14 Tex. 153 | Tex. | 1855
This suit was brought to recover a certain amount of wharfage dues from the appellant, as master of the steamer Neptune. The dues were imposed by the ordinance of the corporative authorities, under their charter.
The first objection, assigned by the appellant, is, that the ordinances imposing these dues, ceased to be valid and operative when Texas became a member of the United States Confederacy; that the authority to enforce such ordinances is repugnant to the Constitution of the United States, because the imposition
The charter of the city certainly limited the imposition of these dues to the specific object of improving the navigation of the Bayou, between Harrisburg and the City of Houston, and the wharves. If, however, the corporation has levied the dues, and failed to make a proper application of them, or made a misapplication of them, the fact of such failure to apply them, or misapplication of them to other objects, would not afford a defence to the payment of the dues, until the corporation had been restrained from the collection of them by an order or adjudication having that object directly in view. But if the corporation has failed to apply the funds so collected, to the specific object for which they were levied, and such neglect has resulted to the injury of any one navigating the Bayou, the corporation would certainly be liable to make compensation for such damages; I mean if a faithful application of the funds so collected would have averted the injuries or loss; and this brings us to the consideration of the plea of reconvention, pleaded by the appellant and overruled by the Court below.
This plea sets up a loss by damage to the defendant’s steamer, that would not have occurred, had the money, as it is alleged, collected for that purpose, been applied to the improvement of the navigation of the Bayou. If the allegations contained in the plea are true, the defendant was entitled to conpensation, and that compensation could well be set up by the plea of re-convention. (Cannon v. Hemphill, 7 Tex. R. 184; Walcott v. Hendrick, 6 Id. 406; Egery v. Power, 5 Id. 501.) For the error in striking out the plea of reconvention, the judgment is reversed and the cause remanded.
Reversed and remanded.