Amstater v. Andreas

• Decision Date: 27 October 1954
• Docket Number: No. 5049,5049
• Parties: J. M. AMSTATER et al., Appellants, v. Vincent ANDREAS and Henry Hicks, Appellees.
• Court: Texas Court of Appeals

Page 95

273 S.W.2d 95

J. M. AMSTATER et al., Appellants, v. Vincent ANDREAS and Henry Hicks, Appellees.

No. 5049.

Court of Civil Appeals of Texas, El Paso.

Oct. 27, 1954.

Rehearing Denied Nov. 17, 1954.

Potash, Cameron, Potash & Bernat, Travis White, City Atty., H. E. Brockmoller, Asst. City Atty., El. Paso, for appellants.

Cunningham & Malone, El Paso, for appellees.

McGILL, Justice.

This is a suit to determine the validity of a proposed bond issue of the City of El Paso. The purpose of the proposed bonds is to provide off-street parking facilities in the downtown business district of the city. By ordinance the city created Improvement District No. 3 and the bonds were approved by a vote of a majority of the taxpaying residents of that district who pay taxes on property situated in the district. The proposed bonds are to be paid from taxes on property in the district only.

The suit was filed by appellants and other taxpayers was favor issuance of the bonds against the city of El Paso, its Mayor and Aldermen. The relief sought was a judgment declaring the bonds valid and legal obligations against the real and personal property in the created Improvement District No. 3. In order to avoid any question of collusion the defendants impleaded Henry Hicks and Vincent Andreas, two taxpayers who own property in the district who are in the business of parking motor vehicles for hire, and who are violently opposed to the issuance of the bonds. Trial was to the court without a jury. The court held the bonds invalid, stating in the judgment that the court was of the opinion that there was no express authority or implied authority to the city of El Paso to issue the off-street parking bonds, and that it was the judgment of the court that the bonds were invalid as being issued in excess of the authority invested in the city of El Paso to issue bonds. The principal contention raised by this appeal is that the court erred in holding that the city lacked authority to issue the bonds.

The law in this state seems to be well settled that a home rule municipal corporation such as the City of El Paso may exercise such powers and only such powers as are expressly granted to it in its charter or such implied powers as are incident to the powers granted, or those essential and necessary to make effective the objects and purposes of the corporation. Davis v. City of Taylor, 123 Tex. 39, 67 S.W.2d 1033; Anderson v. City of San Antonio, 123 Tex. 163, 67 S.W.2d 1036.

As conferring authority to isse the bonds in question appellants rely on Sections 69 and 122 of the city charter, and Art. 1175 of the Revised Civil Statutes. This Article of the Revised Civil Statutes provides that home rule cities shall have full powers of local self government, and enumerates certain specific powers, among others

'Sec. 13. To buy, own, construct * * * and to maintain and operate a system or systems, of gas, or electric lighting plant, telephone, street railways, sewerage plants, fertilizing plants, abattoir, municipal railway terminals, docks, wharfs, ferries, ferry landings, loading and unloading devices and shipping facilities, or any other service or public utility.' (Emphasis ours.)

also

'Sec. 16. To have exclusive dominion, control, and jurisdiction in, over and under the public streets, avenues, alleys, highways and boulevards, and public grounds of such city.'

We think this statute has no application. It is no way relates to the issuance of bonds, but deals with the general powers of local self-government by home rule cities. This statute in its entirety was incorporated in the charter of the city of El Paso by amendment passed February 21, 1929. However, the amendment was of Section 70 of the charter, which relates to the general powers of local government, and in no way refers to the issuance of bonds. Therefore we think the amendment has no application to the question here presented.

The question before us is not whether the city has power to purchase and maintain off-street parking lots, but whether it has power to issue the bonds in question for this purpose. No statutory authority other than Art. 1175 has been cited, and we have found none authorizing home rule cities to issue bonds for off-street parking. We are therefore driven to the charter in search of such authority. Appellants earnestly insist that Sections 69 and 122 of the charter confer such authority on the city. These sections are here reproduced:

'Section 69: The City Council of the City of El Paso shall have power to borrow money on the credit of any inprovement district of the city and issue bonds therefor for permanent public improvements in such district, and to this end the Council may divide the City or any portion thereof, into improvement districts, clearly defining the limits of each district; but every proposition to borrow money on the credit of any improvement district for permanent improvements therein shall be submitted to the qualified tax-paying voters living and owning property in such district, and shall distinctly specify the purposes for which the loan is desired and the public improvements to be constructed, but several improvements of different and distinct character and nature may be submitted in one proposition. If said proposition be sustained by a majority of the votes cast in such election in such district, such loan shall be lawful. All bonds shall specify for what purpose they were issued, shall bear interest at a rate not greater than 5 per cent per annum, and when sold, shall net not less than par value, with accrued interest to date of payment of the proceeds into the city treasury, and such bonds may be negotiated in lots, as the City Council may direct. No debts shall be contracted for the payment whereof such bonds are issued until such bonds shall have been disposed of, and no debts shall ever be created against any such improvement district unless at the same time provision be made to assess and collect annually upon the property in such improvement district a sum sufficient to pay the interest on such bonds and create a sinking fund of at least 2 per cent thereon. The interest and sinking fund tax which shall be collected annually from the property in such improvement district for such bonds shall be in addition to the other current taxes levied by the city, and shall be kept separate by the city treasurer from other funds, and shall not be diverted or used for any other purpose than to pay interest and principal on such bonds and the city treasurer shall honor no draft on said fund except to pay the interest and redeem the bonds for which it was provided. The sinking fund for such bonds shall be invested in United States interestbearing bonds, or bonds of the State of Texas, or of El Paso County, Texas, or in bonds of the City of El Paso, and the interest of such bonds shall be reinvested invested and such bonds shall be sold when necessary to pay interest or principal of the bonds issued under the provisions of this section. The tax levied for interest and sinking fund for bonds issued for permanent public improvements in any district shall not exceed 50 cents on the $100.00 valuation annually, in addition to the $2 on the $100 valuation permitted to be levied by Section 134 of this charter.'

'Section 122. For the purpose of permanently improving the streets, erecting public buildings, constructing or acquiring canals for supplying the city with water, providing water works, and other permanent improvements, the City Council shall have power to borrow money upon the credit of the city, and to issue coupon bonds of the city therefor in such sum or sums as it may deem expedient, to bear interest, not exceeding five per cent per annum, payable semiannually at such place as may be fixed by city ordinance; provided, that the aggregate amount of bonds issued by the City Council and outstanding and unredeemed shall at no time exceed ten per cent of the value of the property within the city subject to ad valorem tax, according to the last assessment rolls; provided, that in estimating the total bonded debt of the city, the conded debt of any improvement district shall not be counted.'

The first question that presents itself is whether off-street parking lots constitute permanent public improvements for which the city is expressly authorized to issue bonds by the charter sections quoted. In Parr v. Ladd, 323 Mich. 592, 36 N.W.2d 157, 159, 8 A.L.R.2d 357, a statute was amended so as to provide that the term 'public improvements' should include automobile parking facilities, Pub.Acts 1933, No. 94, § 10, as amended by Pub.Acts 1946, 1 St.Ex.Sess., No. 23. However, the constitutional provision under which this statute was enacted was Article 8, Section 23:

"Any city or village may acquire, own, establish and maintain, either within or without its corporate limits, parks, boulevards, cemeteries, hospitals, almshouses and all works which involve the public health or safety." (Emphasis ours.)

The court said:

'It matters not whether such parking facilities be considered a public utility within the meaning of article 8, § 23, or an internal improvement under article 10, § 14, of the Constitution.'

In City of Whittier v. Dixon, 24 Cal.2d 664, 151 P.2d 5, 7, 153 A.L.R. 956 the contention was made that public parking places are not public improvements. In disposing of this contention the court said:

'Respondent contends that public parking places are not public improvements. The Legislature, however, has expressly authorized the acquisition of parking places to serve the public, and the legislation is valid so long as it serves some public purpose. In re Smith, 143 Cal. 368, 77 P. 180; County of Los Angeles v. Dodge, 51 Cal.App. 492, 197 P. 403; Egan v. San Francisco, 165 Cal. 576, 133 P. 294, Ann.Cas. 1915A, 754; Larsen v. San Francisco, 182 Cal. 1, 186 P. 757; Irish v. Hahn, 208 Cal. 339, 281 P. 385, 66 A.L.R. 1382. Just as public streets...