Gallahar v. Whitley

On Motion for Rehearing.

[6] Appellee, in whose behalf we affirmed the judgment on a former day, insists with much vigor that, by virtue of section 6 of the act of the Thirty-Third Legislature, the power given cities to' include attorney’s fees as specified in Revised Statutes, art. 1011, is available here, notwithstanding the silence of the act of the Thirty-Third Legislature referred to on that subject.- Section 6 invoked reads:

“All powers heretofore granted any city by general law or special charter are hereby preserved to each of said cities, respectively, and the power so conferred upon such cities, either by special or general law, is hereby granted to such cities when embraced in and made a part of the charter adopted by such city; and provided, that, until the charter of such city as the same now exists is amended and adopted, it shall be and remain in full force and effect.”

The article of the Revised Statutes referred to is as follows:

“Subject to the terms hereof, the governing-body of any city shall have power, by ordinance,to assess the whole cost of constructing- sidewalks or curbs, and not to exceed three-fourths of the cost of any other improvement, against the owners of property abutting on such improvement and against their .abutting- property benefited thereby, and to provide for the time and terms of payment of such assessments and the rate of interest payable upon deferred payments thereon, which rate of interest shall not exceed eight per centum per annum, and to fix a lien upon the property and declare such assessments to be a personal liability of the owners of such abutting property; and such governing body shall have power to cause to be issued in the name of the city assignable certificates, declaring the liability of such owners and their property for the payment of such assessments, and to fix the terms and conditions of such certificate.
“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.
“The ordinance making such assessments shall provide for the collection thereof, with costs and reasonable attorney’s fees, if incurred. Such assessments shall be secured by, and constitute a lien on, said property, which shall be the first enforceable claim against the property against which it is assessed, superior to all other liens and claims, except state, county and municipal taxes.”

The article of the statute is not found in the law of 1913 under which the city of Mineral Wells was incorporated, but is a provision relating to the creation of municipal corporations under the general law. By a careful reading of the article it will be seen that it applies to cases where the cost of sidewalks or curbs is assessed, and authorizes assessments “not to exceed % of the costs of any other improvement.”

It seems clear that the assessment involved in this case was not made by virtue of that article, for there is no finding, nor contention even, that the assessment under consideration constituted three-fourths or any other aliquot part of the cost of the improvement. On the contrary, the specific finding is that the assessment does “not exceed the special benefit conferred” by the improvement; thus demonstrating that the assessment was made under the act of the Thirty-Third Legislature specially applying, as noted in our original opinion. The special assessment under the act of 1913 to the extent of the benefits conferred was authorized, even though in excess of three-fourths of the cost of improvement, although such excess would be invalid under article 1011. For aught that appears to the contrary in the record, the assessment in this case did exceed the limit fixed by article 1011. It is easily conceivable that the Legislature would be willing to add reasonable attorney’s fees where the assessment was limited to three-fourths of the cost of the improvement, and not to be so willing where the full cost, to the extent of the benefits conferred, was authorized. We therefore conclude, as announced in our original opinion, that the Law of 1913 applies, and that its limitations must be observed. That act not having authorized the city to impose attorney’s fees, as originally pointed out, we feel that we must adhere to our former ruling, and consequently appellee’s motion for rehearing is overruled.