Cameron v. City of Waco

Citation8 S.W.2d 249
Decision Date19 April 1928
Docket Number(No. 661.)
PartiesCAMERON et al. v. CITY OF WACO et al.
CourtCourt of Appeals of Texas

Appeal from District Court, McLennan County; Sam R. Scott, Judge.

Action by W. W. Cameron and others against the City of Waco and others for an injunction. Judgment for defendants, and plaintiffs appeal. Affirmed.

Sleeper, Boynton & Kendall, Williams, Williams, McClellan & Lincoln, Miller & Price, and R. H. Kingsbury, all of Waco, for appellants.

John McGlasson, Weatherby & Rogers, and Geo. W. Morrow, all of Waco, for appellees.

BRADLEY, Special Justice.

W. W. Cameron and other property tax paying citizens of the city of Waco brought this suit against the city, its mayor, its board of commissioners, and its secretary, and the Attorney General of Texas, in the Nineteenth district court of McLennan county, seeking a temporary writ of injunction to restrain the issuance and sale of certain waterworks bonds by the city, but the writ was refused by Judge Sam R. Scott, judge of said court, and plaintiffs have prosecuted this appeal from that order.

The case of Cameron et al. v. Connally et al. (Tex. Com. App.) 299 S. W. 221, arose from, and was a contest of, the election involved in this suit, but it does not materially affect this case otherwise than as an adjudication of the validity of the election.

Appellants, by their verified petition, alleged that the election involved in the Cameron Case, supra, was ordered by the city commission, by ordinance, to determine whether bonds of the city to the amount of $3,500,000 should be issued for the purpose of impounding water in the Bosque river to furnish a better water service for the city, and for the general enlargement and betterment of such water supply. The ordinance was pleaded and a copy attached, and notice of such election was duly given, the election held, the result canvassed, and declared favorable to the issuance of the bonds. There are no disputed facts; and in addition to the grounds of complaint made in appellants' petition, the substance of which is embraced in the summarization following, other necessary allegations were made sufficient to show that appellants were entitled to maintain this suit if they had a meritorious cause of action as matter of law.

Appellants were not required to file assignments of error (R. S. art. 4662), nor did they do so, but they have summarized the grounds of their complaint in their brief.

At the threshold of this case, we are met by appellees' contention that the suit was prematurely brought and the court a quo had no jurisdiction over same, and hence this court has none, because the statute and the city charter provide that the validity of such bonds shall first be tested by the Attorney General before the court's jurisdiction may be invoked. R. S. art. 1175, par. 10; Waco City Charter, § 204.

The requirement of the law had been substantially complied with before the court's aid was invoked by this suit. Appellants alleged that the city had authorized the issuance of $1,000,000 of said bonds, which had been submitted to the Attorney General for his approval, and that unless restrained therefrom he would approve them. The Attorney General answered that he had examined the record of such bond issue, was of opinion that they were being issued in accordance with law, and that he deemed it his duty to approve them, which he would do unless restrained therefrom. If appellants had a meritorious cause, as alleged, it was obviously necessary and proper for them to invoke the aid of a court of equity at the time they did, in order to maintain the subject-matter of the suit in statu quo, else the bonds probably would have been quickly and speedily sold and passed into innocent hands, when approved by the Attorney General, and thus placed beyond the power of the court to aid appellants. Fry v. Jackson (Tex. Civ. App.) 264 S. W. 612, 615. If appellants should be required to await the entire completion of the approval and registration of the bonds by the intervening functionaries before resorting to the court to stay the impending injury to them, their remedy would be slain by the meat upon which it fed.

Before approaching the consideration of appellants' contentions, some general observations may not be inappropriate.

The state Constitution, the Enabling Act, and the general laws of the state in pari materia constitute the fundamental laws of home rule cities, and they rank in the order above given. Brown v. Fidelity Inv. Co. (Tex. Com. App.) 280 S. W. 567; City of Beaumont v. Fall, 116 Tex. 314, 291 S. W. 202. In addition, the city itself may legislate, subject only to the restriction that it may not enact any law inconsistent with the general laws of the state. The Enabling Act, of course, is a general law, and the classification of cities made therein is not objectionable as class legislation. The Legislature may classify cities and towns based upon a substantial difference and when not arbitrary or fictitious, and the mere fact that a law applies only to one class of cities and not to another class does not make such act a special law. Pierce v. Watkins, 114 Tex. 153, 263 S. W. 905.

The Legislature and the cities may adopt laws, otherwise unobjectionable, by appropriate reference, without the necessity of re-enacting them in terms, and such procedure is not offensive to the provisions of the Constitution inhibiting revivals or amendments of laws by reference. Constitution, art. 3, § 36; Quinlan v. H. & T. C. Ry. Co., 89 Tex. 356, 371, 34 S. W. 738, 741; Trimmier v. Carlton, 116 Tex. 572, 579, 296 S. W. 1070, 1074.

The city of Waco accepted the benefits of the Home Rule Amendment to the Constitution (art. 11, § 5) and the Enabling Act (R. S. arts. 1165 to 1182), and adopted a special charter under them. The amendment authorizes the city, subject to such limitations as may be prescribed by the Legislature, and providing that no charter or ordinance passed under said charter shall contain any provision inconsistent with the Constitution of the state or the general laws enacted by the Legislature of this state, to levy and collect taxes authorized by law, not exceeding 2½ per cent. of the value of the taxable property, but no debt shall be incurred unless at the same time provision is made to assess and collect annually sufficient funds to pay interest and create a 2 per cent. sinking fund. The Enabling Act (article 1175) provides that such cities shall have full power of local self-government, and, after enumerating a great many specific powers granted, further provides (article 1176) that such enumeration of powers shall not preclude such cities from exercising the powers incident to local self-government, provided, of course, no such power shall be exercised which is violative of the Constitution. The specific powers enumerated include "the power to issue bonds upon the credit of the city for the purpose of making permanent public improvements or for other public purposes * * * provided, that said bonds shall have first been authorized" by the voters of the city; and after their approval by the Attorney General, may be issued by such cities, either optional or serial or otherwise as may be deemed advisable by the governing authority. R. S. art. 1175, par. 10. And they shall also have the exclusive right to own, erect, maintain, and operate waterworks and waterworks system for the use of any city and its inhabitants, and to acquire suitable grounds within and without the city for that purpose, and to do and perform whatsoever may be necessary to operate and maintain same. The power of eminent domain is also conferred upon such cities, to take property within or without the city for such purposes. There are also numerous provisions of the city charter in accord with the foregoing, not necessary to be here set out.

In their brief, appellants have formulated and set out seven grounds of complaint or points which epitomize the substantive part of their petition. We have grouped such points into four paragraphs and dispose of them accordingly.

First. Points 1 and 2 complain that the city of Waco had no authority to create the debt contemplated in this bond issue, because the levy of a sufficient tax to pay the annual interest on such debt and provide the sinking fund required by law would necessitate a rate of taxation in excess of the constitutional limitation; and, conversely, that if a tax should be levied sufficient for such purposes, in that event, sufficient funds for the maintenance of the city government could not be produced from a rate of taxation within such constitutional limitations.

To correctly understand and interpret a statute, the state of the law at the time of its enactment and the mischief sought to be corrected by it are to be taken into consideration. Formerly, the statutes did not inhibit the governing bodies of municipalities issuing bonds (Citizens' Bank v. City of Terrell, 78 Tex. 450, 14 S. W. 1003); and hence such bodies issued their bonds at will and, no doubt, in many instances, contrary to the wishes and desires of the taxpayers of such municipalities; but to correct this evil the Legislature passed restrictions upon the uncontrolled exercise of such authority, requiring the consent of the voters of such municipalities before such authority should be exercised. The statute was passed, not to confer authority, but to restrict power, to issue bonds, and, this being true, it is apparent that the authority to issue an excessive amount of bonds should not affect nor restrict the power of the governing body of municipalities to issue such amount of bonds as their respective property values would authorize and sustain, under the constitutional limitations.

This position is strengthened by the requirement that after such bonds have been first authorized by the voters, and after their approval by ...

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8 cases
  • Dacus v. Parker
    • United States
    • Texas Supreme Court
    • June 12, 2015
    ...election where three related propositions were voted on, two of which mentioned the tax that would be imposed).But see Cameron v. City of Waco, 8 S.W.2d 249, 255 (Tex.Civ.App.–Waco 1928, no writ) (holding that bond election was valid although election order did not mention the levy of taxes......
  • City of Davenport v. Seymour
    • United States
    • Iowa Supreme Court
    • August 29, 2008
    ...In the context of state-local preemption, the silence of the legislature is not prohibitory but permissive. See Cameron v. City of Waco, 8 S.W.2d 249, 254 (Tex. Civ.App.1928) (holding that rule of expressio unius est exclusio alterius does not apply in determining scope of municipal powers ......
  • Dry v. Davidson
    • United States
    • Texas Court of Appeals
    • February 24, 1938
    ...home rule cities in such way as it sees fit, provided it does not do so by local or special laws. 30 Tex. Jur. § 89; Cameron v. City of Waco, Tex. Civ.App., 8 S.W.2d 249; Trewitt v. City of Dallas, Tex.Civ.App., 242 S.W. 1073; O'Brien v. Amerman, 112 Tex. 254, 247 S.W. 270; Hunt v. Atkinson......
  • Dacus v. Parker
    • United States
    • Texas Supreme Court
    • June 12, 2015
    ...election where three related propositions were voted on, two of which mentioned the tax that would be imposed). But see Cameron v. City of Waco, 8 S.W.2d 249, 255 (Tex. Civ. App.—Waco 1928, no writ) (holding that bond election was valid although election order did not mention the levy of ta......
  • Request a trial to view additional results

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