City of Galveston v. Loonie, 54 Tex. 517

City of Galveston v. Loonie

54 Tex. 517 | Tex. | 1881

Gould, Associate Justice.

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 *524the construction of sidewalks shall be defrayed by the owners of the lot or part of lot or block fronting on the sidewalk; and the cost of any sidewalk constructed by the city shall be collected, if necessary, by the sale of the lot or part of lot or block on which it fronts, together with the cost of collection, in such manner as the city may by ordinance provide; and a sale of any lot, or part of lot or block, to enforce the collection of the cost of sidewalks, shall convey a good title to the purchaser, and the balance of the proceeds of sale, after paying the amount due the city and cost of sale, shall be paid by the city to the owner.” Charter, sec. 8, art. Ill, title 4.

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 *525on that subject says: “To the extent necessary to execute the special powers and functions with which it is endowed by its charter, there is an implied or incidental authority to contract obligations.” 1 Dillon, secs. 371-2. The charter of 1871 contained no express limitation on the power of the city to incur indebtedness, other than the provision, “That the city shall not borrow for general purposes more than $50,000.” Tit. 4, art. 3, sec. 2. In the case-of Hitchcock v. Galveston, 6 Otto, 349, it was held that sidewalk improvement was.not a “general purpose,” and that this provision did not limit the power of ■ the city to borrow or create a debt for that purpose. We concur in that construction. Improvements, the ultimate cost of which is to be defrayed by the owners of abutting lots, because those lots are specially benefited, might properly be said to be made for a special, as distinguished from a general purpose. The ultimate reimbursement of the city being secured by a hen on the abutting lots, there would be less reason for hmiting the power to borrow for such a purpose than for general purposes, where the city was unsecured. In the case of Hitchcock v. Galveston, just cited, the power of. the city to contract indebtedness under this section of its charter was upheld. Numerous authorities tending to the same conclusion are collected, and the substance of each most conveniently stated in the carefully prepared written argument of counsel for appellee. Without intending to adopt these authorities in so far as they may assert a general power to issue commercial paper, we are satisfied with the conclusions reached by the supreme court of the United States in the case of Hitchcock v. The City.

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 *526under the charter, had power to incur indebtedness in constructing sidewalks and in making sanitary improvements, and to execute written contracts specifying in what installments and at what times that indebtedness was to be paid. That the power to burden the city with debt even for legitimate purposes is dangerous, and might well be withheld, is true. The terms of the charter, however, do not justify us in holding that the city council misconstrued their powers when they assumed to bind the city to pay for the improvements at a future day. An examination of the general act relating to cities and towns, enacted in 1875, and incorporated into the Revised Statutes, fails to show that the policy of the state is to deny to municipal corporations the power to create debts. R. S., arts. 419, 420. See also Constitution, art. XI, sec. 7. In the present condition of our legislation, we do not think ourselves called upon to disregard the great weight of authority because we may deem it unwise to entrust city councils with power to create large debts.

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.]