For the purpose of filing an amendment to our answers heretofore filed to the questions certified in this case, the motion for rehearing is granted.
The second question propounded by the court reads as follows: "In case no lien should be enforced against the homestead of appellees, are they or the appellee Henry W. Cortes personally liable for the amount of the certificates?"
Our attention has been called to the provision of the charter of the City of Houston which declares that act to be a public law, therefore it is the subject of judicial cognizance.
By Act of the 21st Legislature, approved March 15, 1889, section 23 of the original charter of the City of Houston was amended so as to embrace several sections in which the power to make local assessments for street improvement is conferred upon the City Council of that city and the manner in which that power is to be exercised is regulated. Provision is made for the payment of so much of the cost of such local improvement as shall be charged against the owner of the abutting property in four equal annual installments, and in such case it is provided that a certificate shall be issued for the amount chargeable against each lot or block, which shall state the amount to be paid each year, the name of the owner, and describe the lot, and among other things not necessary to mention, the certificate is required to state "that said sum of money is a tax against such property owner, named therein, and a lien upon the property described." The charter of the city contains this clause: "Should the property owner fail to pay the amount of said certificate when the same becomes due or when any installment provided for in the same becomes *Page 295 due, the owner thereof may institute suit for the enforcement of the tax and the foreclosure of the lien provided for in any court having jurisdiction." (Special Laws 21st Leg., p. 104.)
The statement accompanying the certified questions contains this language: "The assessment was made and the improvement certificates were issued in compliance with the said charter so as to make them a lien on the land except for the fact that it was the homestead of the appellees." Under the terms of the charter as above quoted, whenever the assessment constitutes a lien upon the property it is likewise a personal charge against the owner of the property, and the right of personal action is given against the owner named in the certificate upon failure to pay, as well as a foreclosure of lien. As we have before held, it was within the power of the Legislature to confer this authority upon the city council, and having conferred it, the personal responsibility attaches, although the property is not subject to the lien by virtue of the constitutional exemption of the homestead.
In lieu of the answer to the second question heretofore filed, we answer, that the appellee Henry W. Cortes, being the owner of the property at the time the assessment was made, is personally liable for the amount of the certificates issued by the city council by virtue of said assessment. Mary M. Cortes, being a married woman, is not liable personally for such assessment.
JANUARY, 1897.