287 · Regular meeting of the City Council, Austin, Texas, May 20, 1909. Hon A P Wooldridge, Mayor ,presiding: Roll called: Present Mayor Wooldridge, Councilmen Barthol o mew, Gracy, Hart and Powell 5 The Minutes of the last regular meeting were read and approved . Petitions, m morials, etc: Petition C.O. Smith & Co refuse pipe P. & C. The Mayor laid before the Council a petition of C O Smith & Co ,asking the Council to refund to him amount paid for water pipe laid in Glenwood addition, which was read and on motion of Councilman Hart referred to Councilmen Bartholomew & Gracy for investigation and report, by the following vote: Yeas Mayor Wooldridge, Councilmen Bartholomew, Gracy, Hart and Powell 5 Nays none. Reports of Councilmen : Councilman Gracy made a verbal report as to City finances. Hart on Ferguson remit fine Councilman Hart to whom was referred a petition to remit fine assessed in the Recorders Court against H Ferguson, presented a report ,stating that he had carefully investigated the case, and recommended that the petition be granted. The report was adopted by the following vote : Yeas Mayor Wooldridge, Councilmen Bartholomew, Gracy, Hart and Powell 5 Nays none. Hart on petition Santiago Caruna - fine Councilman Hart to whom was referred the petition of Santiago Caruna asking to have fine assessed against him in the Recorders Court remit ted, presented a report recommending that the petition be granted. On motion the report was adopted by the following vote: Yeas Mayor Wooldridge, Councilmen Bartholomew, Gracy, Hart & Powell 5 Nays none. Councilman Hart to whom was referred the communication from Marshal Laughlin recommending that a fine and costs assessed against one John Soultz, an afflicted boy, in the Recorders Court be remitted, presented a report recom -mending that the request be granted .On motion the report was adopted. The Mayor laid before the Council the following communication from the City Atty. . M ay 19th 1909. To the City Council of the City of Austin. Gentlemen : Opinion City Atty Paving St. Imp. Referring to your inquiry as to the right of the City of Austin to compel abutting property owners to pave the streets in front of their property, I have the honor to advise you as follows: The case of Hutcheson vs Storie, 51 S W Rep,848, which is the leading case on the subject in Texas, and which bases the doctrine announced therein largely on the rule laid down in Villiage of Norwood vs Baker,172 U S,269,blazed the way for municipal improvement in Texas. While it is true that the Court in this case held the ordinance of the City of Houston providing for street improvements by assessments against abutting property owners as unconstitutional, because the provisions of the ordinance tended to deprive persons of their property without due process of law, nevertheless this case by suggestion pointed out a possible method of accomplishing street improvement. This case held that an assessment could not be made by the City Council against abutting property own ers for public improvements which failed to base such ass -essment upon the value of the special benefits to such property own ersand also --- Page break --- . the City Council could not in itselfdetermine the benefits nor that the benefits would be presumed to equal the Assessment. And if there were no special or peculiar benefits the assessment would be simply an arbitrary exaction which cannot be sustained; but if by due process of law benefits accruing to the abutting property were actually discoverable,then the amount of such benefits and not in excess thereof could an assessment be levied against the property. In Storey vs Cortez,90Texas,283,it is affirmatively held that where the charter of a City so authorizes,the cost of local improvements, when responsive to the benefits derived,may be made a personal charge against the owner,as well as a lien against the property itself. The twenty-ninth Legislature enacted an amendment to the cha r -ter to the City of Austingranting it power to fix and determine street and sidewalk improvements.The provisions of this charter amendment followed the doctrine above laid down. Acting under authority of such amendment the City Council passed an ordinance of May 21,1906,carrying into effect the provisions of said amendment by providing for the paving of, Congress Avenue and East sixth street. Under the provisions of this ordinance an action was brought by the City of Austin against Joseph Nalle in the County Court of Travis County,Texas,for the purpose of assessing the benefits to his prop -erty to be derived on East Sixth street by paving the street in front of said prop erty.Judgement was obtained by the City against said de -fendant in accordance with the procedure prescribed by said ordi -nance,which was affirmed by the Court of Civil Appeals in the case of Nalle vs City of Austin,103 S W Rep,825. The opinion in this case upheld in every respect the validity of both the charter amendment granting the right to assess for benefits received and the proceedings provided for by the ordinance for deter -mining such benefits and making assessments therefor,and expressly held that the City Council could provide by ordinance for the making of assessments before the improvement is made.After this case was de -cided,but before the paving was actually done in front of the said premises of Joseph Nalle,suit was brought by the City against him to foreclose the lien provided for in the charter amendment and ordinance .Judgement was rendered against the City in this case by the Dist Court,and was affirmed by the Court of Civil Appeals,on the ground that the suit of the City for foreclosure was premature and that the benefits to the abutting property could not be determined un til the paving was actually done. Some months ago the Supreme Court granted a writ of error in this case, which writ has since been pending,and I am informed by the Clerk,that the Supre Court this morning did not hand down an opinion in the case.Action from this Court may be expected at any time,and is being watched with interest by all Cities of the State,since it will settle the question whether or not it is necessary for the --- Page break --- .City to pave first in front of the abutting property before it can move to Col-lect under foreclosure. The paving amendment above referred to has been read into the new charter of the Q City,with some additional provisions, and under it there is ample grant of power to compel abutting property owners to pay for paving in front of their premises in proportion to the benefits they receive. I wish to call the attention of the Council to the fact that in enacting the ordinance above referred to, the paving on west sixth street was not provided for, and I would, therefore, suggest that an ordinance be enacted providing for the pave-ment of that thoroughfare within certain limits. By your direction, I shall at some future date prepare a general paving ordinance. Very Respectfully. J Bouldin Rector, City Attorney. P S It has been held that the assessment for public improvements is not a tax, and therefore, a lien to secure same will not attach to a homestead; but in such cases the Municipality may proceed against the abutting property owners and obtain personal judgement against such persons for such improvements. Rector. On motion the report was ordered filed. Unfinished business: Amendment to Pound Ordinance The Mayor laid before the Council an ordinance to amend Articles 9 & 10, Title 2 of the Revised ordinances of the City. The ordinance was read the second time. Councilman Hart offered a substitute for the ordinance, and moved to adopt the substitute in lieu of the original ordinace, which motion prevailed by the following vote: Yeas Mayor Wooldridge, Councilmen Bartholomew, Gracy, Hart and Powell 5 Nays none. The ordinance was then passed by the following vote: Yeas Mayor Wooldridge, Councilmen Bartholomew, Gracy, Hart and Powell 5 Nays none. New business: The Mayor laid before the Council the following communication from Auditor Morris. Austin, Texas, May 20, 1909. To the Honorable o ity Councilof the City of Austin, Texas. Gentlemen: Referring to the discrepancies existing between the Cash books and Customers Ledgers of the Water & Light Office for the year 1908, I beg leave t o advise that, as directed, I have made a brief investigation for the purpose of ascertaining the cause. The Power accounts being involved and fewer in number, were selected for the examination. To go directly to the cause of the dicrepances I have to report that I found that cash posted to the credit of Customers Power Accounts, amounting to $ 208.10 had not been entered on the cash books as required. This led to an examination of the water & Light accounts of the customers, who paid the power accounts above mentioned., with a view to ascertaining whether or not the books showed that such persons paid their water and light accounts at the same time that they paid their power accounts. I found that the customers ledgers showed that they had, but the cash so posted did not appear on the cash book. --- Page break --- 290 This brief.zzammixsixmaxinvestigation points directly to the cause of at least a portion of the discrepancy. Nothing short of a thorough and complete examination in detail of the records involved can give a correct and satisfactory result. By doing this, the facts as to the entire amount of the discrep-ancy can be ascertained. Respectfully submitted. Milton Morris, Auditor. On motion the report was ordered filed. Paving, 6th St. By Councilman Powell an ordinance to provide a means for fixing and determining the assessment of benefits, and of the proportion and amount of costs to be paid by abutting property owners for street paving to be done on west sixth street in the City of Austin, Texas. The ordinance was read the first time and on motion the rule was suspended and the ordinance placed on its second reading, by the following vote: Yeas Mayor Wooldridge, Councilmen Bartholomew, Gracy, Hart and Powell 5 Nays none. The ordinance was read the second time, and the rule further suspended and the ordinance read the third time, by the folowing vote: Yeas Mayor Wooldridge, Councilmen Bartholomew, Gracy, Hart and Powell 5 Nays none. The ordinance was then laid over until the next regular meeting of the Council. $500 Adms. Street Work By Councilman Powell an ordinance appropriating the sum of $ 500.00 for the purpose of paying weekly pay rolls street dept. The ordinance was read the first time and passed under suspension of the rules by the following vote: Yeas Mayor Wooldridge, Councilmen Bartholomew, Gracy, Hart and Powell 5 Nays none. Ofc & Bridge Keeper By Councilman Hart an ordinance creating the Office of Bridge Keeper. The ordinance was read the first time and passed under suspension of the rules by the following vote: Yeas Mayor Wooldridge, Councilmen Bartholomew, Gracy, Hart and Powell 5 Nays none. Amending Art 25, Chapt 3 ordinance By Councilman Hart an ordinance amending Article 25, Chapter 3, of the revised ordinances of the City. The ordinance was read the first time and passed under suspension of the rules by the following vote: Yeas Mayor Wooldridge, Councilmen Bartholomew, Gracy, Hart and Powell 5 Nays none. $10,000 Salaries Water & Light By Councilman Bartholomew an ordinance appropriating the sum of $ 10,000.00 for the purpose of paying salaries of Officers and Employees Water & Light Dept. The ordinance was read the first time and on motion the rule was suspended and the ordinance placed on its second reading by the following vote: Yeas Mayor Wooldridge, Councilmen Bartholomew, Gracy, Hart and Powell 5 Nays none. --- Page break --- affirs approved y/es with dept Ordinance re-calling the office of Auditor Park Committee Koa. Johnson