Simms v. City of Mt. Pleasant , 12 S.W.2d 833 ( 1928 )

HODGE'S, J.

Tbe city of Mt. Pleasant was incorporated under tbe general laws of Texas. Some time prior to 1919 tbe city adopted tbe provisions of chapter 11, tit. 22, of tbe Revised Oivil Statutes of 1911, now articles 1086 to 1096, inclusive, of tbe Revised Oivil Statutes of 1925. On September 7, 1927, tbe city passed an ordinance providing for paving several of its streets and for tbe construction of curbs and sidewalks. Tbe appellant, Miss Nettie Simms, owns a lot abutting on one of tbe streets to be paved. Tbe ordinance provided that tbe abutting property owners should pay tbe entire cost of tbe curbs and sidewalks and two-tbirds of tbe cost of tbe paving, including street intersections. Tbe city was to pay that portion of tbe remainder not assessed against using tbe streets. Tbe ordinance also provided that tbe cost assessed against abutting property owners should be evidenced by certificates, payable in five installments. A second ordinance was passed about tbe same time, awarding to O. 1⅛ Origer, one of tbe appel-lees, the contract for making tbe improvements contemplated. Tbe second ordinance also provided that tbe amount payable by tbe city should be paid in interest-bearing warrants as tbe work progressed, and on estimates made by tbe city engineer. Tbe amount was limited to $10,000, and tbe warrants were to be issued in denominations of $500 each. Tbe first warrant was to be due November 1, 1929, and one warrant should mature annually thereafter for a period of 19 years. Other ordinances were passed, providing for a tax levy to create an interest and sinking fund for tbe retirement of tbe warrants at maturity and making individual assessments against tbe abutting property owners. This suit was filed by tbe appellant to cancel tbe ordinances above referred to and tbe contract entered into by the city with O. L. Origer. The trial before tbe court without a jury resulted in a judgment against tbe appellant.

The record before us contains several assignments of error, which for tbe.purpose of this appeal may be considered as presenting two general objections to the judgment of the trial court. In one group of assignments it is contended that tbe amount assessed against tbe appellant as an abutting owner was excessive and was fixed by tbe council without first giving proper legal notice. In the other group an attack is made on tbe validity of tbe ordinances, upon tbe ground that the city had no authority to issue interest-bearing warrants payable in future years without first having submitted that question to tbe qualified voters of tbe city.

Tbe objection to tbe amount of tbe appellant’s assessment and tbe irregularity of the proceedings upon which that assessment was based was barred by article 1096, Rev. Giv. Stat. of 1925. That article provides that any property owner against whom, or whose property, an assessment or reassessment has been made, shall have tbe right to bring suit within 20 days thereafter to set aside or correct tbe same or any proceeding thereof on account of any error or invalidity therein. It further provides that thereafter such owner, bis heirs, assigns, or successors shall be barred from bringing such an action.

Passing to tbe second objection, it may be said that even if tbe city exceeded its authority in providing for tbe issuance of the interest-bearing warrants without tbe consent of tbe electors, this court cannot grant tbe character of relief which the appellant seeks — that is, tbe cancellation of tbe alleged invalid ordinance. Tbe adoption of a city ordinance by tbe governing body of a city is, like tbe enactment of a law by tbe ¡Legislature of tbe state, an exercise of legislative power. Courts have no power to cancel such acts, but may, under certain conditions and at tbe instance of an aggrieved party, restrain their enforcement. However, such judicial authority can only be exercised when essential to tbe protection of some particular personal or property right. Courts have no general power to nullify legislative acts, and can inquire into their validity only as an incident to tbe power to prevent a private injury.

If tbe ordinances attacked in this proceeding are invalid tbe appellant may, in a proper suit, restrain their enforcement when that becomes necessary for her protection from an existing or threatened private injury. No such relief as' that is sought in this proceeding. This case is, in all material respects, similar to tbe case of Tabb v. City of Mt. Pleasant, 12 S.W.(2d) 831, this day decided by this court. In tbe opinion written by Chief Justice Willson in that ease can be found appropriate authorities relating to: the question here involved.

Tbe judgment of tbe trial court will be affirmed.