City of Waco v. Wm. L. Prather, 90 Tex. 80

BROWN, Associate Justice. This was a suit by the City of Waco to recover from the defendant in error taxes assessed against his property on Austin street in the said city to pay for the improvement of the street in front of his property. The District Court held that the proceedings of the city council in reaching the determination to do the work and by which the pavement contract was entered into were void, because not done by ordinance or resolution of the city council.

The only evidence of the action of the city council ordering the work to he done and entering into the contract with the contractor was entries of the city secretary upon the minutes of the council. Judgment was rendered hy the District Court for the defendant in error, which was affirmed by the Court of Civil Appeals. This application will be refused, because we believe that the judgment of the District Court is correct and that there is no reversible error in the proceedings in either court.

In affirming the judgment of the District Court, the judge who delivered the opinion of the Court of Civil Appeals placed the affirmance upon the ground that “inasmuch as the city council had power to pass ordinances, it could proceed to contract for and to construct the improvement of the streets by ordinance only.” This seems to hold that the work could not have been done by virtue of a resolution adopted by the city council.

In our opinion the council might have acted either by ordinance or resolution, but the improvement could not be ordered nor the contracts entered into without either ordinance or resolution adopted by the city council. Application refused.