City of Austin v. McCall

• Decision Date: 09 June 1902
• Parties: CITY OF AUSTIN et al. v. McCALL.
• Court: Texas Supreme Court

68 S.W. 791

CITY OF AUSTIN et al. v. McCALL.

Supreme Court of Texas.

June 9, 1902.

Error to court of civil appeals of Third supreme judicial district.

Injunction by John D. McCall against the city of Austin and others to restrain the purchase of water and electric light works. From a decision of the court of civil appeals affirming a decree for plaintiff (67 S. W. 192), the defendants bring error. Reversed.

V. L. Brooks and Clarence H. Miller, for plaintiffs in error. S. R. Fisher, D. W. Doom, and T. B. Cochran, for defendant in error.

BROWN, J.

On the 13th day of April, 1882, the city of Austin, a municipal corporation organized under special act of the legislature of Texas, entered into a contract, by ordinance duly passed by the city council, with the Austin Water, Light & Power Company, of the city of Austin, a corporation organized under the laws of the state of Texas, whereby the right and privilege were granted to the company to furnish water to the city of Austin for the period of 20 years at the rate of $12,100 per annum. This contract was carried out by both parties for a number of years, when the city of Austin, having constructed a water and light plant of its own, refused to take water from the Austin Water, Light & Power Company, whereupon suits were filed in the United States circuit court at various times, which resulted in large judgments against the city, amounting to $65,000; and there existed a claim of the water, light, and power company against the city for water furnished, and for which claim no suit had been instituted or judgment rendered. The judgments and the claim aggregated $82,317.19. On September 30, 1901, the mayor and the city council of Austin passed a resolution whereby the city agreed to purchase the plant of the Austin Water, Light & Power Company at the price of $175,000, and to pay all judgments and claims against the city for water furnished prior to that date, if the pending suits should be decided against the city. The amount was to be paid by the city in installments not to exceed $25,000 per annum, and to be applied (1) to the extinguishment of the interest for each year on the whole sum of purchase price and judgments and claims against the city; (2) to the payment of the principal and interest of the judgments and claims of the water and light company against the city; and (3) to the payment of the purchase price of the plant. The taxable value of all property in the city of Austin, as shown by the tax rolls for the year 1900, amounting to $9,030,000, the tax of one-fourth of 1 per cent. upon the valuation would not yield $25,000. The mayor and city council were proceeding to consummate the purchase of the plant under the contract made by the resolution before stated, when John D. McCall, a citizen and taxpayer of the city, owning property valued for taxation at the sum of $5,000, obtained an injunction enjoining the city of Austin and its mayor and city council from making the purchase under the said contract. The allegations of the petition for injunction, so far as necessary, will be stated in the opinion, and the pertinent provisions of the charter of the city of Austin will be referred to and stated. The case was submitted to the district judge upon an agreed statement of the facts, and a judgment was entered perpetuating the writ of injunction, which judgment was affirmed by the court of civil appeals. 67 S. W. 192.

Counsel for the city claim that power to purchase the water, light, and power plant is conferred upon the city by section 70, par. 46, of its charter, from which we quote as follows:

"To erect, construct, build, operate and maintain a water and electric light system to supply the city and its inhabitants with water and electric lights, by constructing and maintaining a reservoir of water in and about the channel of the Colorado river, within and without the city limits, by means of the dam across the same, as the same is now constructed, to serve as a reservoir and to furnish power to operate an electric light system, and build such other reservoirs as may be necessary, at such an elevated point within and without the city as may be necessary to supply the higher portions of the city with water." Sp. Laws 1899, p. 20.

The defendant in error contends that the portion of the charter before quoted was repealed by section 103 of said charter, which is in these words:

"The board [the water, light, and power commission], and their successors, shall take and hold possession of, and have and receive general and exclusive supervision, management and control of the system of water-works, electric lights and power plants of the city of Austin, and all property, funds and business belonging or appertaining thereto; and it shall have the exclusive power, and it is charged with the duty, as a branch of the city government, to furnish all water, light and power adequate to the requirements of the city of Austin for public use, * * * and shall have the power to improve, extend, add to or change said system under its control, as the board may from time to time determine, and to dispose of all property not needed for the proper management of the plant and system." Id. p. 26.

The section last quoted does not confer upon the water and light commission any power which is inconsistent with that conferred upon the city council by section 70, par. 46, as above quoted. The city, by its charter, is empowered to construct, operate, and maintain a water and electric light system, which is entirely consistent with the provisions of section 103, which confer upon the water and light commission the authority to receive and have exclusive supervision, management, and control of the system of waterworks, electric lights, and power plants of the city of Austin, and all property, funds, and business belonging or appertaining thereto; also the power to construct wells, canals, and such improvements as it might deem needful for properly carrying on the business in pursuance of its powers as such board. The city council represents the city, having power to contract and to perform agreements. The water and light commission is an instrument created by the law, by which the city of Austin performs the duties and exercises the powers conferred upon the water and light commission. The commission is not a corporate body. The authority of the water and light commission is confined to such plants as it may receive from the city government. It acts for the city,—is not authorized to buy, nor is it necessary for the exercise of the powers granted that it should acquire, another plant. We conclude that the water and light commission has no power to construct or to purchase a plant. Its powers relate to and are confined to a plant or plants provided by the city.

We recur to the question, does section 70 of its charter confer upon the city authority to purchase the Austin light and power plant? The terms of the statute by which the city is authorized to construct waterworks are so definite, and prescribe so specifically the place where the plant shall be constructed, and the manner in which it shall be built, that it cannot be construed as authorizing the city to acquire such plant in any other manner. An implied power must arise out of, and be appropriate to the execution of, an express power; but...