The meaning of this provision was stated by Judge Powell, of the Commission, in City of Beaumont v. Fall, 116 Tex. 314, 324, 291 S.W. 202,205, as follows: "In a word, as long as the state does not, in its Constitution or by general statute, cover any field of the activity of the cities of this state, any given city is at liberty to act for itself. But, when the state itself steps in and makes a general law and applies such law to all cities of a certain class, then we submit that no city of the same class is authorized, under our Constitution, to enact contrary legislation. * * *"
Without determining whether a conflict really exists between the general law in *Page 32 question and the charter of the city of Dallas, we take up a more pertinent question; that is, whether the general statute was ever operative in said city. If not, the question of inconsistency is academic. Article 1086, chapter 9, title 28, R.S. 1925, contains this provision: "Towns, cities and villages, incorporated under either general or special law, which shall accept the benefits of this chapter as herein provided, shall have power to improve any highway within their limits. * * *"
In view of this, the statute in question could not have become the law of any city, of the class mentioned, without its acceptance by said city, and as the city of Dallas has never accepted the benefits of the chapter the alleged conflict could not have arisen. However, if the city had accepted, still its charter provisions would control, in the event of a conflict; this by virtue of article 1105, as follows: "The provisions of articles 1086 to 1096, both inclusive, and article 1104 and of resolutions or ordinances passed pursuant thereto shall be cumulative of and in addition to existing laws pertaining to the making of such improvements. In any case in which a conflict may exist or arise between the provision of said articles and the provisions of any law granting a special charter to any city in this state, the provisions of such special charter shall control." Also see Childress v. Carwile (Tex.Com.App.)235 S.W. 543. We therefore overrule this contention.
Amicus curiæ suggests that the court erred in holding valid the provision of the charter of the city of Dallas, reading, "The lien of such assessment shall revert back and take effect as of the date of the original resolution ordering the improvement," for the reason that the same is inconsistent and conflicts with a general law, to wit, chapter 9, title 28, R.S. 1925, and is prohibited by section 56 of article 3 of the Constitution.
We have just discussed an alleged conflict between the city charter and the statute in question, and, for the reasons stated, determine the matter contrary to this contention.
The further suggestion of amicus curiæ is that this provision of the city charter is a local or special law that authorizes the creation and extension of liens and that section 56 of article 3 of the Constitution was violated in the manner of its enactment. The pertinent provisions of this section of the Constitution read: "The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law, authorizing: The creation, extension or impairing of liens; * * * and in all other cases where a general law can be made applicable, no local or special law shall be enacted."
The charter of the city of Dallas, granted by special act in 1907, was authorized by section 5, article 11, of the Constitution, which at that time permitted the Legislature to grant or amend charters of cities of more than 5,000 inhabitants by special acts. In 1912 this section of the Constitution was amended, and is now known as the "home rule" provision. Cities adopting charters or amendments to charters thereunder are given exclusive dominion, control, and jurisdiction over all public streets, and authority to provide for public improvements, such as paving streets, etc., and to charge the costs of such improvements against abutting property, by fixing a lien against the same and a personal charge against the owner, according to an assessment specially levied in an amount not exceeding the special benefit any such property receives in enhanced value by reason of the improvement, etc. See article 1175, subdivision 16, R.S. 1925.
As authorized by the "home rule" amendment, and the enabling act passed thereunder, the city of Dallas, by an amendment to its charter, enacted the paving law, of which the provision under review is a part. The "home rule" amendment stripped the Legislature of the power theretofore possessed to grant or amend charters of cities of 5,000 inhabitants, and vested the same in said cities, to be exercised by a majority vote of their qualified voters, and this power, in the cities, is exclusive. Le Gois v. State, 80 Tex. Crim. 356, 190 S.W. 724, Vincent v. State (Tex.Com.App.) 235 S.W. 1084. For these reasons, we disagree with the suggestion of amicus curiæ and hold that the city of Dallas was not forbidden by any provision of section 56, article 3, of the Constitution to adopt the charter provision under discussion.
Appellant, Smith Bros., Inc., seeks rehearing on the ground that the court erred in refusing to recognize its right to a lien on the abutting lot for the value of the improvement. On this issue a majority of the court adheres to the reasons stated in the original opinion, for refusing to recognize the existence of a lien in favor of appellant; therefore the motion is overruled. The writer, however, dissents from this latter view for reasons stated below.
All motions for rehearing are overruled.
As disclosed in the original opinion, the charter of the city of Dallas provides that "The lien of such assessment shall revert back and take effect as of the date of the original resolution ordering the improvement *Page 33 and the passage of such resolution shall operate as notice of such liens to all persons. * * *"
The construction given this provision of the charter, adhered to by the majority, is that the lien became effective at the time of the passage of the original resolution, and on no other date, and, as the lot in question was at that time the homestead of the owner, no lien could attach, although at the time the improvement was completed and accepted by the city, and the final ordinance levying the assessment was passed, the property had changed ownership, was no longer a homestead, and there then existed no legal reason why the lien could not have attached. That this is the meaning of the holding is shown by the following excerpt from the original opinion, to wit: "We hold that, as the property was exempt on the date designated for the lien to become effective, no lien was created and there being no lien created, there was nothing that could subsequently bring a lien into existence, even though the exemption status of the property ceased."
The events and dates involved on this issue are these: On January 23, 1924, the board of commissioners of the city of Dallas passed the original resolution ordering the street improvement; the city engineer thereupon prepared specifications, these were approved by the board, and bids for the work solicited by advertisement, and the contract was let to appellant, Smith Bros., Inc. On November 11, 1924, the city engineer filed with the board a list of all owners of property upon the street, description of the property, total costs of the improvement, cost per front foot, and as to each property owner. This statement was approved by the board, a resolution was passed determining the necessity for assessing a part of the costs of the improvement against property owners and their property, and setting a time for hearing owners as to benefits, errors, invalidity in proceedings, or other matters connected with the improvement. After due notice, the hearing convened December 1, 1924, and continued from day to day until February 2, 1925. At the hearing appellee Lucas appeared and objected to the imposition of any burden for the improvement against the property in question. During the time of these proceedings, the lot in question belonged to Mrs. Mae E. Lucas, wife of appellee Lucas, in her own separate right, and was the homestead of the family, composed of Mr. and Mrs. Lucas and three minor children of Mrs. Lucas by a former marriage. On February 20, 1925, Lucas and wife were legally divorced, and on the day following Lucas purchased the lot in question from his divorced wife, and immediately moved into and has since occupied the same, but it had lost its status as a homestead at the time of final assessment. Between February 2, 1925, the conclusion of the hearing, and September 21, 1925, the date of the passage of the final ordinance, the ownership of the property and its status were changed as above stated, the work of improvement was completed and accepted, the assessment levied, and certificates of special assessments issued to the contractor.
This situation, according to the reasoning of the majority, assimilates this case to those where attempts were made to fix attachment and contract liens on homesteads. In the latter cases it was held that if, at the date the lien was to become effective, the property sought to be charged was homestead in character, no lien was created, and that none could thereafter come into existence. The holding in this class of cases is based on the following provision found in section 50, article 16, of the Constitution, to wit: "* * * No mortgage, trust deed, or other lien on the homestead shall ever be valid, except for the purchase money therefor, or improvements made thereon, as hereinbefore provided. * * *"
The reason for the rule was reduced to a short phrase by Judge Robertson, in Inge Boring v. Cain, 65 Tex. 75, 80, as follows: "We are of opinion that the clause quoted from the Constitution of 1876 renders all liens upon the homestead, not expressly excepted, absolutely void, and that they are not vitalized by the divestiture of the homestead character." This holding was followed in Hays v. Hays, 66 Tex. 606,1 S.W. 895; Willis v. Mike, 76 Tex. 82, 84, 13 S.W. 58; Mayers v. Paxton, 78 Tex. 196, 199, 14 S.W. 568.
I submit, however, that the rule announced in these cases is not applicable here; that this case should be assimilated to and ruled by the doctrine announced in cases involving judgment liens. The leading case on this subject is Marks v. Bell, 10 Tex. Civ. App. 587, 591, 31 S.W. 699,701, decided by this court. In the course of the opinion Judge Finley said:
"The levy of an execution or attachment upon the homestead is absolutely void, and the fact that the property afterwards ceases to be exempt does not give life and validity to such levy. It is also true that any contract for a lien upon the homestead, unless within the exceptions of the Constitution, is utterly void; no subsequent abandonment of the homestead will give validity to the contract, and, the contract being wholly void, no lien can arise thereunder. Does the fact that the property is exempt as the homestead when the judgment is recorded prevent the judgment lien from attaching when the property ceases to be the homestead and remains the property of the judgment debtor? The recording of a judgment is not the seizure of specific property for the purpose of applying it to the payment of a debt, as is the case in the levy of an execution or attachment. *Page 34 It is a statutory notice to the world that the defendant in the judgment owes the debt to the plaintiff, and by statute this judgment, when properly recorded, becomes a charge upon all real property, subject to execution, situated in the county wherein the judgment is recorded, and which is owned by the judgment debtor at the time the judgment is recorded, or which he may thereafter acquire. It is certain that if the judgment had been recorded after the abandonment of the homestead, and when it was subject to execution, the judgment lien would have attached. As the recording of the judgment was valid in all respects in the first instance, and not a specific seizure of the homestead property, how could a record thereof at a later date give greater force and effect to it? To ask the question announces the answer, that the original record of the judgment would be of equal force. Under our statute, a recorded judgment hangs over the defendant, and by virtue of it a lien attaches to all his real property, in the county where the judgment is recorded, which he owns at the time the judgment is recorded, or acquires thereafter, and which is subject to execution, or becomes subject to execution during the life of the judgment record. The lien does not relate to the date of the recording of the judgment, but to the time when the property becomes subject to the lien."
To the same effect, see Glasscock v. Stringer (Tex.Civ.App.) 33 S.W. 677; Bradley v. Janssen (Tex.Civ.App.) 93 S.W. 506; Harrison v. First National Bank (Tex.Civ.App.) 224 S.W. 269, 276; Id. (Tex.Com.App.) 238 S.W. 209.
In the Harrison-Bank Case (Tex.Civ.App.) 224 S.W. 276, the court used this language: "It thus appears that by the decisions of this state it seems to be now well settled that a judgment lien does not come within the operation of section 50, article 16, of the Constitution of our state, which provided that `no mortgage, trust deed, or other lien on the homestead shall ever be valid,' with certain stated exceptions not applicable here." From these holdings the rule is deducible that the lien of an abstracted judgment is not within the operation of section 50, article 16, of the Constitution in the same sense as are attachment and contract liens.
I therefore submit that for the same reason the lien here involved is not within its meaning, for, like the judgment lien, the lien of the assessment results neither from levy nor contract, but is altogether the creature of law. While a contract between the city and the contractor formed the basis for the improvement, the owner's connection therewith was involuntary and purely constructive.
Aside from this, however, there is still another reason why, in my opinion, appellant's right to a lien on the abutting lot should be upheld. The provision of the charter that "the lien of the assessment shall revert back and take effect as of the date of the original resolution," is a fiction, pure and simple. In truth, neither the debt against the owner nor the lien against the abutting property could have had a legal existence until the completion of the improvement; hence the only purpose to be served by this relating back provision of the charter was one of notice to those subsequently dealing with the property, to the effect that, on completion and acceptance of the improvement, a personal liability, for the amount of its costs, would be assessed against whoever at that time might be the owner of the property, and that a lien would be fixed thereon and made to relate back to and attach as of the date of the original resolution.
In some jurisdictions similar contracts for public improvement have been given that meaning, even in the absence of a "relating back" provision, such as we have here. Hester v. Thompson, 217 Mass. 422,105 N.E. 631, Gomeringer v. McAbee, 129 Md. 557, 99 A. 787. The doctrine of relation, whether by enactment, as in the charter of Dallas, or by implication, as in the cases cited above, is employed only when necessary to prevent injustice that may result from happenings between the real and fictitious dates of the major event.
The doctrine was defined by the Supreme Court of the United States, in Gibson v. Chouteau, 13 Wall. 92-100, 20 L. Ed. 534, 537, as follows: "By the doctrine of relation is meant that principle by which an act done at one time is considered by a fiction of law to have been done at some antecedent period. It is usually applied where several proceedings are essential to complete a particular transaction, such as a conveyance or deed. The last proceeding which consummates the conveyance is held for certain purposes to take effect by relation as of the day when the first proceeding was had."
In Peyton v. Desmond, 129 F. 1, 11-13, Judge Van Devanter, for the Circuit Court of Appeals, after stating that the doctrine of relation was of equitable origin, invoked to promote justice and give effect to the lawful intention of parties (page 13), said: "The principles underlying and supporting the doctrine of relation are such that it may be as readily invoked to remedy or correct a loss such as is here disclosed, occurring while the claim was being perfected, as to prevent the loss of the entire right or title through an intervening claim." Also see Krakow v. Willie, 125 Wis. 284, 103 N.W. 1121, 1123, 4 Ann.Cas. 1016; Canfield v. Jack, 78 Okla. 127, 188 P. 1040, 1043; Knapp v. Alexander, 237 U.S. 162,35 S. Ct. 515, 59 L. Ed. 894, 898.
Thus we see that the doctrine is simply a fiction of equitable origin, employed only when necessary to prevent wrong or injustice. Under the facts with which we are now dealing, to permit Lucas to retain the lot, enhanced in value, relieved of any charge for *Page 35 the improvement, would in effect subordinate truth to fiction. In no event, whether exempt or not, could the lien have attached to the lot on the date of the original resolution, because at that time it was inchoate. However, when Lucas purchased the property, it lost its status as a homestead and, the lien being consummate, there existed no impediment whatever to its complete operation at the time the assessment was levied.
The cost of such improvements is regarded by the courts, a special charge against abutting property without reference to its ownership. This doctrine is announced in 44 C.J. 802, § 3407, as follows: "The lien of a special assessment is not against the owner of property or his right of possession, but it is against and attaches to the property itself without reference to the person in whom the title is actually vested. * * * "
The reason for the rule is that the abutting property is enhanced in value by the improvement, as this alone furnishes the legal justification for the assessment. That these special assessments are to be continuing charges against the abutting property benefited by the improvement, from the date of the assessment, is evidenced by the provision for reassessment in subdivision (m) of article 10 of the charter, as follows: "Whenever any error or mistake shall occur in any proceeding provided for by this act, it shall be the duty of the board of commissioners to correct the same and whenever it shall have been determined that any assessment against any property or its owners, or lien against such property or claim of personal liability fixed or attempted to be fixed under the terms hereof, is, for any reason, invalid, unlawful, or unenforceable, then it shall be the duty of the board of commissioners to reassess against such property and the owners thereof such proportion of the cost of making such improvements as may be lawful and to fix a lien against said property and declare the personal liability of the owner thereof," etc.
This reassessment may be made at any time within five years from the date of the original assessment, and proceeds on the evident idea that the lien is brought into actual existence by the assessment as limitation begins to run from that date.
This idea seems to have been the controlling principle in similar cases adjudicated in other states. The case of Commissioners, etc., v. Inhabitants, etc., 40 N.J. Eq. 27, involved the validity of a reassessment to cure defects in a prior invalid one for the costs of a public improvement. After the invalid assessment, the property was sold and the rights of a mortgagee attached before the Legislature passed an act authorizing the reassessment. In the course of the opinion, the Supreme Court of New Jersey cited the case of Doyle v. Newark,34 N.J. Law, 236, and then said: "That case established, also, the principle that where the Legislature authorizes a reassessment for the cost of a municipal improvement in the place of one that has been set aside, the new proceedings are to be regarded so far as the rights of persons interested in the land are concerned, as an original assessment, precisely as if there had been no previous one, and hence that purchasers or mortgagees, after the former assessment was set aside, and before the second one was made, are entitled to no immunity on that ground." To the same effect, see Comley v. American Standard, etc., 130 Ky. 262,113 S.W. 125.
The idea is further strengthened by the holdings of courts to the effect that cases of this nature are actions in rem. On this point the Supreme Court of Louisiana, in Rosetta, etc., v. Jollisaint, 51 La. Ann. 804, 809, 25 So. 477, 479, said: "On this theory, we feel safe in holding that the lien and right of pledge resulting from such assessments of necessity attach to the property of the abutting proprietor, without reference to the person in whom the title is vested, and that proceedings taken for their enforcement are proceedings in rem, notwithstanding the owner is cited for the purpose of carrying same into effect. If this were not so, the enactment of such laws would be a vain and fruitless proceeding." Also see Page v. W. W. Chase Co., by the Supreme Court, of California, 145 Cal. 578,79 P. 278.
For these reasons, I believe Smith Bros., Inc., have a lien on the abutting lot for the costs of the improvement, that its motion for rehearing should have been granted, and our former judgment modified to the extent of decreeing foreclosure of the lien.