Holt v. Uvalde Co. , 258 S.W. 285 ( 1923 )

On Motion for Rehearing.

Plaintiffs in error insist that their liability was adversely affected by reason of the delayed execution of the paving certificate sued on, which, although dated April 14, 1921, was not actually executed by the mayor and city clerk until June 15th following. It was stipulated in the certificate that the installments of the assessment against the Holts for the paving should be “all payable after the 14th day of April, 1921, being the date when said work was accepted by the city; the first being payable in 30 days, the second in one year,” etc., with interest “from said date.” This would make the first payment’ due May 14th, or, as plaintiffs in error point out, 30 days before the certificate was fully vitalized by the signatures of the city officials. The essential fact is, however, that the date of .maturity of the first installment was fixed in the certificate at 30 days from the acceptance of the paving work by the city engineer, which, as recited in the certificate, was April 14th. The whole proceedings were had, and the certificate was issued, in accordance with an ordinance passed on July 12, 1920, and with the contract between the city and the paving company. The maturity of the obligation, then, was controlléd, not by the date of the certificate, but by the acceptance of the completed work by the city, and the delay, in executing the certificate, theretofore provided for by ordinance and contract as the evidence of the obligation, had no effect whatever upon plaintiffs in error’s liability. McQuillin, Mun. Cor. § 2293; Morrill v. Smith County (Tex. Civ. App.) 33 S. W. 899; Moller v. Galveston, 23 Tex. Civ. App. 693, 57 S. W. 1116.

Much has been said of the fact that the paving certificate was not executed by Mr. Bell, who was mayor at the date of the certificate, but by Mr. Black, who was not mayor at that date, but who succeeded Mr. Bell a few weeks later, and then executed the instrument which had theretofore been fully authorized by ordinance. We think this circumstance is, within itself, wholly immaterial. The law looks at the mayor as an official, and not as an individual, and does not concern itself with the identity of the individual who performs the official duties, so long as he is clothed with the official authority and power at the time he acts. Written contracts or other evidences of the obligations of the municipality should be executed by the designated officials who are actually in office at the time the instruments are signed and delivered, even though, such contracts are authorized by ordinances or resolutions passed during a previous administration, when the offices were occupied by others whose terms expired between the acts of authorization and the acts of signing and delivering. Dillon, Mun. Oor. §§ 888, 889; Coler v. City of Cleburne, 131 U. S. 162, 9 Sup. Ct. 720, 33 L. Ed. 146. Of course, under the protection of this rule, those instruments may not be falsely dated for the purpose of evading a law, or defeating, enlarging, or altering the liability or rights of the parties.

Vigorous complaint is made by plaintiffs in error of our holding with reference to the provisions of article 1015, R. S., limiting the property owner to 20 days within which to bring suit to set aside or correct paving assessments, or question the validity of the proceedings under which the assessments are made. Plaintiffs in error construe this holding to mean that-by this provision the property owner is cut off, after 20 days, from urging as a defense to an assessment that the work has not been properly done by the paving contractor. We did not so hold. We simply held that under that statute the property owner is limited to 20 days within which to bring suit to attack the validity of the assessment proceedings, as such. We said and meant nothing about the application of this limitation to the defense of failure of the contractor to do the work in accordance with the contract therefor. Such defense is available, if at all, without reference to that limitation, and, subject to appropriate general rules of limitation, may be urged at any time against the suit of the contractor for the amount of the assessment.

Plaintiff's in error’s motion for rehearing is overruled.