Carwile v. Childress

WIDLSON, C. J. (after stating the facts as above). It is conceded that, because appellee did not have notice of nor an opportunity to be heard in the proceedings resulting in the assessment against him covered by the certificate issued September 17, 1915, he was not bound by same. Therefore if the judgment in his favor is erroneous, as claimed by appellants, it must be because appellee Chil-dress was bound by the proceedings resulting in the reassessment covered by the certificate issued November 26, 1917. Whether he was bound by those proceedings depended (1) on whether the statute (to wit, chapter 11 of title 22 of the Revised Statutes with reference to street improvements) under which they were had was a valid one; (2) on whether the city of Terrell, having a right to do so, had theretofore duly adopted said statute; (3) or whether, said city having the right and having adopted said statute, was thereby empowered to reassess against appellee Childress a part of the cost of the street improvement in question ; and, if it was, (4) on whether the reassessment proceedings were in conformity to the requirements of said statute. [1] That a contention like the one in appel-lee’s brief, to wit, that the statute was invalid because an attempt by the Legislature to delegate its power to make laws to the voters of cities and towns, is not tenable, was determined by this court in Riley v. Town of Trenton, 184 S. W. 344, where Judge Hodges said: “In voting to adopt certain statutory provisions, the voters do not in reality adopt the law; they merely bring about a situation to which the law by its terms has been made applicable. The law is the finished product of the Legislature, and it only awaits the existence of the conditions to which by its terms it is made applicable in order to be enforced.” [2] The question made as to the right of the city of Terrell by a referendum vote to adopt said statute at the time it did adopt same, to wit, April 1, 1912, seems to -be predicated on the fact that it was then a city of more than 5,000 inhabitants, operating under a special charter. The amendment then in force <5f section 5 of article 11 of the Constitution declared that “cities having more than 5,000 inhabitants may have their charters granted or amended by special act of the Legislature,” etc. That the effect of such a declaration in the Constitution was not to deprive the Legislature of power to enact a general law applicable to the class of cities specified was determined by the Supreme Court in Werner v. City of Galveston, 72 Tex. 22, 7 S. W. 726, 12 S. W. 159. The act there in question was one authorizing cities and towns by a vote to take control of public schools within their respective limits. In disposing of a contention made in the case Judge Gaines said: “It is further claimed that the act is inoperative as to all cities having over 10,000 inhabitants, because of section 5 of article 11 of the Constitution, which provides that such cities ‘may have their charters granted or amended by special act of the Legislature.’ But we think it was not intended by this section to prohibit the Legislature from providing for the incorporation of such cities by general law, but to confer authority to grant special charters. We cannot presume that the framers of the Constitution meant to prohibit the lawmaking power from passing a general act in reference to a special matter which should apply alike to every municipal corporation in the state. No reason is seen for imposing any such restriction, and the prohibition will not therefore be implied.” [3] It Is not contended in support of the judgment that the city of Terrell did not attempt to adopt said statute. On the contrary, it is in effect conceded that an election was held in said city April 1, 1912, to determine whether the statute should be adopted or not, and that at that election a majority of the votes cast were in favor of adopting it. The contention with reference to this phase of the case was and is that the requirements of the law were not complied with in holding, the election, (1) in that “no notice thereof was posted other than a copy of the resolution” ordering it, and (2) in that said resolution “did not limit the qualification of voters as provided in the act.” We will not stop to inquire whether the contention was supported by testimony in the record or not, for certainly such irregularities, if any such *313 occurred, would not have invalidated the election if they did not in any way affect the result thereof. Wallis v. Williams, 50 Tex. Civ. App. 623, 110 S. W. 785. It was not pretended in the court below, and is not here, that any one entitled to vote at said election failed to do so because of such alleged irregularities, nor that any one not entitled to do so voted thereat. [4] Treating said street improvement statute as a valid one, which the city had a right to adopt and did duly adopt, the next question is, did the statute confer on the city the power to validate by a reassessment the invalid assessment made against appellee Childress on account of the paving of Griffith avenue? Appellee’s contention was and is that the question should be answered in the negative because of a provision in the statute as follows: “This chapter shall not repeal any law, general or special, already in existence, pertaining to the making of such improvements, but the provisions of this chapter, and of resolutions or ordinances passed pursuant thereto shall be cumulative of, and in addition to, such existing laws; provided, that in any case in which a conflict may exist or arise between the provisions of this chapter and the provisions of any law granting a special charter to any city in the state, the provisions of such special charter shall control.” Article 1017, Yernon’s Statutes. It was urged in the court below, and is here, that the statute was in conflict with the charter granted to the city of Terrell; that the statute, therefore, was inoperative in said city; and hence that a provision therein as follows, relied on for the purpose, could not be regarded as a sufficient support for the proceedings resulting in the issuance of the certificate dated November 26, 1917: “The governing body of any city shall be empowered to correct any mistake or irregularity in any proceedings with reference to such improvement, or the assessment of the cost thereof against abutting property and its owners, and, in ease of any error or invalidity, to reassess against any abutting property and its owner the cost, or any part of the cost, of improvements, subject to the terms hereof, not in excess of the benefits in enhanced value of such property from such improvement, and to make reasonable rules and regulations for a notice to, and hearing of, property owners before such reassessment.” Article 1014, Vernon’s Statutes. In support of the contention it is argued that the charter “provides for the improvement district plan” for paving streets, while the statute “provides an entirely different procedure, which is in conflict with the charter.” By “an entirely different procedure,” which appellee says the statute provides, we assume he means the “front-foot plan,” which the city was by the statute authorized to resort to in making provision for payment of the cost of paving. But we think the statute should be treated as “cumulative of, and in addition to,” the provisions in the charter for paving streets, instead of as in conflict therewith; and especially so in view of the fact, which appears from the statement above, that the city was authorized by its charter to resort either to the “district plan” or to the “front-foot plan” in making such provision; for a statute providing a plan the charter also provided for could not for that reason be said to be in conflict with the charter. [5] The . question remaining is this one, were the requirements of the statute so com-' plied with as to authorize the reassessment, or “final assessment,” against appellee, covered by the certificate issued November 26, 1917? That assessment seems to have been made after due notice to appellee and after he had had an opportunity to be heard in opposition thereto. It does not appear from anything we find in the record that the sum assessed against appellee was in excess of the sum the city had a right to assess against him, nor, as we view it, does any reason why appellee should not have been required to pay the assessment appear in the record. Gallahar v. Whitley, 190 S. W. 757. Having reached the conclusion indicated; it follows we are of the opinion the judgment should be reversed so far as it is in appel-lee Childress’ favor against the other parties for a cancellation of the certificates in question, and so far as it denies-appellants Car-wile and the cement company a recovery against appellee Childress of the amount of the certificate issued November 26, 1917. Therefore the judgment in the respects specified will be reversed. And being of the opinion, further, that the record sent to this court authorized it, judgment will be here rendered that said Carwile and said cement company recover of appellee the sum of $493.50 (that being the amount of the principal sum and interest thereon to March 5, 1918, mentioned in said certificate, and the attorney’s fee stipulated for therein and proven at the trial), and interest thereon from March 5, 1918, at the rate specified in said certificate, to wit, 7 per cent, per an-num. So far as the judgment is in favor of the city in the controversy between it and said Carwile and said cement company it will be affirmed. Footnotes [1] <©=3Fnr other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes [2] <@=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes