Zachry v. City of San Antonio, 13031

• Decision Date: 05 September 1956
• Docket Number: No. 13031,13031
• Citation: 296 S.W.2d 299
• Parties: H. B. ZACHRY, Trustee, Appellant, v. CITY OF SAN ANTONIO, A Municipal Corporation, Appellee.
• Court: Texas Court of Appeals

Page 299

296 S.W.2d 299

H. B. ZACHRY, Trustee, Appellant, v. CITY OF SAN ANTONIO, A Municipal Corporation, Appellee.

No. 13031.

Court of Civil Appeals of Texas, San Antonio.

Sept. 5, 1956.

Rehearing Denied Oct. 31, 1956.

Further Rehearing Denied Nov. 28, 1956.

Johnson, Krog & Hite, Carl Wright Johnson, Bernard Ladon, San Antonio, for appellant.

Carlos C. Cadena, City Atty., San Antonio, for appellee.

POPE, Justice.

City of San Antonio sued H. B. Zachry, Trustee, to have a lease contract from the City to Zachry declared null and void. The trial court declared the contract void and Zachry has appealed.

The contract between the City and Zachry was a forty-year lease of the subsurface and certain entrances to Travis Park, a city park, by the terms of which Zachry agreed to construct and operate an off-street parking garage. Several troublesome questions are present: (1) Does the City possess the power, either by statute or its charter to maintain and operate off-street parking facilities? (2) If the City has the power to do so, does it have the further power to lease, for forty years, the property to an individual to build the parking facility and operate it free from all controls? (3) Is the City estopped to claim its lease contract with Zachry is void?

Under its charter, the City possesses the power to maintain and operate an off-street parking garage. San Antonio is a home rule city. It owns the fee simple title to Travis Park. City and Zachry on October 15, 1953, entered into a lease agreement by which City leased Zachry the sub-surface of the park for forty years, together with parts of the surface needed for ingress and egress to a garage. The contract was conditioned upon Zachry's furnishing proof of financial arrangements for the project and his submission of final plans and specifications which would meet the approval of the City. Those arrangements were made and the plans approved. Zachry, under the obligations of the lease, has expended almost $60,000, a portion of which consists of rentals paid to and accepted by the City.

In its ordinance making the lease, the City expressly abandoned those parts of Travis Park needed for the under-ground parking facility. In our opinion, this abandonment was within the City's charter powers. Art. 1, § 3, Par. 7, Charter, City of San Antonio, infra; Moore v. City of Beaumont, Tex.Civ.App., 195 S.W.2d 968, affirmed, City of Beaumont v. Moore, 146 Tex. 46, 202 S.W.2d 448; City of Lubbock v. Merriwether, Tex.Civ.App., 285 S.W.2d 261. Having first abandoned those parts of the park needed for the off-street parking entrances, there would be no inconsistent use.

The lease discloses that its primary and specific object is to provide off-street parking facilities, rather than the exercise of the City's general powers. To achieve that, the lease recites the lack of present parking facilities, the effect of that shortage upon the City's economy, that construction of an underground parking facility would be a valid public purpose and of value to the City, its citizens and the public; that the City had invited proposals for relieving the traffic congestion, and that Zachry, Trustee, proposed the construction of a sub-surface parking facility beneath Travis Park. The essence of this arrangement is not a mere lease, but additional parking facilities. The issue is not whether the City may lease property, but whether the City has power to provide those parking facilities.

Many states by statute have granted cities the power to establish off-street parking facilities. See McSorley v. Fitzgerald, 359 Pa. 264, 269, 59 A.2d 142; Note 8 A.L.R.2d 383. Texas has not done so. In Texas, however, as explained by the Supreme Court, a home rule city has full power of self-government and 'full authority to do anything the legislature could therefore have authorized them to do. The result is that now it is necessary to look to the acts of the legislature not for grants of power to such cities but only for limitations on their powers. Yellow Cab Transit Co. v. Tuck, Tex.Civ.App., 115 S.W.2d 455.' Forwood v. City of Taylor, 147 Tex. 161, 214 S.W.2d 282, 286, Arts. 1175, 1176, Vernon's Ann.Civ.Stats. Article 1017, Vernon's Ann.Civ.Stats., expressly grants power to sell and convey any land or interest in land owned, held or claimed as a public square, park or site for city hall.

City here recognizes this rule, but correctly reasons that the governing agency of the Home Rule City is not rendered omnipotent with any and all powers, unless and until those powers are found within the charter of the city. A city possesses powers not denied by statute or constitution so long as the city has incorporated those powers in its charter. Foster v. City of Waco, 113 Tex. 352, 255 S.W. 1104. Stated negatively, a city's failure to include in its charter a certain power, is a self-denial of the power. Zachry reasons that the City Charter of San Antonio grants the power to provide off-street parking facilities. If such power exists, it must be found within these provisions of the Charter:

'Article I, Section 3,

'Paragraph 1,-General Powers. The City may sue and be sued, plead and be impleaded in all courts, have a corporate seal, contract and be contracted with, ordain and establish such acts and regulations and ordinances not inconsistent with the Constitution and laws of this State and this Charter, as shall be needed for the government, interest, welfare, and good order of the City, and the interest, welfare, health, morals, comfort, safety and convenience of its inhabitants; the City may purchase, take, hold, acquire and convey, lease, mortgage and dispose of any property whatever within the City limits. * * *

'Paragraph 7.-Street Powers. The City of San Antonio shall have the power to lay out, establish, open, alter, widen, lower, extend, grade, abandon, discontinue, abolish, close, care for, pave, supervise, maintain and improve alleys, sidewalks, parks, squares, public places, and bridges; and regulate the use thereof and require the removal from streets, sidewalks, alleys and other public property or places, of all obstructions and encroachments of every nature or character thereon. * * *

'Paragraph 13.-Other Powers. The City shall have power to (1) Provide for, acquire, construct, regulate, protect and maintain public buildings, works, improvements, parks, gardens, and recreational facilities of any nature. * * *

'Paragraph 14.-Cumulative Powers. The enumeration of particular powers and the specification of the manner of exercising the same by this Charter shall never be deemed to be exclusive nor construed as a limitation upon the general powers herein granted or upon their exercise in any other lawful manner, and in addition to the powers enumerated herein or implied thereby, or appropriate to the exercise of such powers, it is intended that the City shall have and may exercise all powers it would be competent for this Charter specifically to enumerate.'

In City of Denton v. Denton Home Ice Co., 119 Tex. 193, 27 S.W.2d 119, 68 A.L.R. 866, the Commission of Appeals approved the authority of the City to manufacture ice under a statutory and charter grant of power no more specific nor broad than that of the San Antonio Charter. The San Antonio grant of power is broad and is intended to be. On the other hand, in Anderson v. City of San Antonio, 123 Tex. 163, 67 S.W.2d 1036, 1037, the Court refused the City's effort to impose a tax for advertising purposes, even though the charter granted power to pass ordinances 'necessary for the order and good government of the city, or the trade, commerce and health thereof.' We are unable to state a universal rule on how general is too general, but a charter may limit power as well as grant power. City of Corsicana v. Willmann, 147 Tex. 377, 216 S.W.2d 175; 2 McQuillan, 3rd Ed., § 10.25. Whether the charter is intended to grant or limit powers depends on the wording of the particular charter. 2 McQuillan, supra. In our opinion the charter, in granting power to 'Provide for, acquire, construct, regulate, protect and maintain public buildings, works, improvements * * * and recreational facilities of any nature' was adequate authority for the city to provide an underground parking facility. Amstater v. Andreas, Tax.Civ.App., 273 S.W.2d 95, 99, presented an analogous situation. The authority of the City of El Paso to issue bonds for off-street parking facilities was questioned. The El Paso charter granted power to issue bonds 'for permanent public improvements,' language similar to the general powers granted the City of San Antonio by Article 1, Sec. 3, Par. 13, of its Charter. After reviewing many of the cases, the Court concluded that the term 'permanent public improvements' included off-street parking facilities, though such facilities were not specifically named. See also, Miller v. City of Georgetown, 301 Ky. 241, 191 S.W.2d 403; State ex rel. Gordon v. Rhodes, 156 Ohio St. 81, 100 N.E.2d 225. Other precedents have approved the exercise of power to provide off-street parking on the basis of a city's power to protect the 'safety' of the public. See Charter, Art. 1 Sec. 3, Par. 1, supra. The Amstater case also treats the power to provide such facilities as an incident to the municipality's power to regulate traffic on its streets. We conclude that the City had the power to provide off-street parking facilities under its Charter.

Because the power resides in the City of provide such parking facilities, it does not follow that the City possesses the power to cede that power to someone else. Upon examination of the lease involved, it becomes apparent that the City is not exercising its powers to provide a public improvement at all; it is leasing its property to Zachry, Trustee, primarily for a private business without reservation of controls. The City, in no sense of the word, for forty years will provide parking facilities. It leases to Zachry the...