City of Corpus Christi v. Woessner

• Citation: 58 Tex. 462
• Decision Date: 30 January 1883
• Docket Number: Case No. 1383.
• Court: Supreme Court of Texas
• Parties: THE CITY OF CORPUS CHRISTI v. JOHN WOESSNER.

58 Tex. 462

THE CITY OF CORPUS CHRISTI

v.JOHN WOESSNER.

Case No. 1383.

Supreme Court of Texas.

Jan. 30, 1883.

APPEAL from Nueces. Tried below before the Hon. John C. Russell.

The opinion states the case.

Welch & Givens, for appellant.

I. The authority or power of an incorporated city to issue treasury warrants or create a debt, and the ordinances or resolutions of the city council of that city authorizing or validating the same, should be pleaded in an action upon such treasury warrants or debt created. Appellant filed a general demurrer to plaintiff's petition, and also specially demurred thereto because said petition failed to recite any ordinance or resolution of the city of Corpus Christi authorizing or creating the debt sued on. The court overruled the general and special demurrer embracing the above, and appellant excepted. Const., art. III, sec. 53; art. XI, secs. 4, 5, 7; R. S., arts. 419, 427, 365; City of Marshal v. Bailey, 27 Tex., 686;City of Bryan v. Page, 51 Tex., 532;Williams v. Davidson, 43 Tex., 2; Dillon on Mun. Corp., p. 493.

II. It is error for a trial court to admit, over objections, as evidence in a suit for debt, upon warrants, against a municipal corporation, such city warrants, until it is shown the conditions precedent of their creation, as fixed by statute, have been complied with. Const., art. III, sec. 53; art. XI, secs. 4, 5, 7; R. S., arts. 419, 427, 365, 370, 371, 372; City of Bryan v. Page, 51 Tex., 532;Williams v. Davidson, 43 Tex., 2;Mayor v. Ray, 19 Wall., 468;Glass v. Ashbury, 49 Cal., 571; Dillon on Mun. Corp., p. 493, note 2, and pp. 450 and 451; Cooley's Const. Lim., pp. 237, 238, 257; Sedgwick on Const. of Stat. and Const. Law, p. 411; Merriwether et al. v. Garrett et al., 23 Alb. L. J., p. 33. Municipal corporations have in this state no power to create debts except in accordance with the constitution and law, framed to keep them within bounds. As municipal debts can but be the creation of the statute, every condition precedent of the statute must be complied with. The creditor is bound to see the conditions complied with, and his rights as a creditor are contingent upon a strict adherence to the letter of the law by the municipal debtor. As his rights as a creditor are derived from the statute, he must not only plead facts bringing him within the provisions of the statute as a creditor, but the burden of proof is upon him to adduce facts in evidence to show himself within reach of the statute. In this case, after exhausting her ordinary revenues, a city creates a so-styled floating debt of thousands of dollars, and in disregard of every constitutional and statutory provision regulating municipal indebtedness. The creditor who sanctions the illegal action and risks his money upon such ventures, and absorbs by purchase the evidences of such indebtedness, has surely no strength of claim in the mere possession of evidence of the illegal transaction; something more is required. The evidence he offers must show upon its face an authority of law for his possession; provision made to liquidate the same, as by the constitution and law provided; and however great the seeming hardship, if he cannot show an indebtedness of the municipality he sues, within the limits and conditions imposed upon it by law, he is without remedy.

III. It is error to grant a peremptory writ of mandamus against a municipal corporation to control the discretionary power of its city council and officers, unless refusal or unreasonable neglect be shown by them to perform some duty clearly enjoined upon them by law. Const., art. XI, secs. 4, 6 and 7; R. S., arts. 370, 371, 372, 419, 420, 427, 437; Durrett v. Crosby, 28 Tex., 687;Tabor v. Com'r, 29 Tex., 508;Horton v. Pace, 9 Tex., 81;Commissioners v. Smith, 5 Tex., 471;Arberry v. Beavers, 6 Tex., 457; Dillon on Mun. Corp., secs. 832, 851, 854, 862, 863.

IV. The judgment of the court was contrary to the law and the evidence, and a new trial should have been granted. No debt shall ever be created by any city, unless at the same time provision be made to assess and collect annually, a sufficient sum to pay the interest thereon and create a sinking fund of at least two per cent. thereon. Const. 1876, art. XI, secs. 5, 7; R. S., art. 427. No order on the treasurer of a city shall be paid by him unless said order shows upon its face that the city council has directed its issuance, and for what purpose. R. S., art. 365. The city council shall have the management and control of the finances of the city; shall have power to appropriate money and provide for payment of the debts and expenses of the city, and to provide by ordinance special funds for special purposes, and make the same disbursable only for the purpose for which the fund was created. R. S., arts. 370, 371, 372. The city council may also levy, assess and collect taxes necessary to pay the interest and provide a sinking fund, to satisfy any indebtedness heretofore legally made and undertaken; but all such taxes shall be assessed and collected separately from that assessed and collected for current expenses of municipal government. R. S., art. 437. Municipal corporations can exercise those powers only which are expressly or impliedly conferred, subject to such regulations or restrictions as are annexed to the grant. Pye v. Peterson, 45 Tex., 312. The charter by which a municipal corporation is created is its organic act. It can do not act and make no contract not authorized thereby. Williams v. Davidson, 43 Tex., 2. And a city cannot be bound by an implied contract to do that which it is forbidden to do by its charter. City of Bryan v. Page, 51 Tex., 532.McCampbell & Givens, for appellee.

STAYTON, ASSOCIATE JUSTICE.

This action was brought by John Woessner against the city of Corpus Christi, upon forty-eight warrants drawn by the mayor and secretary of the city upon the treasurer.

Thirty-two of the warrants, not interest-bearing, were drawn upon claims which had been audited by the city council for matters pertaining to the current business and expense of the city, of all of which the appellee had become the owner.

Fifteen of the warrants were drawn in favor of officers of the city for current salaries, which had been fixed by the city council, which had directed that they should be interest-bearing, and they were so made upon their faces; of all of these the appellee had become the owner.

The other warrant was drawn in favor of the appellee in cancellation and settlement of outstanding warrants of which he was the owner, which amounted to nearly double the sum for which the warrant was drawn. This warrant was made interest-bearing by order of the city council.

All of the warrants were drawn to meet current expenses of the city during the years 1878 and 1879, and it appears that the taxes authorized by law to meet the current expenses of the city with funds which, it seems, the city derived from certain wharf privileges, would have been more than sufficient to meet the current expenses and pay all of the warrants; but in the year 1879 the city (by what authority is not shown) appropriated $10,000 of the revenue arising from its wharf privileges to assist in deepening Corpus Christi pass.

In the beginning of the next municipal year, April, 1880, appellant passed an ordinance, the third section of which, in substance, declares that “all sums of money now in the treasury of the city, or that may come into its hands from...