City of Tyler v. Cain , 1918 Tex. App. LEXIS 648 ( 1918 )

Unless such action was demanded by the decision of the federal Supreme Court in Village of Norwood v. Baker, 172 U.S. 269, 19 S. Ct. 187,43 L. Ed. 443, or the decision of the Supreme Court of this state in Hutcheson v. Storrie, 92 Tex. 685, 51 S.W. 848, 45 L.R.A. 289, 71 Am. St. Rep. 884, the demurrers to the appellant's petition should not have been sustained; for before those cases were decided it had been determined by the Supreme Court of this state, in conformity to the view generally prevailing, that the Legislature might authorize a municipal corporation to charge the owner of a city lot with the cost of constructing a sidewalk in front of same, without reference to whether the lot was benefited by the improvement or not. City of Galveston v. Heard. 54 Tex. 420; City of Galveston v. Loonie, 54 Tex. 517; Highland v. City of Galveston, 54 Tex. 527; Adams v. Fisher, 63 Tex. 651; Adams v. Fisher, 75 Tex. 657, 6 S.W. 772. "The power of the Legislature," said the Supreme Court in the Adams Case, 63 Tex. 656, "to impose upon the owner of a lot in a town or city the burden of making or improving sidewalks in front of his lot is very generally recognized."

We do not think the decision in either the Village of Norwood Case or the Hutcheson-Storrie Case requires a departure from the rule applicable before they were decided to cases like this one; and therefore we are of the opinion the trial court erred when he sustained the demurrers to appellant's petition and dismissed its suit.

In the case decided by the federal Supreme Court the village of Norwood, in extending a street across land belonging to Mrs. Baker, took $2,000 worth of the land. In the exercise of power conferred by the Legislature the village then assessed back, upon land belonging to Mrs. Baker fronting on the street as opened, the $2,000 it paid her for the land it took for the street, and in addition thereto $218.58 as the expense it incurred in taking it. The result of this mode of procedure, as pointed out by the Supreme Court of Missouri in Heman v. Allen,156 Mo. 534, 57 S.W. 559, was that the village of Norwood got the part of Mrs. Baker's land it needed for a street for nothing, "and charged her $218.58 for taking it." The federal Supreme Court held that the attempt of the Legislature to confer power on the village to do that was violative of the clause in section 1 of the Fourteenth Amendment to the federal Constitution set out in the statement above, and affirmed the judgment of the circuit court, holding the assessment against Mrs. Baker void, "upon the ground," it was stated —

"that the assessment against the plaintiff's abutting property was under a rule which excluded any inquiry as to special benefits, and the necessary operation of which was, to the extent of the excess of the cost of opening the street in question over any special benefits accruing to the abutting property therefrom, to take private property for public use without compensation."

In Hutcheson v. Storrie it appeared that the city of Houston, by virtue of authority conferred by its charter, had assessed against a tract of about 20 acres of land and some other lots, situated in a sparsely settled portion of the city and belonging to Mrs. Hutcheson, the cost of paving the part of the Harrisburg road on which said land and other lots abutted. The Supreme Court of this state, on the theory that the Supreme Court of the United States had held in the Village of Norwood Case that the Legislature of a state cannot confer upon a municipal corporation authority "to assess upon abutting property the cost of a public improvement in a sum materially exceeding the special benefits which that property may derive from the work," nor authority "to make such assessment conclusive upon the owner without giving an opportunity to contest the question of benefits," held that the charter of the city of Houston, so far as it purported to confer such authority, was violative, not only of said clause in section 1 of said Fourteenth Amendment, but also of sections 17 and 19 of article 1 of the Constitution of this state, set out in the statement above, and accordingly held the assessment made against Mrs. Hutcheson's property to be void.

The value of the Village of Norwood Case as authority has been greatly weakened by later decisions of the federal Supreme Court. French v. Barber Asphalt Paving Co., 181 U.S. 324, 21 S. Ct. 625, 45 L. Ed. 879; Wight v. Davidson, 181 U.S. 371, 21 S. Ct. 616, 45 L. Ed. 900; Town of Tonawanda v. Lyon, 181 U.S. 389, 21 S. Ct. 609, 45 L. Ed. 908; Webster v. City of Fargo, 181 U.S. 394, 21 S. Ct. 623, 45 L. Ed. 912; Cass Farm Co. v. City of Detroit, 181 U.S. 396, 21 S. Ct. 644, 45 L. Ed. 914; City of Detroit v. Parker, 181 U.S. 399, 21 S. Ct. 624, 45 L. Ed. 917; Chadwick v. Kelly, 187 U.S. 540, 23 S. Ct. 175, 47 L. Ed. 293; Railway Co. v. Barber Asphalt Paving Co., 197 U.S. 430, 25 S. Ct. 466, 49 L. Ed. 819. The authorities on the question, including the Village of Norwood Case, were reviewed in the opinion of the court in the first one of the cases just cited. The court stated that the ruling in the Village of Norwood Case had been misunderstood, and strongly intimated that the holding in that case was justified by its peculiar facts alone, and that it should not be regarded as authority for determining cases with different facts. As a result of the careful consideration given the question, the court held, quoting the syllabus:

"The apportionment of the entire cost of a street improvement upon the abutting lots according to their frontage, without any preliminary hearing as to benefits, may be authorized by the Legislature, and this will not constitute a taking of property without due process of law."

Based, as it was, entirely on the Village of Norwood Case, the force of Hutcheson v. Storrie as authority also is, of course, weakened by the ruling in the later cases decided by the federal Supreme Court, cited above, and it has been suggested, with good reason, we think, that it, too, should be limited to its particular facts. Texas Bitulithic Co. v. Abilene Street Ry. Co., 166 S.W. 437; and see Lentz v. City of Dallas,96 Tex. 258, 72 S.W. 59; City of Harrisburg v. McPherran, 200 Pa. 343,49 A. 988; King v. City of Portland, 38 Or. 402, 63 P. 2, 55 L.R.A. 812.

But, whatever view may be taken of the Village of Norwood Case, when the question is as to the power of the Legislature to authorize a municipal corporation to charge the cost of opening a street against the owner of the land taken for the street, or of the Hutcheson-Storrie Case, when the question is as to the right of the Legislature to confer upon a municipal corporation power to charge against the owners of lots abutting on it the cost of paving a street, we think the act of the Legislature, conferring upon the city of Tyler power to charge against lots abutting on a street the cost of building a sidewalk in front thereof, was referable to its police power, and therefore was not violative of either the clause in question of the federal Constitution or sections 17 and 19 of article 1 of the state Constitution. Black's Constitutional Law, § 156; Cooley on Taxation, 1128. In the work last cited Judge Cooley said:

"The cases of assessments for the construction of walks by the side of the streets in cities and other populous places are more distinctly referable to the power of police. These footwalks are not only required, as a rule, to be put and kept in proper condition for use by the adjacent proprietors, but it is customary to confer by municipal charters full authority upon the municipalities to order the walks of a kind and quality by them prescribed to be constructed by the owners of adjacent lots at their own expense, within a time limited by the order for the purpose, and, in case of their failure to so construct them, to provide that it shall be done by the public authorities, and the cost collected from such owners or made a lien upon their property. When this is the law the duty must be looked upon as being enjoined as a regulation of police, because of the peculiar interest such owners have in the walks, and because their situation gives them peculiar fitness and ability for performing, with promptness and convenience, the duty of putting them in proper state, and of afterwards keeping them in a condition suitable for use. Upon these grounds the authority to establish such regulations has been supported with little dissent. No doubt this requirement is sometimes in a measure oppressive, since the actual cost may exceed the pecuniary advantage to the lot owner; but this, in the case of police regulations, is never a conclusive objection."

The judgment is reversed, and the cause is remanded for a trial on its merits.