City of El Paso v. Mundy Brothers et al., 85 Tex. 316

HENRY, Associate Justice. This suit was brought by upwards of fifty property owners against the city of El Paso, to restrain the sale by the city of certain lots, belonging to the plaintiffs, separately, fronting on El Paso Street. The petition charged that the city was endeavoring illegally to enforce an assessment for improving said street. The original petition was filed on the 4th day of June, 1888, and a writ of injunction was issued on the same day.

The defendant, on the 19th of February, 1890, filed its first amended answer, setting up for the first time counter-claims against the plaintiffs for the several amounts assessed against each plaintiff’s lot, stating the amount claimed against each separately, and prayed for a foreclosure of liens on said lots respectively for said amounts, and in the alternative, if it was no lien, for judgment in personam.

On February 20, 1890, the plaintiffs filed their first supplemental petition, in which they alleged that the court did not have jurisdiction to render said judgments in personam, as each amount claimed was less than $500, and set up the statute of limitations of two years, both by demurrer and special plea, and also pleaded a general denial of the defendant’s cross-bill. The suit was tried before the judge, and a general judgment was rendered for the plaintiffs. The appellees submit that the decision of this cause depends upon the correct legal answer to three questions: “ 1.

Did the charter of the city, and its ordinances and acts thereunder, create a lien on the lots abutting on El Paso Street for the amount expended in improving the street, and authorize the city to enforce same by sale of the abutting lots ? “2. If not, did the charter and ordinances and acts of the city create a liability in the nature of debt on the part of said lot owners to pay for said improvements ? “3.

If both or either of the above questions are answered in the affirmative, were the city’s causes of action set up in its cross-bill barred by the statute of limitations of two years ?” We think that these questions fairly present all of the issues raised by the assignments of error, and more than are necessary to be considered by us in determining this appeal. So much of the charter of the city as relates to these issues reads as follows: “

Section 130.

The city council shall be vested with full power and authority to grade and macadamize, pave, repair, 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 elected or appointed, they may deem such improvement for the public interest; pro-Tided, the city council shall pay one-third and the owners of the property two-tliirds thereof, except the intersection of the streets, from lot to lot across the streets either way, which shall be paid for by the city alone.” The city had no power in the premises not conferred by its charter, and that is silent with regard to a lien upon property for the cost of improving a street.

This court has announced its adhesion to the rule stated by Mr. Cooley, that “ such a power, when plainly granted, is to be construed with strictness, and as strictly pursued by the authorities who are to levy the tax.” Cool, on Tax., 609; Allen v. Galveston, 51 Texas, 318. It must be held that no lien upon property was given by the charter.

The only obligation that it mentions is a personal one against “the owners of the property.” Before assessments for a local improvement can be levied and collected, either upon property or against its owner, there must be competent legislative authority. “ The district of assessment must either be prescribed by the Legislature, or some method of determining it must be given, and the rule of apportionment must be laid down.” Cool, on Tax., 653. “They can only be levied under authority of positive constitutional or statutory law, generally found in the act of incorporation of towns and cities, or some special or general statute conferring the power.

The measure of the power when authorized, and the mode of its exercise, must be sought for in the statute creating the municipal corporation, or conferring upon it the powers to be exercised.” Welty’s Law of Assess., 415. The only question that we think it necessary to consider in this opinion is, whether or not the authority to levy and collect the tax, and the manner of its exercise, were sufficiently provided for by the charter under which the city was at the time acting. The

section of the charter above quoted is conceded to have been then in force. We have examined the charter of the city without finding any other or additional authority to impose or collect the tax. While the charter plainly shows an intention to create a personal obligation, and not a charge upon property, it utterly fails to mention who are the persons to be charged, or to prescribe any rule by which the)' shall be ascertained.

It neither by its own terms, nor by conferring the authority to do so upon some other body or tribunal, makes the necessary provision for determining who shall be required to pay the assessment. It is charged by the charter only “ upon the owners of the property,” but of what property is in no way specified. By adding to it words that are usually found in such charters, we might conclude that the owners of lots fronting on the improved part of the street were intended, but it is not so expressed in the charter.

That does not specify whether it is a charge upon real or personal property, or upon both, or if upon either, where it is situated. The words “the property’’ can not refer to the land on which the work is done, because that is a public street, and yet they do not literally apply to anything else.

If we were at liberty to supply words so as to make the charge apply to owners of property benefited by the improvement, we would still be unable to say that no property was benefited in some degree except the lots that abut on the street; and if this difficulty was removed, and it could be ascertained who “the owners of the property ” intended are, still we would not know by what rule it was intended that the proportion of the whole expense to be paid by the different owners should be ascertained.

The charter does not even say that the charge shall be against the owners of property that is “ benefited ’ ’ by the improvement. The charter, neither by its own terms nor by delegation of authority to another, provides for the ascertainment of the proportionate part of the entire cost which each property owner shall be required to pay. The method of apportioning the cost of the improvement is of vital importance.

Different plans are pursued, all of which have met with more or less criticism and objection as being contrary to the principle upon which the authority rests, if not unconstitutional, but which have been upheld by the courts when prescribed by the Legislature. The charter could have provided for payment to be made by abutting owners, according to frontage or value, and in proportion to the cost of the entire improvement, or of each block, or in other specified modes, having due regard to benefits received and equality; but it not having done so directly nor indirectly, the courts can hot supply the omission.

We deem it unnecessary to consider other questions presented by the assignment of errors. As authority was not conferred upon the city by its charter to make any part of the cost of the improvement a charge upon the property of the plaintiffs, nor against them personally, the judgment must be affirmed. Affirmed. Delivered June 24, 1892.