City of Fort Worth v. Bobbitt

• Court: Texas Supreme Court
• Writing for the Court: Critz
• Citation: City of Fort Worth v. Bobbitt, 41 S.W.2d 228 (Tex. 1931)
• Decision Date: 22 July 1931
• Docket Number: Motion No. 9571; No. 1455-5690.
• Parties: CITY OF FORT WORTH v. BOBBITT, Atty. Gen.

41 S.W.2d 228

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

Motion No. 9571; No. 1455-5690.

Commission of Appeals of Texas, Section A.

July 22, 1931.

On motion for rehearing.

Motion overruled.

For original opinion, see 36 S.W.(2d) 470.

R. E. Bouer, 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.

As shown by our original opinion, 36 S.W. (2d) 470, this is an original mandamus proceeding filed by the city of Fort Worth, a city duly and legally incorporated under and by virtue of the Constitution and laws of this state, with a population of more than 5,000, and operating under a special charter as a home rule city, against the Attorney General of Texas. As originally filed, the petition sought a mandamus to compel the Attorney General to approve certain "special improvement bonds or certificates," issued by the city under the provisions of chapter 43, p. 82, General Laws, 4th Called Session, 41st Legislature, 1930. The Attorney General declined to approve such bonds, contending that the act above mentioned was unconstitutional and void in several particulars.

In our original opinion, we sustained the contentions of the Attorney General to the effect that the above act was unconstitutional and void because in contravention of section 56 of article 3 of our State Constitution, in that said original act sought to regulate the affairs of a city by a local law. This holding settled the case in its then status, and we did not pass on the other constitutional objections made by the Attorney General.

After the original opinion herein was adopted by the Supreme Court, and after the judgment therein recommended was entered, and prior to the filing of the instant motion for rehearing, the Legislature of Texas, convened in its 42d Regular Session, passed a new law which is H. B. No. 882, and which became effective March 27, 1931 (Sp. Laws 1931, c. 74 [Vernon's Ann. Civ. St. art. 835d]). The provisions of the new law are substantially identical with those of the old law in so far as the issuance of "special improvement bonds or certificates are concerned." The new law, however, is made applicable to "Cities in the State of Texas, having a population of more than 100,000 inhabitants according to the last preceding United States census."

It is admitted that Fort Worth has a population of more than 100,000, as shown by the 1930 census.

From the statement we have made, it is evident that the new law is not subject to the objection that it is a local or special law in violation of section 56, of article 3 of our State Constitution, as was the old law.

Also, the new law contains the following validating provision: "Sec. 9. All proceedings heretofore had by any city acting under the provisions of Chapter 43, passed by the 4th Called Session of the 41st Legislature, are hereby expressly validated. All ordinances and resolutions passed by the governing boards of said cities in reference to accepting the powers and assuming the duties permitted and prescribed under said law, and all resolutions and ordinances pledging and impounding special assessment certificates thereunder, authorizing the issuance of special improvement bonds and assuming the statutory duties imposed under said law, and all actions of said city officials in executing special improvement bonds thereunder and in performing all other acts under said law, are hereby legalized and validated." (Vernon's Ann. Civ. St. art. 835d, § 9).

For the purpose of this opinion, we shall assume that the above validating provision has effect to validate the bonds issued under the old law, if such bonds would be valid had they been issued under the new law.

After the passage of the new law, the Attorney General again refused to approve the bonds in question here, contending that the new law is unconstitutional and void because in contravention of sections 5 and 7 of article 11 of our State Constitution. This same objection was originally made by the Attorney General while approval was sought under the old law, but was not passed on by us, for the reason that the matter we did pass on settled the cause as it then stood.

The matter to be first considered is one of procedure. The Supreme Court granted permission to file petition for mandamus under the old law. The city is now seeking relief under the new law by way of a motion for rehearing. Ordinarily under such circumstances the commission would be inclined to the view that a new petition for mandamus and a new permission to file should be required; but inasmuch as the same constitutional objections to the new law were involved while the application was pending under the old law, and inasmuch as the same relief is sought under the new law that was sought under the old law, we shall proceed to determine the validity of the new law.

As above stated, the Attorney General refuses to approve the bonds in question, under the new law, and contends that the new law is unconstitutional and void as was the old law, because in violation of sections 5 and 7 of article 11 of our State Constitution. These sections read as follows:

"Sec. 5. Cities having more than five thousand (5000) inhabitants may, by a majority vote of the qualified voters of said city, at an election held for that purpose, adopt or amend their charters, subject to such limitations as may be prescribed by the Legislature, and providing that no charter or any ordinance passed under said charter shall contain any provision inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State; said cities may levy, assess and collect such taxes as may be authorized by law or by their charters; but no tax for any purpose shall ever be lawful for any one year, which shall exceed two and one-half per cent. of the taxable property of such city, and 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 creating a sinking fund of at least two per cent. thereon; and providing further, that no city charter shall be altered, amended or repealed oftener than every two years."

"Sec. 7. All counties and cities bordering on the coast of the Gulf of Mexico are hereby authorized upon a vote of two-thirds of the taxpayers therein (to be ascertained as may be provided by law), to levy and collect such tax for construction of seawalls, breakwaters or sanitary purposes, as may be authorized by law, and may create a debt for such works and issue bonds in evidence thereof. But no debt for any purpose shall ever be incurred in any manner by any city or county unless provision is made, at the time of creating the same, for levying and collecting a sufficient tax to pay the interest thereon and provide at least two per cent. as a sinking fund; and the condemnation of the right of way for the erection of such works shall be fully provided for."

A reading of the entire act under investigation, discloses the following:

(a) By the provisions of section 2, the city, when it desires to improve its streets in such a way that a part of the costs shall be paid by the owners of benefited property, and in such a way that assessment certificate or mechanic lien agreements are authorized or required, is given the right to acquire such certificates and mechanic liens. The city is then given the right to impound such certificates and liens in the hands of the city treasurer or a trustee, and based upon such impounded certificates or liens the city may issue "special improvement bonds or certificates" in an amount not exceeding 90 per cent. of the aggregate amount of the certificates or liens impounded, such "special improvement bonds or certificates" to mature serially or otherwise within 15 years from their date. This section contains other provisions not necessary to mention here.

(b) By the provisions of section 3 of the act, the city is given the right to use any funds of the city which may lawfully be devoted to the purpose in acquiring the certificates and liens in question, and it is provided that the proceeds from the sale of the special improvement bonds may be used to reimburse the city for the funds used in purchasing the certificates and liens, and the city is authorized to use the proceeds of the sale of such bonds in acquiring the certificates and liens in the first instance.

(c) By the provisions of section 4 of the act it is stipulated that the improvement bonds issued under the provisions of the act shall never be reckoned in determining charter, constitutional, or statutory limitations imposed upon such city restricting its power to issue bonds for any purpose. It is also provided in this section that the issuance of such bonds shall not constitute the incurring or creating of any indebtedness as contemplated by sections 5 and 7 of article 11 of the Constitution of Texas. This section contains other provisions not necessary to mention here.

(d) By the provisions of section 5 of the act certain duties are imposed upon the city. We deem it expedient to copy in full subdivisions (a) and (b) of such section. These subdivisions read as follows:

"(a) In event there shall not be funds on hand, realized from the collection of said assessment certificates and interest thereon, sufficient to pay the principal and/or interest of said special improvement bonds, or any of them, as and when the principal and/or interest of said special improvement bonds matures and accrues, it shall then be the duty of such city to deposit in said pledged or impounded fund an amount sufficient to make good the deficit, said deposit to be made out of any money then under control of the city, which may lawfully be used at that time for said purpose; and

"(b) In event such city does not in such eventuality have money...