*1 hоldings Supreme Court, former the trial court had judgment power to enter the correct and make the record filing speak truth. He also held that reason mo- prescribed by for a new trial within the time tion statute jurisdiction pass upon had the court the case to that motion question Supreme later. In case exact before the Court Watkins, Company ease Pierce v. and before the court case, in this was before the court for consideration or de- cision. Justice modify Chief Cureton did not intend by Judge rule announced Pierson in the case of Pierce Com- pany expressly following Watkins and so stated lan- guage : Watkins,
“The Texas, 153, case of Phil H. Pierce v.Co. W., 905, application 263 S. has no to the case us. before that case the motion for new trial was not filed within statutory time.” stated, judgment
For the reasons herein of the Court Appeals judgment of Civil is reversed and the of the trial court is affirmed. foregoing opinion adopted as the
Supreme Court, judgment will entered in accordance therewith. Cureton,
C. M. Chief Justice. JULY, 1931 Bobbitt, Fort Worth v. Robert Lee Attorney General. No. 5690. Decided 1931. March rehearing July 22, Motion for overruled W., Series, 470; W., Series, 228.) 2d 41 S. 2d *2 Rouer, City R. Attorney, George E. Kemble, C. both Worth, McCall, Dallas, Fort D. John for relator. contention relators that of article XI, 7, requiring adequate pro sections 5 and cities to make creating debts, impose vision when do not limitations as to the amount limit debt explained can incur. As Judge Denman, case, post, Terrell those protection for the provision adequacy creditors to assure the Texas,
made to the indebtedness. Constitution of XI, 4, 7; article sections 5 and Harris’ Annotated Constitution Texas, VIII, 9; note under article section Terrell v. Des saint, Texas, W., 593; Texas, Constitution of art. III, 52; (Com. sеc. App.), (2d) Hunt v. Atkinson 12 S. W. 142; W., 1105; City McCutcheson v. 294 S. Wozencraft *3 Magnolia City (Com. v. Houston of App.), Park 276 S. 685.W.
The of said law are not conflict with those sections of provide the Constitution of which Texas that no by debt shall be provision created or incurred a unless levying, is made for pay assessment and collection of tax to principal interest, good for the and sufficient reason that said law permit incurring does not authorize or of a Constitution, XI, “debt” city. 5, 7; art. secs. City Waco, Texas, 83, 322; McNeil W., chapter 43, v. of 89 33 S. Acts of Legislature; Fourth Called Session of 41st v. Sowell (Com. App.), W., 521; Griffith 294 S. Laredo v. Frishmuth (Civ. W., App.), 190; 196 S. Southern Public Co. Texas Service (Civ. 942; App.), (2d) City v. Jahn 7 Aransas S. W. of Texas, Keeling, 349, W., 818; Pass v. 112 247 Wallace v. S. County, Texas, 279, Commissioners’ Court of Madison 118 15 (2d) 535; (Civ. 220; App.), W., S. W. Corsicana v. Mills 235 S. City 984; v. (Civ. App.), W., Masterson of 142 Beaumont S. Light (Circuit v. Fairbanks-Morse Co. Texas Power & Co. Appeals), (2d) Court of 693. 32 Fed. contingent liability
The distinction -a debt and between concisely Supreme stated of Court the United State City of v. the case of Walla Walla Walla Walla Water Com S., 1, Ct., 77, Ed., pany, L. 172 U. 19 S. 43 341. imposed city by
A burden on a law not such a burden as “indebtedness,” for comes under technical classification levying City of tax. must made (Civ. W., 498, 500; Menar, App.), v. of Dallas Miller et al. 27 S. 949; (Court Appeals Ky.), W., Mayor, Sanders v. of of 183 S. Pac., 106; Territory (Sup. Okla.), Martin v. of 48 Ct. Smartt County (Sup. Oka.), Pac., v. of Board Commissioners Ct. of 169
17 Pac., Okla.), Anderson, Sheriff, 1101; (Sup. 273 v. Board Ct. Bentley, Mayor, 222; McCormick, County Attorney, al. v. et 1197; Pac., (Calif. Kansas), v. (Sup. Wilber 157 Lewis Ct. 1128; (Sup. Ct.), Pac., Chapman Sup. Ct. Wash 33 Ranch v. 407, 52; Reports, ington), Pac., 253, A., 48 36 L. R. 58 Am. St. 453; Pac., 477; Corpus Ore., County, 21 v. 17 Grant Lake 4073; Juris, p. 1138, City v. 44, of Texarkana vol. sec. W., (Ct. App.); Telephone Company, of Civ. 106 915 S. Company Company v. & Fort Latex Oil Gas Worth Gas (Ct. 710; W., 705, App.), City of Civ. Pass v. 299 S. Aransas Keeling (Texas), 820; Keyes, W., 818, People by Attor 247 S. ney General, al., Pac., 583. ex rel. et al. v. Lee et 243 Setters Allred, Gеneral, Attorney Gaines,
James V. and Scott As- Attorney General, respondent. sistant municipal required Since the levy issuance collection taxes to provide the interest thereon and to sinking maturity, fund sufficient to redeem them at it neces sarily bonding capacity follows municipality of a must taxing be co-extensive power. purpose with its of the' protect citizenship from exor Mulkey bitant City taxation and debt. excessive v. of Kauf man, W., 620; City 286 S. Savings v. Belton Harris Trust & Bank, W., 914, 164; W., City S. 283 S. of Rockdale v. Cureton, 136, Texas, W., 852; Meyers Walker, 229 S. W., 499; W., S. 266 S. Moody, Athens v. W., 514; M., City Whitesboro, K. & T. v. W., 287 S. *4 requirement The provision constitutional by be made levy the and collection of an annual tax sufficient the per interest and at least two debtedness, principal cent of the of the in may and the total amount of tax rate that be levied limited, operate upon all of which as a limitation the amount may by of the indebtednеss that be municipality incurred only Texas. In our requirement Constitution there is not that payment levying shall made for of a tax for the principal indebtedness,
of the of interest but the amount of the tax which be levied is also limited. Corp. (5th 212; Ed.), Dillon Mun. sec. Citizens State Bank v. 450; Texas, Terrell, 78 Columbus v. Woonsocket Inst. for Sav ings, 165; Fed., Millsap Terrell, Fed., 193; 114 v. 60 Terrell v. Dessaint, 770; Texas, County, S., 71 v. Wade Travis 174 U. 499; Howard, S., 126, Fed., 487; Francis v. 13 U. 54 Nolan State, Texas, 182; County County v. 83 Mitchell City v. Na Bank, Texas, 361; City Hempstead, tional 91 Peck v. of 27 84, W., App., 653. Texas 65 S. Civ.
18 defined,
The has term “debt” been well and the definition long upheld has been in a decisions state. line of Waco, Texas, 88, 322; City W., McNeal v. of 89 33 Howard S. Dessaint, Smith, Texas, 8, W., 16; City v. 91 38 S. of Terrell v. Texas, 593; Co., 770, W., Mfg. City 71 127 9 of Cleburne v. S. W., obligation imposed 1073; pecuniary means S. “debt” contract, by contract, except such as is date within at the of contemplation parties, the lawful and of to be reasonable year, out satisfiеd of the' current for the or out revenues corporation. some fund then within the of the control improvements, to be Contracts for local the cost of which is wholly property part by borne form benefited no meaning municipality indebtedness of the within provisions. However, improvement where bonds wholly payable are not derived made out fund property benefited, assessment on but from faith they pledged payment, be- and credit their personal obligation city. come a Bank German National 292, W., 330; Covington, Ky., v. v. 175 Schuster Quill Oakdale, Ky., 760, 715; W., Council of 203 S. 292, Indianapolis, Ind., E., 788, A., L. 681. 23 N. R. Judge CRITZ delivered the the Commission Mr. Appeals, A. Section original proceeding This is an mandamus filed Texas, Worth, legally incorporated duly of Ft. under Texas, operating virtue of the laws the state of 5,000 population as a home rule with a of more than inhabitants, certain officers of said general attorney compel approval of certain of this state to “special improvement issued certificates” chapter 43, page of Ft. Worth under Legislature, Laws, Session, 4th Called 41st General general attorney approve The has such bonds declined attempting the issuance and contends that the act to authorize of same is for several reasons. We unconstitutional and void only necessary deem one of such reasons. discuss attorney question that the act in contends our contravention of section 56 of article 3 of State Constitu- regulate of a tion in same seeks affairs *5 incorporated city by change a local the charter of an seeks law. caption as follows: question the act reads
The having popula- providing Act “An that certain cities acquire special requirements may forth herein and own tion set assessment certificates issued in connection with street im- provements, pledge impound cities cer- such said improvement special tificates for the as basis issuance provisions subject Act; to the limitations and of this providing bonds; pro- for use funds from the of such sale viding charter, determining that such bonds shall not be reckoned in Statutory
Constitutional or bond limitations shall city contemplated not constitute indebtedness of the under cer- Constitution; provisions prescribing tain imposed Statutory duties issued; providing cities when such bonds are approval for the examination and of such bonds the Attor- registration ney General, Comptroller; their for declaring emergency.” an question
Section 1 the act in reads as follows: having 1. “Section Cities in the State Texas not less 106,000 than tants, according 110,000 inhabitants and not more than inhabi- 1920, to the may pro- United States Census of ceed in provisions hereof, with independently accordance of provision, any applicable without reference to other law or charter future, present which, however, or shall remain (alternative) ‘city,’ force altenative methods. The terms city,’ city,’ ‘such plurals thereof, ‘said and the shall mean provisions or cities included under the Act.” this Section 56 of Constitution, article 3 of our State so far as applicable to this case reads as follows: Legislature not, except “Sec. shall as otherwise provided Constitution, pass any law, this local or authorizing:
[**] “Regulating [*] the affairs of counties, cities, towns, wards, or school districts.
[**] “Incorporating [*] cities, towns or villages changing their charters.”
It will be appli- noted section of the act confined its absolutely according cation to cities which United States 106,000 Census of contain not less than and not more 110,000 than inhabitants. An examination of re- the census Worth, Tеxas, ferred to discloses that of Ft. is abso- lutely coming only city population state Texas that has a Furthermore,
within the act. of this absolutely impossible act so construed that it other city in the to ever be included state within the terms or under of the act. is therefore our *6 20 only, application
act is confined in its to the of Ft. Worth just clearly, just effectively, stipulation and as as if the population reference to with had been omitted and name “Ft. Worth” written therein in its stead. constitution in prohibits plain simple enactment and terms local regulating cities, changing special or law their affairs of or charters. cannot be denied that this law have reference does regulating special the affairs of If it is local or cities. a law it is therefore unconstitutional void. and presume contend,
We that no one name “Ft. would if the place stipula- had Worth” been inserted the law population con- tion with reference to the act be would stitutional. If law to we should hold this be constitutional application absolutely to one when describes and confines its holding we would in effect be the constitutional thing, idle a and can evaded a under discussion subterfuge. vain be question the act therefore hold that We and void. Lewis’ Stat. Construc- unconstitutional Sutherland Parker-Washington (2d Ed.), seq. p. notes. tion 397 et Kan., 722, Pac., 781, 782; City, Hibbard v. Kansas 73 85 Co. 109; Gray Taylor, State, Ohio, 574, E., 64 v. 227 65 N. v. Ed., 413; J., S., 51, Ct., 33 57 L. 36 C. 96. U. following Sutherland, quote supra: We from existing past upon “A or conditions or classification based things places, facts, persons, or exclude the which would coming condition, objects into situation or thereafter the same a or counties Thus classification cities void. existing upon population upon population shown or based by specified census is of character.” рersons a law not control “The number of affected does enough validity; question it is of its determine the or general nature, subject of a and is relates a law brought every person operation upon iswho and uniform in its provided by it. A and circumstances the relation within counties, may valid, upon population, be of cities based class though or county, if one or others come it embraces but attaining specified population.” into the class on county designates particular or “An Act which particular or description qualified name, so or intended, reasonably that no other can plainly county is characteristics, distinguishing expected have be country, held to or operation is limited whose special.” local having population applicable to of from counties act “An 35,190 35,200 special” citing Hixon was held evasive and — Barson, Ohio, 470, E., 1000; County v. N. Owen Com’rs. Shangler, Ind., 575, E., 65 N. *7 Parker-Washington City, supra,
In Co. v. Kansas construing Supreme Kansas, of in Court defining “special constitution of that state and in a act” and general of a “laws nature” said: provides
“Section of article 12 of the that Constitution Legislature conferring pass corporate ‘the shall no act powers’, general and of article ‘all section 17 2 that laws of a operation throughout nature shall have a uniform the state.’ question regarded special, in Whether act is to be as throughout operation depends whether its is uniform the state upon population whether affords a fair for the basis classifica- relates, tion of cities with reference to the matters to it which accomplishes and whether the result it is in fact a real classifi- upon basis, designation single city cation that and not a aof guise apply, to which alone it shall under thе of such classifica- tion.” n supra, State, provided In Hibbard v. which law Ohio for pensioning public city- teachers in the schools of certain ground in pro- that state was attacked that it violated a vision of the general providing Constitution Ohio that all of a laws application throughout
nature should have a uniform gen- question the state. The law was so drawn that it was form, only applied eral in but at the time it into went effect Toledo, to apply and could never after certain date any city. to other condemned court in the law follow- ing language: might argued apply any city
“It is that that came any thereafter; into language the class at time that might act cities; be so construed as to include might the boards in such cities the teachers take action they designated. after came into the class But we do not so language contrary plain cоnstrue this act. It is to the itself, provides act which that such shall taken action within goes language a certain time after the act into effect. The of' the act itself and its title seem to indicate that it was intended Legislature apply only it should to the only apply any city Toledo. This act did not in the taking effect, passage state but Toledo at the time of its apply any city. could but it never in the future to other The. subject-matter general nature, act one of people all the of the state are interested. It comes within language spirit the con- both the and the of this stitution.” Gray Taylor, supra, Supreme the United Court of phrase
States defined a local “The ‘local law’ means law as: primarily, effect, form, only a law that if not in is directed specific spot.” J., 690, gives practically supra, to a C. same definition. course,
Of we do not mean tо hold that an act its nature and terms would be in contravention of the above provisions, merely time of its because at passage only city; in fact we hold to the con- affects one think, trary. however, that an is so drawn We act which plain explicit provisions apply one its it made to city only state, apply any contingency and can never in just repugnant pro- other to the constitutional though under the name visions discussion as *8 apply which the act does had written into the act been words, city first think that a can be instance. other we designated just by description effectively named. as as it can be form, in another we hold that a law
To state our views throughout application cer- has uniform the state to cities a class, legitimate classification, population, tain as to or other repugnant provision under discus- is not to the сonstitutional though class, only sion even there is one state of applies city, only one but when the law is so drawn that any possible apply and can never but this one void, event, and such a law the law is unconstitutional because Cooley’s Con- is not based on classification but on isolation. Limitations, Notes, 1, pp. 262-3. 8th Ed. vol. stitutional stated, act for the reasons Since the is unconstitutional authority for the bonds there is no lawful the issuance of attorney which the of Ft. here seeks to have Worth general approve. therefore The mandamus should be refused and we so recommend. Appeals adopted, opinion
The Commission of mandamus refused.
M.C. Chief Justice. Gureton, REHEARING. MOTION FOR ON original (2d) 470, opinion, by As shown our S. W. original proceeding Ft. mandamus filed is an Worth, incorporated duly legally under and vir- a state, popula- with a tue and laws of this Constitution 5,000, operating under a charter tion of more than Texas, general attorney home rule compel sought petition mandamus to originally As filed the general approve “special improvement attorney certain certificates,” under the issued Session, Laws, 41st 43, 82, chapter page 4th Called General approve attorney declined to Legislature, 1930. The un- bonds, contending mentioned was the act above particulars. and void several original contentions of sustained the In our we attorney general act was unconsti- effect that the above 56 of in contravention of section tutional and void because Constitution, original act in that article 3 of our sought said State regulate city by a local This affairs of a law. holding status, pass in its then we did settled the case attorney objections on general. made the other constitutional original opinion adopted by herein After was Su judgment preme Court, therein recommended and after entered, filing prior motion for was rehearing, to the the instant Texas, Legislature 42nd convened in its 882, Regular Session, passed B. law which is H. No. a new 1931, (Sp. Laws, c. March which became effective 74). substantially identical the new law are “special old far as the issuance of with those of the law so improvement are concerned.” The new bonds or certificates however, law, applicable in the state of made to “Cities Texas, having according 100,000 population of more than inhabitants preceding
to the last United census.” States population Ft. has of more is admitted that Worth *9 100,000 by census. than shown the 1930 the From the statement we have made it is evident subject objection that a local or new law to the is special 3 of our of section of article State law violation Constitution, law. as was thе old following validating pro- contains the
Also the new law vision : proceedings by heretofore had 9. All
“SECTION acting 43, passed by Chapter the Fourth under the Legislature, hereby ex- Forty-first are Called Seession of the by pressly passed All ordinances and resolutions validated. governing accepting of said cities reference boards assuming permitted prescribed powers the duties law, pledging and resolutions and ordinances under said and all thereunder, special impounding certificates author- assessment izing assuming improvement the issuance of bonds and statutory imposed law, duties under said and all actions executing special improvement of said officials bonds performing law, thereunder and in all other acts under said legalized hereby and validated.” purpose For the of this we shall assume validating provision above has effect validate bonds law, issued under the old if such bonds would be valid had they been issued under the law. new passage law,
After attorney of the new again approve question here, refused to the bonds in contend- ing that the new law is unconstitutional and void because in contravention of sections and 7 of article XI of our State objection originally Constitution. This same was made attorney general approval sought law, while was under the old passed but was not us for the reason the matter pass we did on settled the cause as it then stood. procedure. The matter to be first considered one of
Supreme granted permission Court petition to file for man- seeking damus under the old law. The now relief under by way rehearing. Ordinarily new law aof motion for under such circumstances the commission would be inclined petition per- the view that a new for mandamus and a new required; mission to file should bе but in as much as same objections to the new law were while involved application pending law, was under the old and in as much sought sought as the same relief is under new law that was law, proceed validity under the old we shall determine of the new law. stated, attorney general
As approve above refuses to question, law, under the new and contends that law, law the new is unconstitutional and void as the old was because in violation of sections of article XI of our State Constitution. These sections read as follows: having (5000)
“Sec. Cities more than five thousand may, majority qualified inhabitants vote of the voters of city, at purpose, adopt said an election held for that or amend charters, subject prescribed their to such limitations as Legislature, providing that no charter or ordi- passed any provision nance under said charter shall contain Stаte, gen- inconsistent with the Constitution or of the *10 Legislature State; eral laws enacted of this cities said may levy, may and as assess collect such taxes be authorized charters; any purpose law for or their but no tax shall any year, ever be lawful for one which shall exceed two per property city, one-half cent of the taxable of no such by any city, debt shall ever be time created unless at same annually be made to assess and collect sufficient pay creating sinking to sum fund interest thereon and per thereon; further, providing of at least two cent city altered, repealed no charter shall or be amended oftener every years.” than two bordering
“Sec. 7. All counties and on the of cities coast upon hereby the Gulf of Mexico are authorized vote two of taxpayers (to may thirds therein be ascertained as be provided by law) levy to and collect for such tax construction walls, breakwaters, may sanitary purposes, of sea or be by law, may authorized create a debt for such works any purpose issue bonds in evidence thereof. But debt no for any county shall ever any be in incurred manner or provision made, creating same, unless at the time of levying collecting a sufficient the interest tax provide fund; per sinking thereon and at least two cent as a right and the way condemnation for the erection fully provided such works shall be for.” reading investigation A of the entire act under discloses following : (a) By provisions of section when it desires improve way part its in streets such a that a of the costs paid by shall be property, the owners of and in such benefited way agreements that assessment certificate or mechanic lien given required, right acquire authorized such given certificates and mechanic liens. The is then right impound such certificates and liens the hands of the trustee, upon or a impounded treasurer and based such city may “special improvement certificates or liens the issue exceeding bonds or per certificates” in an amount not cent aggregate impounded", amount the certificates or liens “special improvement bonds or certificates” to mature serially years or otherwise within fifteen from their date. necessary This section contains other to mention here. (b) By act, section 3
given right may lawfully use funds purpose acquiring be devoted to the the certificates and question, provided proceeds liens and it is from the improvement sale used to reim- purchasing burse the for the funds used the certificates *11 liens, proceeds the city use the and the is authorized to acquiring and liens in the the certificates sale of such bonds first instance. stipulated
(c) provisions it By of section 4 of the act provisions improvement that bonds issued under charter, determining constitu- act shall never be reckoned tional, imposed upon statutory such restrict- or limitations ing pro- power any purpose. It is also for its to issue bonds shall not the issuance of such bonds vided in this section incurring creating any indebtedness as constitute the or XI the Constitu- contemplated 5 and 7 of article sections provisions not other tion of Texas. section contains This necessary here. to mention
(d) By certain duties of section 5 of act expedient city. copy in imposed upon deem it to We (a) (b) full section. These subdivis- subdivisions of such ions read as follows: hand,
“(a) on realized In event there not be funds shall and interest from the thereon, assessment certificates сollection said pay principal interest of said to sufficient and/or them, bonds, any special improvement and when or improvement principal interest of said and/or duty accrues, of such matures and it shall then be impounded deposit pledged sufficient or fund an amount said deficit, any good deposit out to be made to make money said lawfully may be which then under control of the purpose; for said used at time eventuality have “(b) not in such event such does purpose, money hand under control available for said or its duty the time of the occur- be the of such at it shall then obtaining money rence of the deficit to make good be lawful for the to make the deficit. It shall be moneys which to the extent of reimbursed compelled of this under the have advance may been revenues from be made out of the section. Reimbursement certificates, provided pledged impounded or assessment and until ever made unless reimbursement shall be no moneys pledged impounded fund sufficient are on hand maturing principal months’ and interest the next twelve on said bonds.” way provides manner in (e) 6 of act Section signed reg- coupons shall the bonds and interest by the various officers.
istered approval the bonds provides for the (f) Section comptroller. general, registration by attorney and their germane of the act relates to matters not The balance portion opinion. reading especially think a careful act and We above *12 5, quoted, (a) (b) will dis- subdivisions and of section above provis- close that it in direct conflict with the constitutional against city quoted, ions in that it debt the above creates a without, may years the time of the run for fifteen at thereof, making provision creation ally to assess and collect annu- pay maturity. at sufficient sum taxes such bonds (a), supra, By plain simple provisions the of subdivision duty obligation city it is made the absolute of deposit pledged any may any in the fund deficit that exist year any payment future when the bonds or interest and, by plain simple provisions mature: subdivision (b), supra, duty obligation it is made the absolute money in the event does not have the on hand to meet deficit, obtaining provisions money. to make for Cer- tainly city the effect of these is to have the abso- guarantee lutely payment bonds, of these and make them a general against city. statutory provisions debt above quoted just bonds, city pay are as effective to bind the these impounded insufficient, in the event fund is or for fails, guaranty directly reason if as were written into the statute and into the think bonds. We the effect is therefore to meaning create а debt within the of sections 5 City and 7 of article XI our State Constitution. McNeal v. Waco, 83, 322, 324; Texas, W., City of Dessaint, 89 33 v. of Terrell Texas, 770, W.,
71 9 S. Waco, Court, supra, Supreme speaking In McNeal v. our through Judge Denman, defined “debt” as used in the above to mean: ‘debt,’
“We conclude that word as used constitu quoted, obligation any pecuniary tional above means imposed by contract, except were, such as at the date of the contract, contemplation within the lawful and reasonable parties, to be satisfied out of the current revenues for the year, or out of some fund then the immediate control of within corporation. Corpus Woessner, Texas, 465; Christi v. Dessaint, 770, 593; Texas, W., Appeal Terrell v. 9 S. Erie, St., 398; City City Quincy, 91 Pa. Prince v. Ill., 138.” Dessaint, supra,
In the of Terrell facts as shown follows: brought by “This suit appellee was prom- as endorsee of a issory following note of copy: ‘$1,000. which the is a Two years promises after date of Terrell Layen H. P. received, order one thousand dollars for value interest with per at 7 given cent from payment date.- This note is for supplies, material for payable water-works and is out of the per tax annually pur- one cent collected for !/4 poses.’ 13, May signed It is mayor dated and is secretary pro city. tern of the At the time of the execution of the note the had leased or sold its water-works to the Texas Company Gas and Water and the latter had been possession property of the considerable time. The man- agement being company agreed of the satisfactory, it was rescinded, its contract with the should be and that the possession management should resume the of the part rescission, agreed works. As a of the contract of purchase company certain materials on hand for the *13 works, extension of the therefor the sum of two and. thousand dollars. For this sum the issued warrants or dollars, drafts its treasurer for about five hundred and exe- being promissory cuted controversy— two notes —one dollars, payable and the other for five hundred twelve months from date.” proceeds
The court then to define the term “debt” as used Constitution, powers in the regard and limitations of a following language:
thereto in the promissory upon “But it is contended that note sued debt, meaning provisions in this case is not a within the of the power of the Constitution limit which of cities to create indebtedness, regulate and of the the manner in statutes which which such debts shall be evidenced and secured. To state appellee’s position specifically more is claimed that —it expenses, being chargeable debt in case current this was upon expense fund, the current it does not come within the purview provisions of the Constitution and the statutes previously to which we have referred. It is held case (Corpus Woesnner), cited Christi that ‘the issue of warrants expenses on current of a which do not exceed the current revenue derived from taxation’ is not the creation of a debt prohibited by not doubt the Constitution. We do correct- ruling. freely of that concede that debts for the ordi- ness We nary running expenses city, payable year of a within a out of incoming year, revenues of the and with other indebted- general clearly yearly pur- ness not in excess of the income for poses, city. a can a But think that debt for be created we expenses compliance with current in order to be valid without a requirements statutory to which we have the constitutional and referred, concurrently run with current resources for must purposes, such that such a debt can not be created without compliance, at make such a time as would matures charge city. upon it a the future resources of the easy expenses accurately be municipality. to define what are the current may ask,
But if can we create debt of its one thousand five hundred dollars for materials to extend waterworks, payable, it and two and make with interest one years date, why may after it for a not create an indebtedness larger improvement, public power sum for which it has construct, longer payable period? at a It is make us, clear to permitted, if were of our this statutes, power regulate Constitution and which limit municipal indebtedness, the manner of the creation of would be entirely nugatory.
“It upon was shown trial had exhausted powers creating chargeable its upon debts to be funds raised by special given. taxation when note sued on was It was - time, since, also shown that at the and ever the current ex- penses proper exceeded its resources for purposes. facts, We state these not because we think their necessary cause, statement to a decision this but because they serve to illustrate doctrine we assert. If indebted- an ness manner, permitted this character is to be to be created avail what our fundamental statutory laws, protect which are intended to our cities bankrupt treasury evils ?” *14 Certainly sought debts, the here to issued be obligations pecuniary city of the within the above definitions. by city against
It is contended the that no debt is created city obligation part city the because the the of the to make good any contingent only deficit the is In bond fund one. argued only city per this connection it is the that since 90 bonds, paving of cent the certificates and liens are issued having good any very the event of the make deficit is remote. This contention must be overruled. The effect the obligate provide necessary law is to all funds obligation bonds, unqualified and this is absolute and when money the bonds are delivered and the received therefor. It the settled law that a debt created state city, compliance in order to be valid without with the constitu-
30 requirements referred,
tional run con- to which we have must currently City Terrell v. Des- with the current revenues. saint, Texas, 770, W., 71 9 593. S. that under the rule announced in Dallas contends Company City Dallas, App.,
Electric v. 58 Texas Civ. W., obligation part (Writ Refused), on the good any may to make deficit in the fund occur against created city instant law does not create a debt issued, only at the to a time the bonds are but amounts contraсt for a if there future indebtedness to be incurred during subsequent year. should exist deficit in the fund some We cannot sustain this contention. City Dallas, supra, v. the Court of Dallas Electric Co. Appeals City it and the
Civil had before a contract between Company, by Company Electric agreed Electric the city, of which the terms given years, to furnish the for the term of three exceeding lights number of at a annual rental not stated appropriate for amount collect and was authorized.to contract, payment purposes year, such each under which pro only performance was to be of the services made on the Judge through Appeals, speaking vided for. The Court Civil ground that Rainey, upheld validity on the of this contract meaning it the constitutional did not create a debt within the consideration, merely a contract but was here under opinion in its then cites to create a future support This indebtedness. Supreme of the United States Court Co., City Water v. Walla Walla case of of Walla Walla 85; Ed., S., 19, It must be Sup. Rep., L. 172 U. Ct. is some in the above case admitted that drawn distinction may, close, we have as it be this what technical and rather but calling question. no it in intention of by the rule Clearly cannot be sustained the instant law supra. Dallas, The debt created Electric Dallas Co. bonds, by the created evidenced and the instant law is complete instant at the undoubtedly existence it comes into make is to of the law and sold. The effect bonds are issued binding obligation absolute and the bonds an them. behind put credit of the may pos the bonds of which out true that a fund is created fund will admitted sibly paid, be even bonds, of the statute the effect probably pay but fund, pay in the event absolutely city to bind *15 when city the full consideration reason, receives The fails. city is obligation made, and debt and the is contract city complete. nothing in then There to be received received, paid the future as in the Dallas to be for when case, supra. Electric a case it cannot said Co. such obligation merely debt in the bonds evidence an to create a created, already nothing future. is to be done The debt is funds, provide pay in the future it. but seems to be contended which, substance, stipulated section 4 of the act in creating incurring bonds of an shall not constitute the or against meaning indebtedness of sections within XI, Constitution, 5 and 7 of free article of our render the act from the it criticism that is in violation of such constitutional provisions. overrule contention. It is not within the We power Legislature legal effect, which, to enact law discussion, violates the under and then doing writing avoid the еffect so into the law a state which, effect, legal ment that the law does not it do that does words, do. actually In other the law does bonds a make city, debt statement in the law which legal antagonistic absolutely result force. its can have no consideration, The contends that the here statute under sought approved and the bonds here to be are valid and con- Corpus City stitutional the rule under announced Christi Woessner, Texas, give v. think that can We case no Corpus comfort to the relator here. In the case the Christi payment warrants were issued in of debts of legal incurred, were payable and valid when and which debts were year, out of the revenues of the for the current but city wrongfully part year’s diverted of its current funds obligations unpaid. course, and left lawful these this court Of debt, compelled held that could be lawful such created, subsequent yеars, when out of the revenues of could make a valid contract so. do contends that under the rule announced Sowell Griffith, W., 521, (Texas App.); City S. Com. Frishmuth, W., 190, (Texas App.),
Laredo v. Civ. these approved. bonds should be think neither these cases We authority to these sustain this law. Griffith, supra,
In Sowell v. is shown that contract was between the Board of Water Commissioners of Cleburne, Texas, hand, on the one and A. M. & Lockett Com- pany, private corporation, other. The action was to performance restrain the execution a contract between parties. In its final form the contract an amounted to *16 agreement parties by Lockett the terms of which between the certain Company to the Board of Commissioners & sold Water agreed pay for agreed machinery price. to at an The board installments, matured subse- machinery some of which mеet the year. levied to quent No tax was to the current years. falling subsequent The board for installments due security the receipts plant for pledged the water as the net the machin- Company retained a lien on Lockett & debt. Also mortgage. registered the ery Under chattel which was as management plant was city of the water charter of the the the and both placed in the Board Water Commissioners pledging provided city for the statute and the charter of the for debts receipts the works of the and revenues of water the contract extensions. Also incurred or betterments and except lien question attempt city as to the made no to bind receipts purchased machinery the net water on the through Commission, speaking of the works. This section Judge contract, theory purely Bishop, upheld on the the above city obligation part of the on the it created no or debt taxa- paid derived from out of the revenues which had tion, pledged only obligation apply fund derived but an clearly The of the works. from revenues water could not create a debt holds that contract duty apply the net income of the water other than the payment to the thereof. works very condition from
In the case at bar have a different we Griffith, under con- because here the statute Sowell guarantor of the instant the absolute sideration makes attempted to the contract v. Griffith bonds. Had Sowell owing city beyond year the current sum bind the receipts beyond net of the water the amount the the contract pay, invalid with- contract would have been works would such holding provided by levy out a tax Constitution. approval. and meets our case was correct Sowell Frishmuth, authority supra, is no Lаredo v. City of Laredo issued In that case the sustain these bonds. people. The by bonds were $75,000 in vote per valuation levy cent on the of one $100 a tax secured setting apart money city, property in the of taxable arising owned of certain lots from the sale house, arising market from the hall and and revenues rents city. to be collected and forfeitures fines in value to sev- securities amounted further shown that these actu- did the bonds and times the amount of eral ally Court derive such therefrom. case the amount contract, Appeals upheld liability Civil and the having Certainly thereon. bound itself no further pledged fund, apply legally than such funds was liable to to, having purposes apply to the it had them contracted payment failed to so do was for default in of the bonds. liable together *17 levied, Also in the Laredo a tax with case which was pledgеd funds, pay more to was than sufficient bonds. Finally levy we come consider there is a tax whether pay meaning pro these bonds within the of the constitutional study vision under consideration. After a careful of the act investigation, itself and the constitutional under we tax, have reached the conclusion that there is no within the meaning of the constitutional under consideration pay place pro levied to these bonds. the first the act itself impounding paving vides for both lien certificates and mechanic agreements. words, In other the bonds issued under the statute may, according express provisions, entirely to its be based agreements represent, mechanic lien which not sense do property merely private of the tax word but lien contract obligation. However, only provided impounding if paving the law only by paving certificates liens secured аssessments strictly laws, paving created under the an assessment against abutting owner, costs an property which assessment word, a tax in a certain sense of the would not be a tax within meaning sections and 7 of article XI our State Con- stitution, levy paving pay because the tax made to assess- nature, very law, ment only its matter of a tax charge against particular piece abutting lien and each prop- erty against pay par- owner its the costs assessed piece property. p. 1131, ticular J., 44 C. sec. 4064. quote
We rule as announced C. J.: “Except jurisdictions, municipality some the fact passed beyond prevent has its debt limit does from con- tracting payable expressly out special a debt of a fund. applicable payable rule is to a out debt of a fund derived from light plant the income and of a other revenue or waterwоrks or utility public unless, purchased municipality, constructed revenue, property
in addition to the itself is mort- gaged payment municipality secure A indebtedness. increasing may, meaning without its indebtedness within the limitations, payable an contract indebtedness proceeds assessment, provided, out of the of a at contract, part making liability on the time of the no collected, pay other than to over the assessment when created. improvement is made an for an “Where assessment received, question municipality for benefits assess- liability for the amount of such whether the depends limitation ment a constitutional debt comes within taxation, upon paid by whether the assessment is to including personal property, or whether the assess- taxation of abutting only upon property owned real ment is made being applicable in the former municipality, the limitation case, in the latter.” but not things in all refused. that the mandamus be
We recommend L. Pearson & Co. et al. C. Clark W. et al. v. W. *18 1931. No. 5722. Decided April 15, Rehearing July 22, (39 27.) 2dW., Series,