DocketNumber: No. 8446.
Citation Numbers: 190 S.W. 757, 1916 Tex. App. LEXIS 1200
Judges: Conner
Filed Date: 10/21/1916
Status: Precedential
Modified Date: 10/19/2024
Frank Whitley instituted this suit against A. W. Gallahar in the district court of Palo Pinto county upon an improvement certificate issued by the city commission of the city of Mineral Wells to recover the sum of $122.08, and to foreclose an improvement lien declared by said city commission against a lot owned by the defendant and abutting on Hubbard street, in said city. The trial resulted in a judgment for the plaintiff, and the defendant has appealed.
The trial was before the court without a jury, and the judge filed conclusions of fact and law, which are before us. The findings of fact are substantially unassailed, and they are accordingly approved and adopted by us. Omitting facts deemed unnecessary to an understanding of our conclusion, it appears that the city of Mineral Wells is a municipal corporation situated in Palo Pinto c'ounty, Tex., duly incorporated and acting under and by virtue of a charter adopted on August 19, 1913, in accordance with section 5, art. 11, of the Constitution of Texas, as amended on November 5, 1912, and in accordance with an act of the Thirty-Third Legislature (Acts 33d Leg. c. 147); that the charter so adopted provides that the board of commissioners of the city shall have the right, by taking prescribed steps and following certain procedures, to order the improvement of any street, or streets, in the city by filling, grading, raising, or paving the same with any permanent and durable material, and to proceed to contract for the making of such improvements after advertisement for bids. The board of commissioners are given the right to charge not exceeding two-thirds of the cost of such improvements against the owners of such property as shall abut upon the streets improved, provided that such sum to be paid by the owners of such property shall not be in excess of the actual benefit of enhanced value resulting to each piece of property from such improvement. It is further provided that to secure the payment of the sum so contemplated to be paid by the individual owners the board of commissioners may create a lien against such abutting property, and fix the sum to be paid as a personal liability against the owners' thereof; that upon the-completion and acceptance of the work contracted to be done upon each street, the board of commissioners are given authority to issue to the contractor, upon his reguest, a certificate evidencing the indebtedness of each owner to the said contractor, setting forth due dates, rate of interest, and other particulars in connection with the indebtedness, and -stating that a lien had been created upon the property to secure the payment of the indebtedness described in the certificate. The charter also provides that:
“The lien or personal liability fixed by said assessment shall be enforced, together with costs of collection and reasonable attorney’s fees if incurred thereon, by suit in any court having jurisdiction.”
It further appears that the city of Mineral Wells, after having taken the steps prescribed in its charter, made and entered into a contract with the plaintiff, Whitley, to pave Hubbard street in front of the lot upon which it is sought to foreclose the lien herein and owned by the defendant. Due notice of the determination to pave the street was issued on November 11, 1914, and a date set for the hearing of the owners of the property on said street, stating the amount of the
“Whenever any error or mistake shall occur in any proceeding under this charter, it shall be the duty of the board of commissioners to correct the same, and whenever for any reason it shall appear that any assessment or claim or personal liability fixed or attempted to be fixed against any property or its owner hereunder is not enforceable on account of any error or invalidity in any of said proceedings, or the assessment of any property has been by error omitted, the board of commissioners shall have the power, and it shall be its duty at any time, to reassess against said property and its then owner the amount determined to be properly payable by said owner, after notice to and hearing of said owner in the manner hereinbefore provided. But no reassessment shall be made against any property in an amount in excess of special benefits thereto in enhanced value thereof by means of the improvement.”
The trial court concluded, as a matter of law that the reassessment was authorized, and entered up a judgment in favor of the plaintiff for said sum of $122.08, together with interest thereon at the rate of 8 per cent, per annum, and the further sum of $25 attorney’s fees, which the court found to be reasonable, and which, it seems, was authorized in terms both by the charter 'and by the certificate issued to the plaintiff. Judgment was rendered accordingly foreclosing the lien upon the defendant’s lot to secure the payment of the judgment, and the defendant has appealed.
The contention of appellant most urgently presented is that the trial court erred in concluding that the reassessment against appellant was authorized—
“for the reason that said reassessment was made long after the paving had been completed, and that there was nothing done thereafter to enhance the value of defendant’s property, and did not create any lien whatever against defendant’s property, nor a personal obligation to pay money against the defendant, and for the further reason that the charter does not provide for a reassessment after the work has been done on the street by the contractor.”
While the precise point seems not to have arisen before in our state, the weight of the authorities elsewhere, so far as we have been able to examine them, seems to be uniform in upholding the right of a municipality, when authorized by a statute, to make reassessments for beneficial improvements where for any reason a prior assessment, which might have been legally made, is invalid. Thus it is said in McQuillin on Municipal Corporations, vol. 5, § 2128:
“Statutes or charters generally provide that the municipal authorities may levy a new special assessment where the original assessment is declared void, and such laws have been adjudged to be constitutional. The evident purpose of laws authorizing reassessments is to provide for making reasonable assessments only where a valid assessment might have been made in the first place,” etc.
Authorities from a number of states in support of the text are cited. See, also, 28 Cyc. 1191, par. 22; Sudberry v. Graves & Stephens, 83 Ark. 344, 103 S. W. 728; 1 Page & Jones on Taxation by Assessment, § 414;
They may' have “exclusive dominion, control, and jurisdiction in, over and under the public streets, avenues, alleys, highways and boulevards and public grounds of such city, and to provide for the improvement of any public streets, alleys, highways, avenues or boulevards, by paving, raising, grading, filling or otherwise improving the same, and to charge the costs of making such improvement against the abutting property by filing a lien against the same, and a personal charge against the owner thereof, according to an assessment specially levied therefor in an amount not to exceed the special benefit that such property receives in enhanced value by reason of making any such improvement, and to provide for the issue of assignable certificates' covering the payment of said costs,” etc.
The findings show that these provisions relating to power were embodied in the charter of the .city of Mineral Wells, and the regularity of the proceedings in the first instance for the improvement of Hubbard street, upon which appellant’s lot abuts, is not questioned in any way, save that it appears that in the notice of the improvement and the contemplated assessment required by the charter a mistake was made in giving the initials. The notice required D. L. Gallahar, instead of A. W. Gallahar, as it should have been, to be and appear before the city commission. The property affected, however, was properly described, and it may be conceded, and is conceded, that the first assessment was invalid for the want of a proper notice; for it is well settled in this state, as well as elsewhere, that an assessment of the kind can in no case be made without proper notice of the contemplated assessment to the owner, and an opportunity given to him to resist it for any legal cause. Hutcheson v. Storrie, 92 Tex. 685, 51 S. W. 848, 45 L. R. A. 289, 71 Am. St. Rep. 884. The power to correct mistakes of the character noted was expressly embodied in the charter, and the proceeding under consideration wherein the mistake was sought to be corrected is not complained of in any respect as being irregular. Appellant was notified to be and appear before the city commission and afforded a full opportunity, either in person or by counsel, to show, if he could, that the improvement involved did not benefit his property, or that for some other reason no assessment should be made against him. The essence of the law seems to have been thus complied with. He had his day in court, and we cannot assume that, had any legal reason been shown why the assessment could not, or ought not, to have been legally made, the board of commissioners of the city would have imposed the assessment. The record affirmatively shows that appellant made no effort to contest the reassessment proposed. The charter also provides that within ten days after an assessment of the kind had been made an abutting owner might institute suit in the district court to set it a'side for any legal reason. The record fails to show that appellant instituted any such suit. On the contrary, it affirmatively appears that he did not do so, and on the present trial it does not appear that any effort was made on appellant’s part to show that his property was not in fact benefited by the improvement to the full extent of the assessment made by the board of commissioners. So that in no legal sense do we think it can be said, as appellant urges, that there has been a taking of his property in violation of section 17, art. 1, of our state Constitution.
We conclude that the judgment should be affirmed in all things except as to attorney’s fees, and the judgment will be so reformed as to exclude them, with the costs of appeal taxed against appellee.
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