The Houston daily post. [volume] (Houston, Tex.) 1886-1903, 1897-12-25
NEW LINE OF DECISIONS
Promulgated as to the Famous Stor-
rio Street Paving Gases
a JUDGMENT FOR THE DEFENDANT
In the Mard-roushs Case Of n. G.
storrtc vs.. Charles Wocssner.
Judge Wilson'S Able Decision.

Judge W, II. Wilson OF tho Fifty.iifth
civil district court Yesterday decided tho
case OF II, q, storric VS., Charles woess-
ner. rendering his decision In favor or the
defendant after having had the case un-
der advisement for more than a month.
The decision WAS an important one for
a number OF reasons. first. because OF tho
intricate questions of constitutional law
involved, and for the further reason that
there are hundreds OF property owners to
whom the inal disposition of tho question
means thousands Of dollars.
When the question WAS first carried 10
tho supreme court that body decided that
assessments for street improvements lev
led against property by the cities. carried
with them lien against tho property. but
could net be made TO sustain PERSONAL
Judgment against the piuperty ownars
Later the same court reversed their Tor
mor decision and decided that homesteads
were exempt; that no lien attached against
the property. but that u personal judy
ment could no secured.
The decisions In this and other States
ate very conflicting on the questions in-
voived In these cases; but the majority OF
eases decided support the contentious OF
the constltutionality OF tho law. though
such great constitutional w-givers as
Cooley and Desty combat that theory
with powerful reasoning.
The decision OF Judge Wilson IL in d.
rect conflict with the supreme court OF
the State of Texas. and he Ia the hrst tndee
who has thus far shown his disbelief In the
scundness OF that hodys Views on the
question.
| Captain Hutchison fought the case for
the defense with great skill and learning.
| and In the face OF the adverse position OF
| tho supreme court; but II is thought ty
| many able lawyers throughout the state
| that the supreme court Will eventually
! have 20 change their decision.
| Tho decision of Judge Wilson iG giveh
| below In full:
| No. 1a,sii--R. c. Storrie vs.. Charles
Weisner
The conclusions reach In this case are.
l. The certificate offered In evidence
was insufficient to raise the prima facio
| presumption that all proceedings had nce1
regular, and the burden was therefore o0
| plaintiff to prove nfiirmatiVcly MI neces-
| sary prerequisites to the validity of The
assessment.
| ?. That the whole Of the property WAS
homestead; that part OF il had been rent
| ed out. but that tho evidence did not show
| that this renting was with any intention
Of permanent ahandonmet Of tho home
stead, and therefore there can he no lien
against the property.
| g. That the certificate OF the city en-
| gipoer on the roll of ownership rs not III
| compliance with law aud is invalid; ING .
wise that the roll OF ownerehip instead ol
| hciuc signed by the city attorney John y.
| stewart was in fact signed by HIS father.
Charles stewart. that Charles Stewart had
general authority In the absence OF John
g. Stewart (who was then ahsenll 20 net
generally for him, but hal no special au-
thorty to sign thls particular dncmnent'
hold that the signature Of the city attot-
| ney Ivy the substituted deputy is not IN
compliance with tho charter. | hold how
ever that these defactp IN tho roll Of own
orship are iminatnrial. as the contract was
In evidence aud n was agreed mat Inc
work was done IN accordance win iho
contract hold that The roll OF ownership
| Is a matter which Is mcroly ovidcplal ana
| la not iuriRdictlonal. and that inc WORK
having been done In accordance with tho
contract these defects In the roll are not
fatal TO the validity of the assessment
1. Tho charter provides tsecilon 23hl
| for n reference TO the board OF public
works.
OF the hoard of public works therein MIS-
be a responsible action on their part IN
ducod by an authoritative reference ia
them by the city conncii acting onleiaily
Az u body. There h no evidence from
the minutes OF the city council OF else
whore that this way done
bold that this was jursdicional, ard
the whole assessront therefore MRS yold.
Tie provision OF the charter making .
| failure 10 appear before the city council
conclusive or presumptiye ! hold inoper-
alive because II had no jurisdiction 10 re-
uuiro person 10 appear till tho pfere-
uuisites had been complied with
also hold that the city council ~ not
n t.snf ND
10 the course OF common law or equity.
or according to fixed rules OF eyidench,
and that IL In not due process of law mat
a failure 10 appear before It should alb
soluteIy conclude any man legal rlRhts
The constitution provides article III,
section 4S} that the Legislature shall not
have the right to levy taxes or Impose
burdens upon the people except 70 ralse
revenue sufficient for the economical adj
ministratioD OF the government"
When a street paving assessment, aban-
donlng the technical legal theory that be,np
4 benefit TO the property 1t Is therefore
a charge against Il. creates personal
Judgment which may consume mans
whole estate " he Is not able TO bid full
value of the certificate at q judicial sale
Il is n burden on the person according u
any ordinary and natural use OF the Eng
fish language.
Neither can II be contended that Great
: Ing cndFke hbHiNbt AZ Iltu piPp'I'y ih'
person, levied not for general purposes
but on the theory OF supposed benefit 70
his property which he IL compelled u
receive. and said charge never at any limo
the property OF the government or any
branch Of the government. but from th'
very beginning and always the property
/; of a private person IL raising revenu'
for the administration OF the government
"a 1t is argued. however, that the sole
subject OF provision is revenues for TN
support OF government There III nothinb
, I in the language or IN the context to beal
out this idea. The subject discussed u no
/. taxes but limitations on the legislature
s, Referring to the draft Of the constitution
I In the Revised Statutes II will he see,
that article III NJ the constitution Is head
, ed Legislative Department" and tina
, section As is one OF the sections under tn
: head Requirements and Limitations o.
: The legislature The provision say
eimriy that except TO raise revenue 4
administer the government no burden shal
| 10 iu,rosad y The language IL very plain