The Houston daily post. [volume] (Houston, Tex.) 1886-1903, 1898-01-24
ktas. Ruling by the Court Of
Appeals.
sFNNIsoN TEST CASE DECIDED.
~ the Court TINT Paving As
..rruts Are n Personal Lien
ON Abuttins PropeTty.


an VS.. the City of Galveston, will
interest throughout Texas on ac-
81 the difficulties following the
y M the Bordages- Higgins paving
~ IN which II was settled by the
ne court that paving assessments
Il constitute a lien upon homestead
tles. 1t has since been settled by the
~ appeals and the supreme court
nch assessments constitute personal
~ against the owner of the prop
MT there are interesting points de-
IN the Bennison case relative to
after of the fixing of such personal
ty.
suit was Instituted by City Attor-
Waverly Smith as test case. and
hat 1t has been decided in favor OF
M other claims of the same char
will be put in suit. The opinion
follows:
b52. John Bennison, appellant, vs..
City Of Galveston, appellee. APP
from district court of Galveston
nty. i. Cd
only rulings Of the court below as
as error are the overruling of spe-
RECEPTIONS to the petition. The action
brought by the city to recover an
nt assessed against appellant as his
Of the costs of filling and paving a
on which a lot owned by him abut-
ind to foreclose lien on the lot.
etition showed by its allegations that
Improvement and assessment had been
In accordance with the provisions of
barter and ordinances regulating the
b. and no question Is made as to the
ency of the allegations in this par
i. The petition further alleged that
1 the ordinances in force when the
was done WAS the following:
I. 493. In addition to The power and
rity to collect said assessments as
baid, by levy and sale, 1t shall be the
Ct the city attorney, whenever he
leem 1t advisable, to institute suit in
orporate name of the city. in any
having jurisdiction, for the recovery
BIT any owner of said property of the
BIT due for such paving SO made as
bald"
d further alleged that on the 18th
October. 1893. cater the assessment
een made and before suit). the city
VI. by ordinance or resolution duly
u ordered the city attorney to instl-
|uit against defendant and said prop
or the enforcement of said lien and
ton of said tax and assessment.
fifth special exception, the overrnl-
which is assigned, alleged insult
~ OF the petition because it did not
Prth any ordinance of the city of
ston whereby the collection, by suit.
assessment is prescribed and regu-
proposition, in the brief, by which
ants position is stated il as fol-
here statute confers upon city
u, In addition to the remedy of eel
street assessments by the collector,
primer remedy of instituting suit for
covery of such assessment, and di-
mat such city council. shall provide
solution or ordinance for carrying
10 executing the power so conferred,
shall be the duty OF the city at
whenever he may deem It adv;s-
70 institute suit for the recovery of
YET assessment, or where such city
!, by resolution, instructs the col
to transfer to the city attorney for
ZION and suit. if necessary, the de-
nj street paving roll, such city coiin-
es not, by the passage of such ordi-
or resolution. exercise itself the
conferred of directing or ordering
sti'utlon of suit and unwarrantly re-
pe matter to the discretion and jndg-
" the city attorney, and such ordi-
Or resolution is no warrant of au
lot instituting this suit"
position Is founded upon the follow
o'islon of the charter OF the city,
is only one of the articles of the
which elaborate provisions are
regulating the subject of street i'm
nents and local assessments.
-. That in addition to the power
a.nority granted to the city council
meet said assessment as aforesaid,
nal have the further and additional
OF lnstituting suit. in the corporate
IN any court having jurisdiction. for
.oVery, against any owner of said
~ Tor the amount due for any such
70 made as aforesaid; and the city
snail provide by resolution OF Or
under the provisions of this act,
carrying out and executing the
IN THIS title conferred, and may
sucn resolutions and enact such Or
anu make such rules and regula-
they may deem necessary" (Char-
be. 1907
enauter comforting upon munich
pWauons power to impose upon the
suen burdens as that in question
suictiy construed: that all acts
Itss prescribed by the legislature
ohs precedent to its exercise must
mat the courSe of procedure
Sut py The charter must be pur-
me charge created In the pre-
none are propositions which are
.sosnized. 1t Is equally true that
i ar. Of any question which,
~. committed TO the discretion
council. can not be delegated
N. and made to depend upon the
any other officer or person.
constitutes the rigid rule OF
when the extent OF the power,
~ VI It's exercise and the persons
is to be executed are TO be
ss determined. But in the present
Az Is no question but that the city
sng s upon and making the improve
assessment, acted within the
s~ierred upon IL, and pursued the
Ma out by the charter and the
~ auopted IN accordance with It
htarter and ordinances it is pro-
s~' When the cost OF improvement
S oeen ascertained in tina manner
Il, me assessment shall be made
Il, constitute a lien upon the lots,
49,. &c collected by the collector, who
s'sa to sell in default OF payment.
secs. l2S, 1873: ordinance 4a2.)
n Ius eharter made 1t necessary that,
aas.oh precedent to personal liabil-
ai to the lien upon the prop
houty council should determine that
s'a be such liability, that body
~. commit the decision of that
70 the discretion OF the city at
anyone else. But we 10 not