Giddings v. City of San Antonio

Decision Date01 January 1877
Citation47 Tex. 548
PartiesGEORGE H. GIDDINGS, ADM'R, v. CITY OF SAN ANTONIO.
CourtTexas Supreme Court

OPINION TEXT STARTS HERE

APPEAL from Bexar. Tried below before the Hon. Geo. H. Noonan.

The facts are given in the opinion.

W. B. Leigh, and Waelder & Upson, for appellant, cited and discussed San Antonio v. Jones, 28 Tex., 30;San Antonio v. Lane, 32 Tex., 405;San Antonio v. Gould, 34 Tex., 49;Tadlock v. Eccles, 20 Tex., 792;Sharp v. New York, 31 Barb., 572;Coburn v. Dodd, 14 Ind., 347;O'Leary v. County of Cook, 28 Ill., 534;People v. Lawrence, 36 Barb., 177;De Witt v. San Francisco, 2 Cal., 299;Washington v. Page, 4 Cal., 388;Pierpont v. Crouch, 10 Cal., 315; Cooley's Const. Lim., 144, 146; Dillon on Mun. Corp., sec. 28; Chiles v. Drake, 2 Met., (Ky.,) 146; Oldham Turnpike Co. v. Ballard, 2 Met. (Ky.;) Mosier v. Hilton, 15 Barb., 657;Fletcher v. Oliver, 25 Ark., 289; Johnson v. Higgins, 3 Met., (Ky.,) 566; People v. Mahaney, 13 Mich., 481;Fireman's Association v. Lounsbury, 21 Ill., 511;Parkinson v. State, 14 Md., 184;Reed v. State, 12 Ind., 641; Blood v. Mercelliot, 53 Penn. St., 391; Bright v. McCullough, 27 Ind., 223;Robinson v. Bank of Darien, 18 Ga., 65;Pim v. Nicholson, 6 Ohio St., 176;Morrison v. Springer, 15 Iowa, 304;Adams v. Howe, 14 Mass., 347;Sharpless v. The Mayor, 21 Penn., 162; The People v. Draper, 15 N. Y., 543.

McLeary & Wurzbach, for appellee, discussed the authorities cited by appellant.

King, also for appellee.

Peeler & Fisher, also for appellee.

ROBERTS, CHIEF JUSTICE.

This suit was instituted in the District Court of Bexar county, by G. H. Giddings as administrator of Emma Giddings, deceased, for the recovery of the amount of a bond and interest coupons attached, issued and delivered by the city of San Antonio to the “San Antonio and Mexican Gulf Railroad,” dated March 1, 1852, the principal of said bond being one thousand dollars.

The plaintiff alleges in his petition that the issuance of the bond and coupons sued upon was “authorized by a vote of the electors of the city of San Antonio, taken in accordance with the provisions of ‘An act to incorporate the San Antonio and Mexican Gulf Railroad,’ approved September 5, 1850.”

The defendant demurred to the petition of plaintiff, upon the ground “that the law under which said pretended claim of plaintiff accrued is unconstitutional, and therefore void and of no effect.”

The only question presented for decision is, that the twelfth section of the act of incorporation, by the authority of which the bond and interest coupons were issued, provides for another and different object from that which is the main object of the act, and that such different object is not expressed in the title, and is, therefore, in violation of that part of our Constitution which says that “every law enacted by the Legislature shall embrace but one object, and that shall be expressed in the title.” (Constitution of 1845.)

The main object of the law, which was enacted on the 5th of November, 1850, was to incorporate a company, and invest it with ample powers, as a corporate body to construct and operate a railroad from the city of San Antonio to some point on the Gulf of Mexico, in Texas.

The title of the act is, “An act to incorporate the San An tonio Railroad Company.”

The section of the act objected to as unconstitutional is as follows:

SECTION 12. That the mayor and aldermen of the city of San Antonio be and they are hereby authorized to subscribe to the capital stock of the said company, for said city, to an amount not to exceed fifty thousand dollars, as also such incorporated towns through which said railway may pass, inclusive of the town (if any) that may be its terminus on the Gulf, and to issue bonds bearing interest or otherwise, to pledge the faith of said city or towns to pay for the same; and the chief justices and county commissioners of the several counties through which the railway may pass shall be and they are hereby authorized to subscribe to the capital stock of said company, for their respective counties to pay the same: Provided, That the chief justices and county commissioners of said counties shall not make such subscription unless two thirds of the qualified electors of said county or counties, at an election to be held for that purpose, shall vote in favor of such subscription being made; and the chief justice of any such counties may order such election to be held, and shall give notice of the time and object of such election, by causing notice thereof to be posted in each precinct in the county at least thirty days before the holding of such election; said election to be conducted in the manner regulating county elections, so far as the same may be applicable; Provided, also, That said mayor and aldermen of the city of San Antonio, and the towns upon the line and at the terminus of said railway on the Gulf, shall not make such subscriptions unless two thirds of the electors of said city or towns, qualified to vote for town or city officers, at an election to be held for that purpose, shall vote in favor of such subscription being made; and the mayor of said city or towns may order such an election to be held, and shall give notice by publication in a newspaper published in the city or town, for at least twenty days previous to such election being held, and said election shall be conducted in the same manner regulating the respective city or town elections, so far as the same may be applicable; Provided, further, That when any such subscription shall be made, and bonds thereof be issued by the mayor and aldermen of any of said towns or city, or by the chief justice and county commissioners of any of said counties, it shall be their duty respectively to provide for the perpetual payment of the interest that may from time to time become due upon the same, and for the payment of the principal thereof, by levying and collecting a tax upon the real and personal property in the city, town, or county for which said subscription shall be made and bonds issued, which tax shall not be less than ten cents nor more than fifty cents on each and every one hundred dollars taxable property in said city, town, or county, and shall be assessed, and collected and paid into the treasury of said city, town, or counties by which it is levied, in the same manner the city or county tax in such city, or town or counties is assessed and collected, which tax shall be continued from year to year until the whole amount of the principal and interest due on said bonds shall have been fully paid and discharged; and when collected, after deducting therefrom the expenses of assessing and collecting, shall first be applied to the payment of the interest due on such bonds, and the remainder shall be applied to the payment of the principal on such bonds.”

This is the fourth time this section of the law has been before this court for the adjudication of its constitutionality. In the first case, this point was not raised, and was not decided. (San Antonio v. Jones, 28 Tex., 19.)

In the second case, it was presented, and this 12th section of the act was held to be constitutional. (City of San Antonio v. Lane, 32 Tex., 405.)

In the third case, it was presented, and the 12th section of the act was held to be unconstitutional, as embracing a distinct object not expressed in the title. (The City of San Antonio v. Gould, 34 Tex., 49.)

In the opinion delivered in the last case, Justice Walker says: “The plain and literal meaning of seventeen sections of the act make it an act of incorporation, the purpose of which is to build a railroad from San Antonio to the Gulf of Mexico, with the ordinary powers, rights, and privileges incident to such a franchise.

It will readily be seen that this section of the act (the 12th) is intended to enable the City of San Antonio and other towns and counties to become subscribers to the capital stock of the proposed San Antonio Railroad Company, directing the manner in which the stock shall be subscribed and paid.

The 12th section of the act would properly, in itself, be styled ‘An act to provide the means for building such railroad.’ 'DD' (Id., 73.)

It must be held in mind that this is a special act of incorporation; that in 1850, when it was passed, there was in existence no general law of this State authorizing cities, towns, or counties to subscribe for stock in railroads, or other works of internal improvement; nor, up to that time, had there been any decision of our Supreme Court in favor of the power of the Legislature to confer any such authority, and which was decided, for the first time, in the case of San Antonio v. Jones, above quoted, in 1866; that this 12th section of this special act assumed to increase the corporate capacity of municipal bodies, by conferring this important authority upon cities, towns, and counties; that none of them, except the city of San Antonio, were named in the act; that it was left uncertain and undetermined what other towns and counties were to be affected by the act, that depending upon the route of the railroad, and its point of destination upon the Gulf, as the road might afterwards be laid out and built; and that, by this section of the act, a vested right would be conferred upon the company, thus incorporated, to get the benefit of this privilege granted to any city, town, or county through which they might choose to carry the road, in its route to the Gulf in Texas, if such county, town, or city should see proper to exercise such privilege. (For the last proposition, reference may...

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