The Houston daily post. [volume] (Houston, Tex.) 1886-1903, 1899-06-25

virtue OF which their claims arose were
uneuforceable, TO recover nevertheless
from the property owners upon one of the
grounds named, II Is unnecessary for Us
TO determine whether the legislature could
effect such purpose or not The Ian
guage does not purpcrt to authorize the
defendant in such proceeding to inaupurate
the inquiry and the construction would
conflict with that part Of the charter which
declares that the property owner shall not
do that thing. Substantially the same
proposition was presented in the case of
Norwood VS.. Baker where 1t was con-
Tended that the party who sought the in
junction in that case should have shown
that the assessment was in excess of the
benefits received and that the court should
have shown that the assessment was in
excess of the benefits received and that
the court should have rendered Judgment
Tor the amount that the property was ben
ented by the Improvement. In answer to
this pr position, that court said This
suggestion implies that if the proof had
showed an excess of cost incurred in open
ing the street over the special benefits ac-
c!uing to the abuttlng property, a decree
might properly have been made enioinipg
the assessment to the extent simply that
such cost exceeded the benefits. VIC do no,
concur in this view As the pleadings
snow, the village proceeded upon the
theory justified by the words of the
s'a,ute, that the entire cost incurred in
opening he street, including the value of
the property appropriated, could. when he
assessment was by the front foot. be put
upon the abuttIng property, irrespectiye
OF special benefit. The assessment was by
lne front loot and for a specific sum rem
FesshtlhS such cost and that sum cauld
nol nave been reduced under the ordinance
OF the village, even If proof had been made
that the cost and expense assessed unon
me aputtlhg property exceeded the special
dement's. The assessment was, in itself
sn Hlega4 one, because 1t rested upon a
, mat excluded any consideration of
peuen' 70 decree enJoining the whole as
s-ssment was therefore the only annro-
pirate one The quotation thoroYphiy 10
lu'es the contention made in this case ana
neeus no argument to support it. 1t would
- qH4te unusual TO require the defendant
a. -. sun upon demand wholly invalid Ia
~ 'sA the p!alntiu valid cause of ac-
~, ~ ~ condition precedent to defending
n'InSeif against the unlawful claim
tAe eharter Of the city of Houston
uuuer Wnlch the assessment in mis- cas-
hl Ms aaue, could by any fair and reasona-
nr,,,o Neuso' ueuoni De held to secure the
+ c"n,S owner the right, at a time when
ha
validity OF the levy because NOT nal ,, sHe
me oasls OF benefits, it would he fSo I 5,,.t,
Vi IHls court TO so construa n H.,
" uet 70 JUSTIFY such a construction IL
snou'u Dc SO obvious that the nronarty,
oNuer, upon a fair consideration ~ ~,
provisions, would have known Of ~. ia 'ss
o. me proceeding that the remedy vas - ~
s s ny the charter. Ii this conrt sbo,,ia
loire construction of the charter n'bJaS
. noI reasonably have been upderN
tt,' -" 70 ue the meaning of the law az Inc
wnuld he avs were being performed, 1t
retroaot', ny ouiy judicial legislation bn,
unreasonable and arbitrary as ~ ue as
Mhleh courts are required ~ con,t,' sie ny
p ~ mat the city council has $50
spseial benefits to he equal ~
eos s when, In fact, there vera No ~ ~ cue
tho question. "' power TO consider
ana ~ 70 90 regretted that contractors
a.. t others may have been invotraS -
ti,naI 'ai Toss by reason OF an unconst,t,,I
nent tnent of the legislative denart-
rights ~ ., courts VIII always preserve ths
the law % ,s'c ~. VINO act In compliance win
done lawfn,ir iano' as far as ii can he
Fedsrs1 "tusiy, but the guarantees ~ ~.
reueral and State constitmtio,s OF the
&c suooralnated to questions ~ a,'as ase hot
nrasn.. OF justice. Justice viii ~ not
sseSer.ea by UNFOLDING the I,r,, 9e psst
WSan 'ne exercise of arbitrary no .rons
con men law comes in conaict y,i power ,s
Sate OF Tsx Of the United States or Of the the
and the co v~ss, then the law must Weld
tanned. oe upheld and sus-
We conclude that the os.o..
"a THIS case was vois ana H1 sh made
r na against Mrs, Hutcheson s !, gave no
e errs'nai nature or a lien unon ' me OF
eo,y, ana that the pleadinrs ana nsr prop
cam us show that no risbt thu o sviasass
that tSs sh ,"H 1t is therefore or aSsrOS
and court az s OF the district eenrt
that judgment I'M ~ appeals be reversed and
Pendants d NJ DC here rendered for de-
. ssown, Associate Justice iiu'eneson. T.
D''A delivered June 10. 1898.