54 Tex. 517 | Tex. | 1881
The right of the plaintiff to his recovery depends on the power of the city of Galveston to construct sidewalks and to give its valid written obligation to pay therefor at a future day. The question is thus stated, because we are of opinion that the instruments set out by plaintiff may bind the city to the payee or his assignee, although they may not have been valid negotiable instruments, because of the want of power in the city to issue negotiable or commercial paper for such purposes. Whether this latter power was wanting or not we do not determine.
The charter empowers the city council to “ construct sidewalks,” and in the same section says: “The cost of
It is claimed that under this provision of the charter, the city had no power to undertake the construction of sidewalks on its general credit, but could only do so by defraying the present current cost thereof by obtaining the same from the owners of the abutting lots. If a sidewalk thus paid for could properly be said to be “constructed by the city, ” there could certainly be no “amount due the city” to be paid out of the proceeds of sale. These expressions in the charter show clearly that the design was, as in case of filling lots for sanitary purposes, to empower the council to cause the improvement to be made “at the expense of the city,” although that expense was "to be assessed against the lot or lots benefited. Charter, title 8, art. 8, sec. 1.
The express power is granted to construct sidewalks, and the terms of the grant show that it was contemplated that the city would primarily incur the expense which ultimately was to be borne by the owner of the abutting lot. This was an extraordinary expense, and, like other such expenses, might involve the creation of a debt and the execution of an instrument evidencing the amount of that debt and the time of the promised payment or payments. 1 Dillon on Mun. Corp., sec. 39Í. Speaking of municipal corporations, Dillon in his work
Adhering, as we do fully, to the doctrine that any fair or reasonable doubt concerning the existence of a power in a municipal corporation is to be resolved by the courts against the corporation (see Williams v. Davidson, 43 Tex.), we are of opinion that the' city of Galveston
It follows from these views, that the court did not err in giving judgment for the principal and interest of the coupons or instruments sued on, unless the defense of limitation be applicable to such as had been due over four years. Appellee claims that limitation would not begin to run until the maturity of the bonds to which the coupons remained attached. That question has been decided otherwise in the recent case of Amy v. Dubuque, 98 U. S., 470. We regard that decision as sound in principle and are willing to follow it.
The judgment will be reversed and reformed so as to exclude from the recovery those coupons which had been due over four years at the date of the institution of this suit.
Reversed and reformed.
[Opinion delivered March 18, 1881.]