Biddle v. City of Terrell
| Decision Date | 24 November 1891 |
| Parties | BIDDLE v. CITY OF TERRELL. |
| Court | Texas Supreme Court |
Action by John G. Biddle against the city of Terrell upon promissory notes. Judgment for defendant upon demurrer to the petition. Plaintiff appeals. Affirmed.
Manion & Huffmaster, for appellant. J. O. Terrell and Word & Charlton, for appellee.
This suit is by appellant against appellee to recover on two promissory notes executed by appellee October 27, 1885, — one for $1,404, and the other for $103, — both due nine months after date, bearing interest from date at 8 per cent. per annum. These notes were executed by the city of Terrell as the result of a compromise of a certain suit instituted by Hinds & Rousseaux against the city of Terrell to recover balance due on a contract to erect for the city a town-hall and school building. The petition, among other things, alleges that the city refuses to pay the notes, and has refused to levy and collect taxes to pay same. The court below sustained a general demurrer to the petition. Plaintiff declining to amend, judgment was rendered that he take nothing by his suit, and that defendant go hence with its costs. The petition states a good cause of action against the city, with the exception that it fails to allege that any provision was made by the city for the payment of the notes. For reason of the defect in the petition in this respect it is evident the demurrer was sustained. The constitution requires that cities, in creating debts, shall at the same time make provision for the payment of the debts by assessing and collecting tax to pay the interest thereon, and to furnish a sinking fund to meet the principal. This requirement of the constitution has been held not to apply to debts created by the city for current expenses. It is not contended that the debts evidenced by these notes are for current expenses. Construction has been given these provisions of the constitution in the case of City of Terrell v. Dessaint, 71 Tex. 772, 9 S. W. Rep. 593. The court in that case says: "The language is general and unqualified, and we find nothing in the context to indicate that the framers of the constitution did not mean precisely what it said; that is, that no city should create any debt without providing by taxation for the payment of the sinking fund and interest." The appellant seeks to avoid the defect of the...
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