City of Terrell v. Dissaint

• Decision Date: 16 November 1888
• Citation: 9 S.W. 593
• Parties: CITY OF TERRELL <I>v.</I> DISSAINT.
• Court: Texas Supreme Court

Page 593

9 S.W. 593

CITY OF TERRELLv.

DISSAINT.

Supreme Court of Texas.

November 16, 1888.

Appeal from district court, Kaufman county; ANSON RAINEY, Judge.

Action by L. C. Dissaint against the City of Terrell upon a promissory note. Plaintiff obtained judgment. Defendant appeals.

Terrell & Galbraith and Word & Charlton, for appellant. Stirman & Angel and Allen & Vesey, for appellee.

GAINES, J.

This suit was brought by appellee as indorsee of a promissory note, of which the following is a copy: "$1,000. Two years after date, the city of Terrell promises to pay to P. H. Layne, or order, one thousand dollars, for value received, with interest at 7 per cent. from date. This note is given in payment for material for water-works supplies, and is payable out of the tax of ¼ of one per cent. collected annually for general purposes." It is dated May 13, 1885, and is signed by the mayor and secretary pro tem. of the city. At the time of the execution of the note the city had "leased or sold" its water-works to the Texas Gas & Water Company, and the latter had control of the property for a considerable time. The management of the company not being satisfactory, it was agreed that its contract with the city should be rescinded, and that the city should resume the possession and management of the works. As a part of the contract of rescission, the city agreed to purchase of the company certain materials on hand for the extension of the works, and to pay therefor the sum of $2,000. For this sum the city issued warrants or drafts on its treasurer for about $500, and executed two promissory notes; one, that in controversy, and the other for $500, payable 12 months after date. Among other findings, the court found as a matter of fact that the note was given for current expenses, and as a matter of law, in effect, that it was created in accordance with law, and gave judgment accordingly. Section 5, art. 11, of our constitution provides that "no debt shall ever at any time 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 to create a sinking fund of at least two per cent. thereon." Section 7 of the same article contains this still more emphatic declaration: "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 to provide at least two per cent. as a sinking fund." In Corpus Christi v. Woessner, 58 Tex. 462, it was intimated that there might be a question whether the provisions quoted applied to cities other than such as have more than 10,000 inhabitants, but the determination of the point was not necessary to the decision of that case, and it was not decided. The question is presented in the case before us, and we are of opinion that they must be held to apply to all cities alike. It is true that section 5 relates mainly to cities having more than 10,000 inhabitants, and provides that they may be chartered by special acts of the legislature, and fixes the limits of their taxing power. Section 7 also relates in the first place to counties and cities upon the sea-coast, and authorizes them to levy and collect taxes for the construction of sea-walls, breakwaters, and sanitary purposes, and to create debts for these objects. But the provisions we have quoted contain no word or words which restrict their application to the cities previously mentioned in the same section. The language is general and unqualified, and we find nothing in the context to indicate that the framers of the constitution did not mean precisely what is said; that...