107 F. 325 | 5th Cir. | 1901
This is an appeal by tbe city of Galveston, as an intervener, in the suit of Guaranty Trust. Co. of New York v. Galveston City R. Co. (one branch of which has just been disposed of by this court, No. 969 on the docket of the court) 107 Fed. 311. In addition to the facts set forth in that case, and which need not be repeated here, it may be stated that the intervener claimed that the said railroad company was indebted to it for one-third of the cost of grading, filling, and paving certain streets and avenues in the city of Galveston upon which the railroad company
The specifications of error assigned are that the court erred in holding that the assessments claimed were not taxes, within the meaning of article 5212b, Rev., St. Tex.; and that the court erred in holding that the claim was barred by the statute of limitations of two years.
A part of the claim sued on accrued December 7, 1893, the balance April 1, 1895, and the intervention was filed November 10, 1897. The assessments sued for in this intervention were not taxes, within the meaning of article 5212b, Rev. St. Tex.; Higgins v. Bordages,
The counsel for the appellant concedes that, if the indebtedness here claimed is no I' evidenced by, or founded upon, a contract in writing, then the statute of limitations of two years appLies. But his contention is that it is evidenced by, or founded upon, a contract in writing, in that the charter of the railroad company provided that “said company shall construct, equip and run said railroads upon the streets within the limits of said city under such conditions and ordinances as the mayor and aldermen of said city may provide and impose,” and while the claim may not he evidenced, as to amount, by the charter of the company, it is founded upon it, and said charter is a contract in writing.
While the charter of 'the company was a contract, it was such only between the state and the company, and its subject-matter was the franchises and rights which the company were authorized to exercise under it. The city was not a party .to it. By the terms of its charter, the company undertook to comply with the conditions and ordinanc.es which the city council may prescribe, hut at that time the city had no legislative authority to improve its streets, and assess the railroad company with one-third of the cost of (he improvements. The city subsequently obtained legislative authority to make such improvements, and to assess one-third of the cost thereof to any railroads using the streets. Under this authority, by subsequent ordinances, it improved the streets on which this railroad company was operating, anti assessed one-third of the cost to the company, but we are unable to see how such assessment became a debt evidenced by, or founded upon, a “contract in writing”; ihe contract being the charter of the company granted by the state, to which the city, as we have said, was not a party. The contract in writing mentioned in the statute is a contract between the parties; those occupying towards each other a contract status, — a “privity.” The debt mentioned in the statute as a debt evidenced by a contract in writing is one proved by an instrument in writing importing on its face the existence of the debt, and a debt founded upon a contract in writing is one for the establishment of which such contract is essential. In our opinion, the assessment debt in question hears no such relation to the charter of the railroad company.
Under the city’s charter, all assessments for street improvements became due “whenever and as soon as such improvements are completed and accepted by the city council.” It appears that they were completed and accepted, and the assessment in this case made, more