City of Fort Worth v. Bobbitt, 1455-5690.

• Citation: 36 S.W.2d 470
• Decision Date: 04 March 1931
• Docket Number: No. 1455-5690.,1455-5690.
• Parties: CITY OF FORT WORTH v. BOBBITT, Atty. Gen.
• Court: Supreme Court of Texas

36 S.W.2d 470

CITY OF FORT WORTH v. BOBBITT, Atty. Gen.

No. 1455-5690.

Commission of Appeals of Texas, Section A.

March 4, 1931.

Original mandamus proceeding on the relation of the City of Fort Worth and others against Robert Lee Bobbitt, to compel respondent, as Attorney General of the state, to approve certain special improvement bonds or certificates.

Writ denied.

R. E. Rouer, City Atty., and George C. Kemble, both of Fort Worth, and John D. McCall, of Dallas, for relator.

James V. Allred, Atty. Gen., and Scott C. Gaines, Asst. Atty. Gen., for respondent.

CRITZ, J.

This is an original mandamus proceeding filed by the city of Fort Worth, Tex., a city duly and legally incorporated under and by virtue of the laws of the state of Texas, and operating as a home-rule city, with a population of more than 15,000 inhabitants, and by certain officers of said city against the Attorney General of this state to compel the approval of certain "special improvement bonds or certificates" issued by the city of Fort Worth under the provisions of chapter 43, p. 82, General Laws 4th Called Session 41st Legislature, 1930 (Vernon's Ann. Civ. St. art. 835b).

The Attorney General has declined to approve such bonds, and contends that the act attempting to authorize the issuance of same is unconstitutional and void for several reasons. We deem it only necessary to discuss one of such reasons.

The Attorney General contends that the act in question is in contravention of section 56 of article 3 of our state Constitution in that same seeks to regulate the affairs of a city and seeks to change the charter of an incorporated city by a local law.

The caption of the act in question reads as follows: "An Act providing that certain cities having the population requirements set forth herein may acquire and own special assessment certificates issued in connection with street improvements, that such cities may pledge and impound said certificates as the basis for the issuance of special improvement bonds subject to the limitations and provisions of this Act; providing for use of funds from the sale of such bonds; providing that such bonds shall not be reckoned in determining charter, Constitutional or Statutory bond limitations and shall not constitute indebtedness of the city contemplated under certain provisions of the Constitution; prescribing Statutory duties imposed on such cities when such bonds are issued; providing for the examination and approval of such bonds by the Attorney General, and for their registration by the Comptroller; and declaring an emergency."

Section 1 of the act (Vernon's Ann. Civ. St. art. 835b, § 1) in question reads as follows: "Section 1. Cities in the State of Texas having not less than 106,000 inhabitants and not more than 110,000 inhabitants, according to the United States Census of 1920, may proceed in accordance with the provisions hereof, independently of and without reference to any other applicable law or charter provision, present or future, which, however, shall remain in force as alternative (alternative) methods. The terms `city', `such city', `said city', and the plurals thereof, shall mean a city or cities included under the provisions of this Act."

Section 56 of article 3 of our state Constitution, so far as applicable to this case, reads as follows:

"Sec. 56. The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law, authorizing: * * *

"Regulating the affairs of counties, cities, towns, wards or school districts. * * *

"Incorporating cities, towns or villages, or changing their charters."

It will be noted that section 1 of the act confines its application absolutely to cities which, according to the United States census of 1920, contain not less than 106,000 and not more than 110,000 inhabitants. An examination of the census referred to discloses that the city of Fort Worth, Tex., is absolutely the only city in the state of Texas that has a population coming within the provisions of this act. Furthermore, the act is so constructed that it is absolutely impossible for any other city in the state to ever be included within the terms or under the provisions of the act. It is therefore our opinion that this act is confined in its application to the city of Fort Worth only, just as clearly, and just as effectively as if the stipulation with reference to population had been omitted and the name "Fort Worth" written therein in its stead. The Constitution in plain and simple terms prohibits the enactment of any local or special law regulating the affairs of cities, or changing their charters. It cannot be denied that this law does have reference to regulating the affairs of cities. If it is a local or special law, it is therefore unconstitutional and void.

We presume that no one would contend, if the name "Fort Worth" had been inserted in the law in place of the stipulation with reference to population, that the act would be constitutional. If we should hold this law to be constitutional when it describes and confines its application absolutely to one city, we would in effect be holding the constitutional provision under discussion an idle and a vain thing, and can be evaded by a subterfuge. We therefore hold that the act in question is unconstitutional and void. Lewis' Sutherland Stat. Construction (2d Ed.) p. 397 et seq. and notes. Parker-Washington Co. v. Kansas City, 73 Kan. 722, 85 P. 781, 782; Hibbard v. State, 65 Ohio St. 574, 64 N. E. 109, 112, 58 L. R. A. 654; Gray v. Taylor, 227 U. S. 51, 33 S. Ct. 199, 201, 57 L. Ed. 413; 36 C. J. 96.

We quote the following from Sutherland, supra.

"A classification based upon existing or past conditions...