The writer deeply regrets that he has been unable to agree with the majority opinion affirming the judgment of the court below. This disagreement rests alone on the construction placed on the word "prerequisite" as used in the following provision of articles 1011, V. S. T. C. S. 1914, to wit, "if any such certificate shall recite that the proceedings with reference to making such improvements have been regularly had in compliance with law, and that all prerequisites to the fixing of the assessment lien against the property described in said certificate, and the personal liability, shall be prima facie evidence of the facts so recited, and no further proof thereof shall be required in any court," forming a part of chapter 11, title 22, providing for street improvements by cities and towns. In order to affirm the judgment of the trial court it was necessary, in the condition of the record, to construe the word "prerequisites" as including and having reference to proceedings leading up to the acceptance of the benefits of said chapter in the mode and manner as pointed out in article 1016, Id., providing for referendum on adoption of provisions of this chapter and ordinances to carry out same.
The majority opinion places this construction on the following language contained in the certificates issued by appellee under article 1011, supra, to wit:
"That all the proceedings with reference to making such improvements have been properly had in compliance with the charter and ordinances of the city of Denison and chapter 11, title 22, Revised Statutes of Texas 1911, and that all prerequisites to the fixing of the lien and claim of personal liability evidenced by said certificates have been performed."
In other words, said holding is to the effect that said certificates were sufficient evidence to show within their own terms that the city of Denison had complied with all the requirements of article 1016, whereby the benefits of said chapter had been accepted by said city, to wit, "that the governing body of said city had submitted the question of the adoption or rejection of the benefits of said chapter to a vote of the resident property taxpayers, who were qualified voters of said city, at a special election called for that purpose; that said election had been held in compliance with the law with reference to regular city elections in said city; that the results of such election had been canvassed and determined, from which it was ascertained that a majority of the voters voting upon the question of the adoption of this chapter at such election had voted to adopt same, and that the result of the election thus ascertained has been by the governing body of said city entered upon their minutes." This, by reason of the holding that said term "prerequisites" had reference to and included all of said proceedings necessary to be had before the governing body of the city of Denison was authorized to issue the certificates based upon the proceedings subsequent to the adoption of said chapter providing for the improvement of the streets of said city, for which the certificates involved on this appeal were issued.
Other than the certificates issued by the city council of Denison under the terms and provisions of article 1101, Id., there is no evidence in the record that the city of Denison ever accepted the benefits of chapter 11, title 22, Revised Statutes of Texas, as authorized by article 1006, in the manner as provided for in article 1016, Id., and certainly this court cannot judicially know whether or not the benefits of said chapter 11 were adopted by appellee in accordance with the provisions thereof It is not contended by the majority opinion that before appellee could enter upon the project of improving its streets it was not necessary to have adopted the provisions of said chapter 11, or that it was not necessary for proof of such adoption to have been made; the contention being that the certificates issued under said article 1011, supra, were sufficient evidence to establish as one of the prerequisites therein referred to that appellee had, in the manner required by article 1016, supra, accepted the benefits of said chapter.
The recitations of the certificates constitute no evidence upon this point, for such *Page 833 certificates are meaningless, and have no validity whatever until they are shown to have been issued by proper authority. The city of Denison was not authorized generally, by law, to issue such certificates, but could only be clothed with a special power to do so upon complying with certain conditions precedent, that is, it must have adopted the provisions of said chapter 11. Then, and not until then had it the power or jurisdiction to issue such certificates.
To the mind of the writer it is clear that the recitation of proceedings "with reference to making such improvements" applies only to all proceedings had after the benefits of said chapter had been adopted to improve the streets of the city of Denison, in reference to, and for which, said certificates were issued, in that, the language "that all prerequisites to the fixing of the assessment lien," as used in said article 1011, and contained in said certificates, has reference only to the proceedings had in compliance with the ordinances adopted under the provision of said chapter 11, providing for such improvements as the prerequisites to the fixing of the assessment lien against the property described in said certificates, and have no application to the proceedings necessary to be had by appellee to accept the benefits of said chapter This is borne out by the following provision found in article 1016, supra:
"Said body shall canvass and determine the results of such election; and, if a majority of the voters voting upon the question of the adoption of this chapter, at such election, shall vote to adopt the same, the result of the election shall by said governing body be entered upon their minutes, and thereupon all the terms hereof shall be applicable to and govern such city adopting the same. A certified copy of said minutes shall be prima facie evidence of the result of such election and the regularity thereof; and the facts therein recited shall in all courts be accepted as true."
This undoubtedly precludes the idea that any other certificate than the one provided for in article 1016, supra, shall be evidence of the result of such election and the regularity thereof, or that any other certificate than the one so provided for shall in all courts be accepted as true of the facts therein recited, to wit, the proceedings leading up to the adoption of the provisions of said chapter 11 as provided for in article 1016 thereof.
The writer does not wish to be understood as contending that the certificate provided for in said article 1016 is the only way in which the adoption of the benefits of the provisions of said chapter may be established. This would be, in his judgment, incorrect, for same was not intended to supplant the cumbersome method of establishing the adoption of same by original testimony showing a compliance with the requirements of the law directing the proceedings necessary to accept the benefits of same on the part of the city undertaking so to do.
The certificates involved on this appeal were issued by appellee under the provisions of said chapter 11. By express provisions of this chapter its benefits accrue only to incorporated towns, cities, and villages which accept its benefits in the manner therein provided. Article 1006. The manner of accepting such benefits is pointed out in article 1016, wherein it is said:
"The benefits of the provisions of this chapter shall apply to any city, and the terms thereof extend to the same, when the governing body thereof shall submit the question of the adoption or rejection hereof to a vote of the resident property tax payers, who are qualified voters of said city, at a special election called for the purpose by said city."
Because the record fails to disclose that appellee had accepted the benefits of the provisions of chapter 11, either by the introduction of original proof establishing the proceedings had necessary to adopt the benefits of same, or the introduction of a certificate issued in conformity with the requirements of article 1016, supra, it is the opinion of the writer that the judgment of the court below should have been reversed, and the cause remanded.