L. C. Roundtree v. The City of Galveston, 42 Tex. 612

Moore, J. This suit was brought by the city of Galveston to recover from L. 0. Roundtree, the appellant, one-fifth of the amount assessed upon a lot owned by him on Twenty-second street, in said city, for cost of improving the same, by shelling. Said amount being for one installment on said assessment for the payment of which appellee claims a lien on said lot. As there is no statement of facts in the record, we can consider only such of the errors assigned as relate to the action of the court in overruling the exceptions to the petition, or as brings in question its sufficiency to warrant the judgment.

There is in the record a bill of exceptions, which seems to have been intended by appellant, and which no doubt he supposed would serve, as a statement of facts, as well as a bill of exceptions. Evidently, however, it can not be so treated or considered. In the first place, it does not distinctly purport or state that it contains all the evidence adduced on the trial of the cause. But if it did, the objection to it would not be obviated. A bill of exceptions and statement of facts are alike intended to be incorporated into and become parts of the record of the case.

Still they are altogether different in their character and purposes, as well as in the manner of their preparation and authentication. The first serves to perpetuate in the record the ruling of the court to which the party presenting the bill excepts. Only such facts are set out in it, as are necessary for the proper understanding of the action of the court to which the exception is taken. In its preparation and completion the opposite party has no necessary connection, and is frequently not even cognizant of its contents until it has become a part of the record.

While the latter is intended to embody in the record all the evidence introduced on the trial, as agreed to by the parties and approved by the court; or if the parties fail ■to agree, as certified to by the court after examining the statements prepared by them respectively. In our liberal practice; discarding mere matters of form, the statement of facts may be made to serve the purpose also of a bill of exceptions ; for the reason that it bears upon its face the concurrent assent of the parties and the court.

But as-this is not necessarily the case witli a hill of exceptions, and as it does not ordinarily purport to be authenticated in the manner requisite for the authenticity of a statement of facts, it cannot be so regarded. We are led to inake these comments to guard, in other cases, against a similar mistake. It is an oversight into which counsel have fallen, no doubt, by reason of the liberality and freedom in our practice and procedure in respect to mere matters of form.

It is claimed by appellant that the charter of the city of Galveston does not authorize any part of the cost of improving its streets with shells to be assessed on the property fronting on the street. In support of this proposition it is said that it is only two-thirds of the cost of improving such streets as, under the charter, may be paved otherwise, than with shells, which may be assessed against the property fronting on said street; while the cost of improving the streets by shells must, it is claimed, be defrayed by the city from its general revenue.

We are of opinion,-however, the plain language of the charter is a complete answer to this objection to the petition. Authority is given by the charter to the city council, to grade, shell, repair, pave, or otherwise improve any avenue, street, or alley, or any portion thereof within the limits of the city, whenever, by a vote of two-thirds of the aldermen present, they may deem such improvement for the public interest, provided that the city pay one-third and the owners of the property two-thirds thereof, except the intersection of the streets, which is to he paid for by the city alone.

This general power of improving the streets is limited by a proviso that not more than two thoroughfares, within certain designated limits, shall be paved otherwise than with shells within any period of two years. But this does not limit the authority given the city to improve any of the streets with shells when deemed, by two-thirds of the aldermen present, for the public interest, or alter the rule laid down in the charter, apportioning, between the city and the owners of lots fronting on the street, the cost of improving it with shells.

BTor do we think the power given by the charter to assess two-thirds of the cost of the improvements upon the owners of the lots taken from the city by the Act of December 2, 1871, authorizing the city “ to issue bonds to pay “ its overdue debt, to improve its streets by grading, shelling, “ paving, and repairing the same, and building culverts, break- “ waters,” etc., etc. There is, so far as we can see, no necessary conflict in the provisions of the charter as to this matter and this statute. It purports to be a grant of power to the city, and not a limitation or restriction upon its existing powers.

It is also insisted by appellant that a tax cannot be levied by the Legislature, or under authority conferred by it, unless it is equal and uniform through the State or district to which it applies, and that it must be in proportion to the value of the property subject to the levy. The views of the court in regard to the constitutional provisions providing for and regulating the levy and assessment of ad valorem and other taxes for purposes of general revenue, have been fully expressed in cases recently decided, and need not be here repeated.

That the authority for making assessments for local improvements is derivable from and in exercise of the taxing power, and not that of eminent domain, can not, we think, admit of question. (People v. Mayor, etc., of Brooklyn, 4 N. Y., 419.) If, then, this charge against appellant for one-third of the cost of improving the street on which his lot fronts is to be regarded as a property-tax within the meaning of the Constitution (Article 12,

Section 19), it must be held invalid because it is'not contemplated by the charter authorizing it, and, in fact, is not susceptible, under the ordinance by which it is made, of being assessed as a property-tax for general revenue as required to be by the Constitution. (Article 12,

Section 28) We cannot hesitate to. say, however, that it has been so frequently decided, that there can be no question that it is now clearly settled by the great weight of authority, that the constitutional provisions having reference to taxes for general revenue are not applicable to assessments like this for.local improvements. We are not prepared to dissent from the conclusions reached ip the numerous cases in which it has been thus held, under similar constitutional provisions as with us, until stronger reasons and better authority for so doing than we have yet seen shall be shown us.

In discussing this- subject it is said by Judge Cooley (Const. Lim., p. 497): “ But, in addition to these cases, there are others “ where taxes are levied directly on property, which are, never- “ theless, held not to be within the constitutional provisions. “ Assessments for the opening, making, improving or repairing “ of streets, the draining of swamps, and the like local works, “ have been generally made upon property with some reference “ to the supposed benefits which the property would receive “ therefrom.” “ The Constitution of California requires,” says Judge Dillon (Mun.

Corps., Secs. 499, 501), “ that taxation shall be equal “ and uniform throughout the State,” and that “ all property in “ the State shall be taxed in proportion to its value,” still it is held that the word taxation, as here used, refers to the general taxes to defray the ordinary expenses of the State and its subordinate local governments, and not to assessments for local improvements. “ That assessments, though a branch of the tax- “ ing power, need not necessarily be exercised on the ad “ valorem principle, but the Legislature is at liberty to adopt a “ different basis of apportionment, such as frontage, benefits “ received, or superficial contents.” (Emory v.

Cass Co., 28 Cal., 345.) “ So in Missouri, it is held that assessments against adjacent “ owners for benefits received from opening, etc., of streets are “ a valid exercise of the taxing power, and do not contravene “the provisions of the Constitution ‘ that all property subject “c to taxation shall be taxed in proportion to its value.’ ” (Garret v. St.

Louis, 25 Mo., 405.) Like decisions have been made in Louisiana, Kansas, and Kentucky, and in many of the other States. (See Dillon on Municipal Corporations, Sections 590-603, and numerous cases cited in the notes to these sections.) The other objections to the petition are not deemed of sufficient importance to require any special notice. Other questions of much interest have been discussed, which we are not authorized to consider in the absence of a statement of facts. The judgment is affirmed. Affirmed.