, that, not more than twenty thousand superficial yards of such thoroughfares shall be filled, graded, and shelled, or filled, graded, and paved, in any one year.

“ Section 128. That the city council before beginning any such improvements shall, for the purpose of acquiring the most reliable information practicable of the probable cost thereof, cause an estimate to be made of said probable cost by the city engineer, or by some other officer of the city, or by a committee of aldermen, and such officer or committee shall also report a full list of all fronting lots or fractional lots, with number and size of same and number of block in which situated, and the names of the owners thereof, and such other information as may be required by the city council; and if there be any lot or fractional lot the owner whereof is not known the same shall be entered on said list as unknown; and said officer or committee shall enter in said list, opposite each lot or fractional lot lying and being on each side of the street, avenue, or alley, the improvement whereof is contemplated, one-third of the estimated expense of such Avork or improvement on such avenue, street, or alley fronting, adjoining, or opposite such lot or fractional lot. Upon consideration of said report of said officer or committee the-council shall determine whether' or not the said work or improvement, shall be made, and shall proceed accordingly. When said work or improvement is ordered by the council and shall have been completed the-council shall cause an accurate report of the cost thereof to be made by said officer or committee. As part of said report said officer or committee shall ¡Dresent a list of the lots or fractional lots lying and being on each side of the street, avenue, or alley so improved, and upon such list of lots or fractional lots shall be entered opposite each lot or fractional lot one-third of the actual cost and expense of such Avork or improve-ment on said avenue, street, or alley fronting, adjoining, or opposite such lot or fractional lot; and upon the acceptance and approval of said report and list by the city council said amounts shall be imposed, levied, and assessed by the city council on said lots or fractional lots respectively, and collected by the collector, and shall be a lien upon the property until paid.

“ Section 129. That after such action on the part of the city council as above provided for, the collector shall give notice as may be required by ordinance of said assessment being due and within what time payable, and shall commence forthwith to collect the same; that after the expiration of the period for the payment of. said assessment said officer shall levy on so much of any property on said list on which said assessment has not been paid as will be sufficient to pay the same, and the same notice of sale as is required in sales for taxes shall be given. And if said assessment is not paid before the day of sale said officer shall sell said property in the manner and under the circumstances and to the extent and subject to the same conditions which are or may be provided by ordinance for the sale of real estate in the city of Galveston charged with the payment of taxes imposed by said corporation, and said officer shall execute a deed to the purchaser at any such sale, and the provisions of this act in reference to a deed drawn by the collector for taxes shall apply to the deed provided for in this section.

“Section 130. That in addition to the power and authority granted to the city council to collect said assessments as aforesaid they shall have the further and additional remedy of instituting suit in the corporate name in any court having jurisdiction for the recovery against any owner of said property for the amount due for any such work so made as aforesaid, and the city council shall provide by resolution or ordinance under the provisions of this act for carrying out and executing the powers in this title conferred, and may adopt such resolutions and enact such ordinances and make such regulations as they may deem necessary.”

The following ordinances were adopted by the city council to carry into efiect said charter provisions:

“ Section 1. That no street improvement by grading and shelling or paving shall be undertaken until the city council has, by special resolution or ordinance, defined the street or streets so to be improved, also the particular kind of improvement to be made, whether by filling, grading, shelling, or paving; and in all such proposed improvements two-thirds of the aldermen elected shall concur.

“Section 2. When any improvement of a street, avenue, or alley has been determined upon in the manner provided for in the foregoing section, it shall then be the duty of the city engineer to make a careful survey of the street or streets so to be improved, and he shall also make a careful estimate of the cost of such improvement, and shall estimate two-thirds of the probable cost of such work against the real property immediately adjoining and being on either side of such street or streets, not counting the intersection of streets; and the estimates so made shall be returned to the city council on rolls, and such rolls shall define the number of the lot or part of lot, and also the number of block or blocks, and shall give, in detail, the name of the owner or owners of such lots or parts of lots, if to be ascertained, together with the sum so estimated against each lot or part of lot, and if there be any lot or fractional lot the owner whereof is not known, the same shall be entered on said list as unknown, and said officer or committee shall enter in said list opposite each lot or fractional lot lying and being on each side of the street, avenue, or alley, the improvement whereof is contemplated, one-third of the estimated expense of such work or improvement on such avenue, street, or alley fronting, adjoining, or opposite such lot or fractional lot; upon consideration of said report of said officer or committee the council shall determine whether or not the said work or improvement shall be made and shall proceed accordingly. When said work or improvement is ordered by the council, and shall have been completed, the council shall cause an accurate report of the cost thereof to -be made by said officer or committee. As part of said report, said officer or committee shall present a list of the lots or fractional lots lying and being on each side of the street, avenue, or alley so improved, and upon such lists of lots or fractional lots shall be entered opposite each lot or fractional lot one-third of the actual cost and expense of such work or improvement on said avenue, street, or alley fronting, adjoining, or opposite such lot or fractional lot; and upon the acceptance and approval of said report and list by the city council, said amounts shall be imposed, levied, and assessed by the city council on said lots or fractional lots respectively, and collected by the collector, and shall be a lien upon the property until paid.”

On the 24th day of May, 1886, the city council adopted the following resolution:

“Be it resolved by the city council of the city of Galveston, That Twenty-third Street (or Tremont Street) from the north side of Avenue F to the north side of Avenue K be improved by filling, grading, and paving with cypress blocks, and for this purpose the city engineer be required to make a survey and estimate of the cost of the same in accordance with section 2, article 2, chapter 2, of the Revised Ordinances.”

It appears that after the adoption of said resolution and on the same day the city engineer made the required report, showing among other things that- appellant was the oxvner of the lots involved in this suit fronting on Twenty-third Street within the limits to be improved, and the estimated cost of paving chargeable to said lots.

The improvement was subsequently made under a contract with the city; and the proportion of the cost thereof assessed against appellant having been demanded of her and its payment refused, this suit was brought.

The charter of the city clearly requires that before the council shall determine whether or not the improvement shall be made a report shall be made of its probable cost, etc.

This report is made a condition precedent to the exercise of the power to order the work to be done. Its design is to furnish useful and proper information expressly required to be considered when the determination of the council is made, and being made by the law a condition precedent to the exercise of the power it can not be disregarded either by the council or the court, nor can either the one or the other regard the requirement as immaterial or treat it as merely directory.

It is certainly not less important in public than it is in private enterprises to learn the cost of any improvement before it is entered upon.

The cost of the improvement as estimated by the preliminary inquiry has nothing to do with paying for it, as that must be done according to its actual and not its estimated cost. The sole and we think the sufficint reason for estimating carefully the probable cost before the xvork is ordered, and having the information laid before the council, is to enable them to say whether the necessity and importance of the work justifies the expenditure, as may not always be the case, or whether the always limited pecuniary resources of the city will be sufficient for the discharge of the debt. This would be a prudent thing to do, even if the law did not expressly enjoin it.

In this instance the required report had not been made, nor had the evidence required by the law as a predicate for the judgment of the council been produced. Instead of that, the judgment was first pronounced, including a direction for the facts to be ascertained and reported afterwards.

An important question in this case is whether it was not necessary as a condition precedent to its power to order the improvement, for the council by a separate vote to declare that they “ deemed such improvement for the public interest.” As the cause must be reversed xxpon the ground referred to above, which will probably be conclusive of this controversy, we do not deem it necessary now to decide the last named issue.

We think it proper to say, however, that there is sufficient doubt about the proper construction of the charter to make it prudent for such vote to be taken, and thus avoid an uncertain contention as to its proper interpretation.

Other objections to the judgment of the District Court are assigned, but their decision not being necessary for the disposition of this case we think it unnecessary to discuss them.

In the exercise of the taxing power by municipal corporations “the authority conferred is to be strictly construed and must be closely followed.” Sedgw. on Stat. and Const. Law, 397.

The judgment is reversed and the cause remanded.

Reversed and remanded.

Delivered March 26, 1889.