City of Cleburne v. Gulf, Colordo & Santa Fe Ry.

66 Tex. 457 | Tex. | 1886

Robertson, Associate Justice.

Sec. 3 of Art. 11, of the Constitution, prohibits municipal corporations from making appropriations or donations, or loans of its credit to private corporations. The object of this provision was to deprive municipalities of the power possessed by them under the constitution of 1869, in the exercise of which many counties and towns in'the state assumed burdens, not yet discharged, in anticipation of benefits never realized. The increase in population and values expected from railway connection in many instances never came; and the tax, not lightened from these sources, depressed values, prevented immigration, and became a curse to the localities which had invited it as a blessing. In localities in which the delusion had not been dissipated by experience, the people were still stimulated by false hopes and fraudulent assurances to make extravagant donations to coveted railroads. While the power lasted, corporate greed found local pride and ambition an open way to municipal revenues.

The scheme was generally consummated by a contract by which the railway company bound itself to construct its line through a county, or in a given distance of a town, in consideration of so many thousand dollars of negotiable bonds of the county or town. This section deprived municipalities of the power to make such contracts. Its terms are broad enough to prohibit a city or town in its corporate capacity from appropriating its revenues or using its credit to obtain right of way and depot grounds for a railway company, and the section must be given this effect, unless it is modified in this particular by Section 9 of Art. 10 of the constitution.

That Section (9) requires railway companies projecting a road within three miles of a county seat, to run through the county seat, if not prevented by natural obstacles: “provided such town or its citizens shall grant the right of way through its limits and sufficient ground for ordinary depot purposes.” The duty of the railway company is the same, whether the grant is made by the town or by its citizens. The power of the citizens to contract is not limited. They may grant the right of way and depot grounds from lands already owned by them, or they may purchase the needed lands for cash or on credit, and make the grant, and thus secure the road.

Before they can make the grant they must acquire the subject of it, but there is no restriction upon their power to make the necessary acquisition. It is not made the duty of the town to make the grant, the duty would imply all the powers necessary to its proper execution, but the grant is authorized to be made by the town or its citizens. It is contemplated that the town cannot or will not exercise its authority in some instances. It can exercise it in all cases in wMch the right of way is over a street and the land for depot purposes is owned by the town, without incurring any debt. The grant of right of way over the street would be subject to the right of abutting proprietors to recover damages caused by the new servitude. Railway Company v. Eddins, 60 Tex., 656.

But the grant by the city would pass the right of way. The citizens may act if the city cannot or will not. The power to borrow money and buy the land in order to make the grant, is not expressly conferred; if it exists it must be implied from the mere permission to make the grant, which can be made in certain contingencies without the power, and which the citizens may make without the aid of the city if the city either cannot or will not act. Section 3 (Art. 11) forbids a city to make either a donation or appropriation for the benefit of a railway company. Section 9 (Art. 10) authorizes a donation in the special case mentioned in the proviso, but neither expressly nor by necessary implication authorizes an appropriation in any case.

A power will be implied only when without its exercise an expressed duty or authority would be nugatory. Cooley on Const. Lim., 235, et seg. and notes.

Municipal powers are strictly construed in the United States (Id.) and the entire article in the constitution of 1875, on municipalities inditates a determination to impose new limitations on the powers of cities, towns and counties. From the authority conferred in one section to make a grant, the power to acquire the subject of the grant in flat violation of another section, when the grant is compulsory in no case, is possible in some cases without the power, and may be made by the citizens when the city does not own the subject, cannot be fairly implied. The agreement of the city of Cleburne to purchase for the railway company right of way and depot grounds, or to refund the money paid out for this purpose by the railway company, contemplates an appropriation for the benefit of the railway company prohibited by section 3 of Art. 11 of the constitution. The ordinance authorizing the scrip in controversy and the scrip issued is void. It was not the purpose of the city to exempt the railway company from taxation under Art. 436, Revised Statutes. If the ordinance authorizing this scrip could have such effect, its repeal revoked the exemption. It is not certain, by any means, that, under Art. 436 a city could exempt from taxation, the general property of the railway company. At all events, such was not the purpose of any ordinance in this record.

The judgment below, affirming the validity of the city ordinance of September 17, 1881, and of the scrip issued under it, and enforcing the terms of both as a contract binding on the city of Cleburne must be reversed, and, as the case was tried by the court ivithout a jury, a general judgment for the defendant below will be here rendered.

It is so ordered.

BEVERSED AMD BEMDERED.

[Opinion delivered June 18, 1886.]