154 S.W. 345 | Tex. App. | 1913
Lead Opinion
The city of New Braunfels, having a population of less than 10,000, incorporated under the general laws of the state. When it incorporated in that manner, the provisions of the Revised Statutes prescribing the powers and duties of such municipal corporations became its charter; and, as the provisions of the Revised Statutes referred to do not confer upon such cities, towns, or villages the power and authority to condemn property by the method pursued in this case, the power to do so did not exist, if the special law under which this proceeding was instituted is unconstitutional and void. Section 4 of article 11 of the Constitution of this state prescribes that “cities and towns having a population of 10,000 inhabitants or less, may be chartered alone by general law,” and section 5 of the same article provides that “cities having a population of more than 10,000 inhabitants may have their charters granted or amended by a special act of the Legislature.” Section 56 of article 3 deals with legislative limitations, and declares “the Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law * * * regulating the affairs of counties, cities and towns, wards or school districts * * * incorporating cities, towns or villages or changing their charters. * * * And in all other cases where a general law can be made applicable, no local or special law shall be enacted.” Counsel for appellants contend that the statute under which this proceeding was instituted is a special law, and that it is in conflict with the foregoing constitutional provisions. Counsel for appellee contend that, while it was enacted and has been designated by them as a special law, it is not so in fact; but, on the contrary, is a general law. In Hall v. Bell County, 138 S. W. 178, this court had occasion to make a thorough investigation of the authorities upon the question of what constitutes a special or local law, and we refer to the opinion in that case for our views upon the subject. In that case the Supreme Court granted a writ of error, and we have held up the decision of this case to wait until that case was finally decided. A few days ago the Supreme Court decided that case, and sustained the opinion of this court in holding that the statute there under consideration was a local or special law, and repugnant to that provision of the Constitution which prohibits the Legislature from passing a local or special law regulating the affairs of counties, cities, etc. Upon the authority of that case, and many others to the same effect, we hold that the statute here involved is a local or special law. And we also hold that it is repugnant to our Constitution, and must therefore be declared void. There are some authorities which hold that the provision of the Constitution which inhibits the Legislature from passing a local or special law in all cases where a general law can be made applicable is directory and not mandatory, and that the Legislature must be the sole judge in that respect; but, we do not find it necessary to pass upon that question.
Counsel for appellee further contend that the provision of the Constitution which requires cities and towns having a population of 10,000 inhabitants or less to be chartered by a general law does not deny to the Legislature the power to amend such charters by local or special law. Counsel for appellant, on the other hand, contend that when that provision is considered in connection with the section immediately following, which authorizes the Legislature to grant or amend charters of cities having a population of more than 10,000 inhabitants, the former should be construed as prohibiting the Legislature from amending the charters of cities or towns having a population of less than 10,000 by local or special laws. There is force in that contention, but we prefer to rest our decision upon the proposition that the statute in question violates section 56 of article 3, which prohibits the Legislature from incorporating cities, towns, or villages, or changing their charters by local or special law, except as otherwise provided in the Constitution. The only provision in the Constitution which authorizes the Legislature to incorporate or change the charters of cities and towns by
Appellants have assigned error‘upon the rulings of the court below overruling their contention, and sustaining the 'vadidity of the statute under consideration, and we sustain those assignments and reverse the ease •and render judgment for appellants.
Reversed and rendered.
Lead Opinion
On February 15, 1911 (Acts 32d Leg. c.
The city of New Braunfels, having a population of less than 10,000, incorporated under the general laws of the state. When it incorporated in that manner, the provisions of the Revised Statutes prescribing the powers and duties of such municipal corporations became its charter; and, as the provisions of the Revised Statutes referred to do not confer upon such cities, towns, or villages the power and authority to condemn property by the method pursued in this case, the power to do so did not exist, if the special law under which this proceeding was instituted is unconstitutional and void. Section 4 of article 11 of the Constitution of this state prescribes that "cities and towns having a population of 10,000 inhabitants or less, may be chartered alone by general law," and section 5 of the same article provides that "cities having a population of more than 10,000 inhabitants may have their charters granted or amended by a special act of the Legislature." Section 56 of article 3 deals with legislative limitations, and declares "the Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law * * * regulating the affairs of counties, cities and towns, wards or school districts * * * incorporating cities, towns or villages or changing their charters. * * * And in all other cases where a general law can be made applicable, no local or special law shall be enacted." Counsel for appellants contend that the statute under which this proceeding was instituted is a special law, and that it is in conflict with the foregoing constitutional provisions. Counsel for appellee contend that, while it was enacted and has been designated by them as a special law, it is not so in fact; but, on the contrary, is a general law. In Hall v. Bell County,
Counsel for appellee further contend that the provision of the Constitution which requires cities and towns having a population of 10,000 inhabitants or less to be chartered by a general law does not deny to the Legislature the power to amend such charters by local or special law. Counsel for appellant, on the other hand, contend that when that provision is considered in connection with the section immediately following, which authorizes the Legislature to grant or amend charters of cities having a population of more than 10,000 inhabitants, the former should be construed as prohibiting the Legislature from amending the charters of cities or towns having a population of less than 10,000 by local or special laws. There is force in that contention, but we prefer to rest our decision upon the proposition that the statute in question violates section 56 of article 3, which prohibits the Legislature from incorporating cities, towns, or villages, or changing their charters by local or special law, except as otherwise provided in the Constitution. The only provision in the Constitution which authorizes the Legislature to incorporate or change the charters of cities and towns by *347 local or special law is section 5 of article 11; and it is limited by its terms to such cities and towns as have a population of more than 10.000 inhabitants.
As before said, the charter of the city of New Braunfels is the provisions of the Revised Statutes prescribing the powers and duties of cities and towns; and, as that city had less than 10,000 inhabitants, the Constitution inhibited the Legislature from passing any local or special law which enlarged or restricted the powers of that municipality. We have not found it necessary to decide whether or not the statute here involved is one which regulates the affairs of the city of New Braunfels within the purview of the Constitution. There is some diversity of opinion as to what is the meaning of the word "regulate," and as to its application to a particular state of facts, some courts giving to the term "regulate" a somewhat restricted, and others giving to it a liberal, construction.
Appellants have assigned error upon the rulings of the court below overruling their contention, and sustaining the vadidity of the statute under consideration, and we sustain those assignments and reverse the case and render judgment for appellants.
Reversed and rendered.
The law referred to is incorporated in articles
Motion overruled.
Rehearing
On Motion for Rehearing.
The law referred to is incorporated in articles 1003, 1004, and 1005 of the Revised Statutes of 1911. That law authorizes incorporated cities and towns to condemn private property for the following, and no other, purposes: (1) In order to open, change, or widen streets, avenues, or alleys; (2) for the construction of water mains, or supply reservoirs or standpipes for waterworks or ■sewers; (3) for the purpose of establishing thereon hospitals or pesthouses; and (4) for the purpose of constructing or maintaining ■sewer plants or systems. The condemnation proceeding in this case was instituted for .and resulted in a judgment securing to the city of New Braunfels the right to back the water from its proposed dam over two strips ■of land belonging to appellant along the water line on each side of the Comal river. It is true that the city contended, and perhaps correctly, that it was necessary to thus flood appellant’s land in order to construct and maintain the proposed water and light plant for the city; but the statute now under consideration does not authorize the condemnation of any property for the purpose of establishing a light plant, and does not authorize condemnation of private property for use in connection with a water plant, except for the construction of water mains, supply reservoirs or standpipes. The city of New Braunfels was not seeking to condemn appellant’s property for use for either of those purposes; and therefore the provisions of the general statute relating to the subject of condemnation do not sustain the contention of appellee’s counsel.
Motion overruled.