City of Galveston v. Mann

• Citation: 143 S.W.2d 1028
• Decision Date: 23 October 1940
• Docket Number: Motion No. 14664.
• Parties: CITY OF GALVESTON v. MANN, Atty. Gen.
• Court: Supreme Court of Texas

Page 1028

143 S.W.2d 1028

CITY OF GALVESTON v. MANN, Atty. Gen.

Motion No. 14664.

Supreme Court of Texas.

October 23, 1940.

Original mandamus proceeding by the City of Galveston against Gerald C. Mann, Attorney General, to compel the Attorney General to approve two series of bonds of the city.

Mandamus denied.

Bryan F. Williams, City Atty., of Galveston, for relator.

Gerald C. Mann, Atty. Gen., and Clarence E. Crowe, Jr., Claud O. Boothman, and Geo. W. Barcus, Asst. Attys. Gen., for respondent.

MOORE, Chief Justice.

This is an original proceeding by the City of Galveston, as relator, against Gerald C. Mann, Attorney General, as respondent, in which it prays that a writ of mandamus issue requiring the Attorney General to approve two series of bonds of relator, one in the total amount of three hundred thousand dollars, which are to be general obligations of the City, payable from proceeds of taxes to be levied by the City, and the other in the total amount of one million dollars, to be payable solely from the income and revenues arising from the operation of properties which relator proposes to construct with their proceeds. The Attorney General has refused to approve these bonds upon grounds that will hereinafter be stated.

By agreement, this proceeding has been heard upon relator's motion to file petition for the writ of mandamus and upon the merits, and it has been submitted upon oral arguments and briefs by both parties.

It is alleged in relator's petition for mandamus that the territory of the City embraces the eastern end of Galveston Island, with a frontage upon the Gulf of Mexico along which there exists a seawall with a wide, paved boulevard adjacent thereto upon the inland side of the seawall, and that the beach and waters of the Gulf of Mexico are upon the outer side; that because of its location upon the shores of the Gulf, the City is highly attractive to tourists who, to the extent of many thousands, visit it annually and particularly during the summer months, seeking rest, amusements, and diversions offered by a seashore resort; that there are not available to relator desirable or suitably located tracts of upland along the beaches and adjacent to the waters of the Gulf upon which it is reasonably practicable for relator to locate and maintain a park or place containing facilities to afford fishing and other sports for the large number of its visitors, as well as its own inhabitants, but that such facilities may be adequately and attractively provided "by constructing them upon a suitable pier or elevated structure extending from the shore into and over the waters of the Gulf of Mexico which, in addition to providing in the best manner, places for rest, comfort, diversions and amusements and other sports for the public, will provide a place for fishing in the deeper waters of the Gulf in a manner superior to any other which could be reasonably employed to afford opportunities for such sport to the members of the public desiring to engage in the same."

Relator states that in seeking to provide such facilities, the City has entered into a tentative agreement with the Reconstruction Finance Corporation, whereby that corporation has agreed to loan one million dollars for the construction of such improvements against revenue bonds of the City, but upon condition that the City supply from other sources any funds, not exceeding three hundred thousand dollars, which may be necessary to defray any cost of constructing and equipping the facilities in excess of the one million dollars.

It is provided between the City and the Finance Corporation that these bonds shall be "additionally secured by a Deed of Trust, constituting a first mortgage upon the real estate, fixtures and chattel property of the Facilities." The granting clause of this proposed deed of trust describes the properties to be mortgaged, as follows: "The certain tract or parcel of land in the City of Galveston, County of Galveston, Texas, bordering upon the Gulf of Mexico and lying south of the southerly boundary of the Galveston County Seawall right-of-way, between two lines extending into the waters of the Gulf of Mexico parallel with the extensions of the east and west lines of Twenty-Fifth Street, sometimes known as Rosenberg Avenue, one of such lines beginning at a point on the southerly or shoreward boundary of the Galveston County Seawall right-of-way, three hundred and forty (340) feet east of the intersection of an extension of the east line of said Twenty-Fifth Street with such boundary of such right-of-way, and the other of such lines extending from a point on such boundary of such right-of-way, three hundred and forty (340) feet west of the intersection of an extension of the west line of said Twenty-Fifth Street with such boundary of such right-of-way, together with all and singular all riparian rights and privileges and all other rights and privileges in anywise incident or appurtenant to such land and to any part thereof, and all titles, easements, rights, privileges, permits and interest of any character in, to or upon any adjacent land, submerged land and waters acquired or hereafter acquired by the City of Galveston for use and occupancy in the erection, construction, maintenance and operation of the improvements hereinabove described and designated as the Facilities and further any and all improvements made and to be made upon the above described land and in, over or upon waters adjacent thereto by the City of Galveston constituting the Facilities, or used in connection therewith."

This indenture also contains provisions for the sale by the named trustee, or substitute trustee, of the properties upon the happening of any one or more events constituting defaults as therein defined, and that upon any such sale the trustee shall execute and deliver to the purchaser a conveyance of the properties so sold, and that the purchaser thereunder shall have and is granted by the City a franchise to operate such facilities for a period of twenty years.

Both the series of bonds in the amounts above stated have been authorized by the action of the City Council and by the vote of the qualified voters of the City. No question is raised as to the regularity of these proceedings by the Attorney General.

The Attorney General bases his objections to the issuance of these bonds on the ground that it appears that the entire proceeds of both these issues are to be used in the erection of a pier out into the Gulf of Mexico, and that no portion of such improvements will be on land owned by the City of Galveston or of which it has control; but to the contrary, the land on which the City proposes to erect such improvements is submerged land in the Gulf of Mexico which belongs to the State of Texas, and that relator has no power "to mortgage any portion of the Gulf of Mexico to secure the bond indenture."

The relator and the respondent have filed what is called an "Agreed State of Facts," which simplifies to some extent the fact questions involved in this proceeding, and which is here quoted in full, viz.:

"The parties agree that the seawall at the place where the pier will be built at Galveston is built approximately 500 feet from what was some twenty years ago the high tide of the Gulf of Mexico; that after the seawall was built, about 1905, the high tide of the Gulf about twenty years ago came up to said seawall and constantly since said time all of the land lying on the Gulf side of the seawall at the place where the pier is intended to be built has been within the high tide waters of the Gulf.

"The County of Galveston has lying immediately adjacent to and on the outer side of the seawall a strip of land approximately ninety (90) feet wide which it acquired as a right-of-way for said seawall; that about 594 feet from said 90 feet and to the seaward thereof the property was originally above the high tide of the Gulf; that the City of Galveston expects to obtain the right-of-way or permission from Galveston County and from the parties who formerly owned the land that was above the original high tide either by purchase or by gift for the purpose of constructing said proposed pier.

"That the proposed pier to be built will extend from the land acquired or to be acquired by relator approximately 500 or 600 feet into the Gulf of Mexico beyond what was originally the high tide and the funds received from the sale of the bonds will be used to build the entire pier as one unit and said pier will be, when completed, approximately 1200 feet in length and extend to the deep water in the Gulf of Mexico and with the exception of the fishing platform at the end thereon will be about 27 feet above the surface of the water. That the fishing platform will be at the extreme end of Pier out in the Gulf and will be about 310 feet long and about 40 feet wide and about ____ feet above the surface of the water."

Relator in his written reply to the answer of the Attorney General, while not disputing the State's ownership of the bed of the ocean at the applicable place, nevertheless contends that it does not follow that the City in the event it becomes the owner of the land adjacent to the ocean bed, now owned by the State, cannot, as appurtenant to its littoral or riparian rights, when thus acquired, "build its pier out into and over the ocean bed and waters in front of its land."

Following the last quoted statement, relator says:

"By amendment to relator's petition it is shown that there is land over which approximately one-half the pier will be built which though now submerged has been in the past upland, not submerged and under private ownership of owners claiming under valid grant. And it is further shown that relator intends to acquire ownership of that land, or in the case of the seawall right-of-way to use and occupancy, and establish a park thereon and build its pier for approximately one-half its length over and upon the same with the...