35 S.W. 294 | Tex. App. | 1896
Lead Opinion
Appellee held a valid judgment against the city, rendered upon a tort, and brought this action of mandamus to require the city and its common council to levy a tax sufficient to pay the judgment and costs, together with the costs of this proceeding, and to require the assessor and collector to do what was necessary to carry into effect such levy; or, if the court should determine that the city could *582 not levy a greater tax than that then levied for city purposes, then that the officers of the city be commanded and compelled to provide, if necessary, by ordinance, a special fund out of the tax so levied sufficient to pay this indebtedness; and if such relief could for any reason not be granted, then that the mayor and council be compelled to direct and authorize the issuance of a warrant by the city secretary, the same to be paid out of the funds on hand, or that may come into the hands of the city treasurer, as taxes levied and collected for city purposes, compelling the issuance of such warrant by such secretary in due form, with proper number, and the payment thereof according to its terms and number by the treasurer to the clerk of the court to be applied to plaintiff's judgment.
The conclusions of the judge (there is no statement of facts) show that it was proved that the expenses of the city, which was economically governed, amounted for the year then current and for previous years to $9,693.18 for maintaining the city government, $5,060 for maintaining a paid fire department, and $6,610.55 for maintaining waterworks and electric light, a total of $21,363.73. The income from all sources amounted to $20,668.60, which included revenue derived from the waterworks, $6,668.60. The city existed under the general law relating to towns and cities, and in deriving said income, the city had levied tax for general purposes of twenty-five cents on the hundred dollars, the maximum allowed. The above figures do not include the revenue derived from the levy of 25 cents on the $100 for improvements, nor the revenue levied for school purposes, nor the levy of 15 cents on the $100 for streets, nor the revenue derived from the railroad bond tax.
It is clear from the statement above that there was no room for either the levy of a tax, or the issuance of a warrant on the general fund for the liquidation of the species of claim which plaintiff had, if the expenses of maintaining a fire department, waterworks or system of electric lights are to be regarded as expenses of the city. If they were, they were entitled to be paid out of the fund available for general purposes, and the city had the right and it was its duty to so pay them, in preference to a debt not a part of the current expense of the city. If they were not, which was the view taken by the trial judge, then the levy of 25 cents on the $100 was materially greater than the necessities of the city government, and a levy sufficient to pay this judgment could properly have been made within the twenty-five cents, and mandamus might have issued to compel a provision for this debt in the levy.
The law permits the city to establish and maintain systems of waterworks, and lights, and a fire department. The power to institute and maintain these systems or departments, carries with it the obligation to meet the expenses thereof. The power to determine the necessity or desirability of such systems or branches of service is vested by law in the city council, and they are not restrained in the exercise of such discretion, except indirectly by the limit upon their power to raise revenue. When this body has seen fit to create those departments and operate them, *583
there can be no other view than that the expense of carrying them on becomes part of the current expenses of the city, entitled to be discharged out of the current revenues. We can see no difference in this respect between such expense and that incurred for police or sanitary purposes. Certainly the courts have no power to review the acts of a city council in a matter committed by law to their judgment and discretion. And when the city sees fit, through its council, to adopt such works or service, the carrying them on becomes one of the governmental functions of the city; and we have no power to question the city's right to these benefits because we may consider that they could be dispensed with, and an efficient city government conducted without them. East St. Louis v. U.S.,
The grant of the writ to compel a levy was under the facts of this case erroneous. The city needed all of the funds raised by the maximum rate of levy and its other available funds for the expenses of its maintenance. The levy commanded would have required the city to go beyond the constitutional limit, or would have denied it the means of applying that much of its income to the paramount purpose of paying its current expenses.
Appellant also refers to the power of the council "to provide by ordinance special funds for special purposes" (Revised Statutes, article 372), and in his petition he prayed that appellant be required to provide by ordinance, if necessary, a special fund out of the tax levied for city purposes sufficient to pay appellant's claim. This power is manifestly a discretionary mater with the council. No duty is devolved on them in this respect, and its exercise cannot be controlled by mandamus.
He also insists that he was entitled under the allegations and proof to an order requiring the issuance of a warrant in the manner stated in his prayer. We agree with the court that plaintiff was not entitled to this form of relief. A warrant issued to him payable out of the general fund according to its number, in the condition of such fund with reference to the charges thereon as shown by the testimony, would, if paid, necessarily have diverted that much of the fund from its proper application to current expenses, and left that much of the current expenses unpaid.
The case of Corpus Christi v. Woessner,
The judgment will be reversed and here rendered for the appellant, without prejudice to any future proceedings in this behalf.
Reversed and rendered.
Addendum
The argument that, unless a mandamus be granted, in some form requiring provision for or payment of this claim, it might never be satisfied, is not a consideration that would justify the diversion of a city's income from the purpose to which the law intends it to be primarily applied. If this were the rule, it is plain to see how the city would or might continually be disabled from conducting its government. Suppose the liability of the city for cases growing out of tort amounted to large sums, which it is not unreasonable to suppose, a rule which requires the city to provide for the same out of funds that are necessary to defray its proper current expenses, whether such provision is enforced out of one year's funds or extended over many years, would practically deny the city the right to live.
It is our understanding of the law in these cases that the income is a primary fund for the payment of expenses of government; in other words, the expenses are a charge on the income in preference to other species of debt. And it must follow that when, as is shown to be the case here, the income is barely sufficient to meet current expenses, under economical administration, and such appears to be the settled status of the city's finances with the highest rate of tax allowed for general purposes and other sources of income, the court would not observe the law if they compelled payment of other liabilities out of such income. The contention that, unless such provision is made, plaintiff is in the position of having a right without a remedy, is of no more force than if he held a judgment against a person, whose property must go to pay prior claims, and from whom he has no present expectation of obtaining payment. This, in a like sense, would be a right without a remedy. There can exist on principle on distinction in this respect between claims founded on tort and on contract.
No one would question that the city is liable for the claim, and that the council ought to devise ways and means for its payment. But this affords no reason why a court should undertake to govern the city by controlling or determining what it may have and may not have of the benefits it is permitted to enjoy, — a discretionary matter which the law has committed exclusively to the common council.
The constitutional provisions for collecting twenty-five cents on the $100 valuation for city purposes, "and a like amount for the erection of streets, waterworks and other permanent improvements." does not contemplate that the expense of operating waterworks after erection should *585 be provided for by special fund. The provision is for creating the improvements.
The motion for rehearing is overruled.
Overruled.
Application for writ of error dismissed.
