64 S.W.2d 799 | Tex. App. | 1933
The governing body of the city of Dallas, acting under its charter and the provisions of chapter 17, title 28, R.S. (article 1201 et seq.), adopted a resolution providing for the widening and straightening of South Akard street; all preliminary steps were taken down to and including the enactment of an ordinance assessing abutting property specially benefited from the improvements. Mrs. Dela Wright, wife of G. G. Wright, appellants, owner of a lot fronting 94 1/2 feet on Akard, assessed $13,584.35 for special benefits and enhanced value by reason of the improvement, filed suit, under article 1219, R.S., to set aside the proceedings, alleging certain errors and invalidities therein, and, further, that the property had not been benefited or enhanced in value in any amount. The city traversed these allegations; the case was submitted to a jury, and, on findings to the effect that appellants' property had received special benefits and was enhanced in value to the extent of $9,500, the court rendered judgment against appellants accordingly, from which they appealed.
This is the second appeal of the case; the former involved simply the right of appellants to a temporary writ, enjoining the city, during the pendency of the suit, from selling or assigning the tax or lien certificate; record of this appeal is found in (Civ. App.)
Appellants say that the assessment is void, because, when made, the governing body of the city was vested with both legislative and executive authority, contrary to both State and Federal Constitutions (Const. Tex. art. 2). In view of the history of municipal government in this state, revealing legislative provisions for and judicial approval of similar proceedings, we do not deem it necessary to say more, on this point, than that the legislative body of the city, the commission, in levying the assessment against appellants' property, acted within the scope of its undoubted authority.
Another attack made on the proceedings is that the commissioners, appointed to assess damages for property taken to widen the street, failed to notify appellants of said hearings; the contention being that, as their property was subject to assessment for the cost of the improvement, including damages for the property taken, they were entitled to notice of such hearings, and to participate therein. To this contention we cannot agree. *800
The commissioners were not required to notify any one, except those interested in the title to the property actually taken. See article 3264, R.S.; Carter v. Marshall Electric Co. (Tex.Civ.App.)
Appellants also contend that the proceedings are invalid, because, in awarding damages for property taken, the commissioners did not at the same time assess the damages, if any, to the portion not taken, or the benefits thereto, if any. Even if deemed a valid objection, which we do not intimate, appellants are in no position to urge the same, as no part of their property was taken, and they were not proper parties to the condemnation proceedings involving property of others.
In their fourth and fifth propositions, appellants contend that the commissioners acted arbitrarily in the distribution of the costs of the project and in making the assessment. The record discloses that the commissioners accorded appellants a full hearing, evidence was introduced thereat, the proceedings were orderly, and we fail to find any evidence of arbitrariness on the part of the commissioners.
Appellants also present the question, raised for the first time in their motion for a new trial, that the court erred in defining the term "special benefits." After a careful comparison, we fail to perceive any material difference between the definition of the term used by the court in its charge and the definition appellants insist should have been given, but, be that as it may, under a plain provision of the statute (article 2185, R.S. 1925), the failure of appellants to object to the charge before it was read to the jury waived the objection.
Appellee urges "independent counter propositions" (in legal effect, cross-assignments of error), contending that, as the assessment of $13,584.35 against appellants' abutting property was not fraudulent, or made in bad faith, the court erred in not instructing a verdict against appellants for the full amount of the original assessment; therefore we are urged to reform the judgment by increasing its amount from $9,500 (the amount found by the jury) to $13,584.35 (the amount of the assessment levied by the city authorities), and, as reformed, that same be affirmed. The essence of this contention is that the proceedings leading up to and including the enactment of the assessing ordinance should be considered prima facie correct and valid, and that the burden is upon appellants to allege and show that the assessment was the result either of bad faith or arbitrariness on the part of the city commissioners.
Appellee cites authorities from other jurisdictions that seemingly sustain this contention. These decisions may or may not be correct, under peculiar laws influencing the decisions, but such is not the rule in this state. We held on first appeal that the filing of the statutory suit by appellants "effectually suspended the assessing ordinance as to appellants and forbade further action thereunder until the issues involved in the suit are settled."
Chief Justice Cureton, denying the application for writ of error on first appeal, used the following pertinent language (
We therefore overrule the cross-assignments of appellee, and, finding no error in the judgment of the trial court, the same is in all things affirmed.
Affirmed.