City of Waco v. McCraw, 7073.

• Decision Date: 22 April 1936
• Docket Number: No. 7073.,7073.
• Citation: 93 S.W.2d 717
• Parties: CITY OF WACO v. McCRAW, Atty. Gen.
• Court: Texas Supreme Court

93 S.W.2d 717

CITY OF WACO v. McCRAW, Atty. Gen.

No. 7073.

Supreme Court of Texas.

April 22, 1936.

Original proceeding in mandamus by the City of Waco against William McCraw, Attorney General.

Mandamus issued.

Richey, Sheehy & Teeling, of Waco, for relator.

William McCraw, Atty. Gen., and Victor W. Bouldin and Effie Wilson Waldron, Asst. Attys. Gen., for respondent.

CRITZ, Justice.

This is an original mandamus proceeding instituted in this court by the city of Waco, Tex., against the Honorable William McCraw, Attorney General of Texas, to compel the approval of an issue of $41,000 of revenue bonds of such city. The case is submitted on an agreed statement of facts. Only law questions are involved. We shall not attempt to detail all the facts. It is sufficient to say that all proceedings relative to the issuance of these bonds were regular, and they are entitled to be approved, unless they are illegal for some of the reasons we shall discuss.

It appears that the city originally proposed to issue these bonds under article 2802e, Vernon's Annotated Civil Statutes of Texas (Acts 1933, 43d Leg. p. 330, c. 130, as amended by Acts 1934, 43d Leg., 2d Called Sess., p. 88, c. 36, § 1, Acts 1934, 43d Leg., 4th Called Sess., p. 44, c. 14, § 1, p. 76, c. 31, § 1; Acts 1935, 44th Leg., p. 127, c. 50, § 1). It further appears that this law expired by operation of its own terms at the close of December 31, 1935. These bonds had not been issued or presented for approval prior to such expiration date. It is thus evident that, if the above statute is the only authority for their issuance, they should not be approved.

It appears from the face of these bonds and pertinent orders of the city commission of the city of Waco that these bonds are proposed to be issued for the following purposes: "* * * To provide funds for the construction of a new stadium, including labor for dismantling and re-erecting an existing grandstand, foot-ball field, cinder running track, and incidental facilities. * * *"

It is the contention of the city that, even though, in the bonds themselves and pertinent orders pertaining thereto, it expressed an intention to act under the above-mentioned, now expired, statute, still these bonds are legal and authorized to be issued and aproved under the provisions of House Bill 110, chapter 453, p. 1741, Acts 2d Called Session, 44th Leg., effective November 14, 1935. The act in question, omitting the sections not pertinent here, reads as follows:

"Section 1. All cities and towns, including Home Rule cities, in the State of Texas, shall have power to build and purchase, to mortgage and encumber any of the hereinafter named project and/or projects, to wit: parks and/or swimming pools, golf courses, golf course club houses, ball parks, fairgrounds, exposition buildings, airports, and the land upon which the same are situated, either or all, and the income therefrom and everything pertaining thereto acquired or to be acquired and to evidence the obligation therefore by the issuance of bonds, notes or warrants, and to secure the payment of funds to purchase same or funds with which to construct and equip the same; and as additional security therefor, by the terms of such encumbrance, may grant to the purchaser under sale or foreclosure thereunder, a franchise to operate the projects herein enumerated and properties so purchased for a term of not over twenty (20) years after purchase, subject to all laws regulating same then in force. No such obligation of any such project and/or projects shall ever be a debt of said city or town, but solely a charge upon the properties of the project and/or projects so encumbered, and shall never be reckoned in determining the power of any such city or town to issue any bonds for any purpose authorized by law.

"Sec. 2. None of the projects named in Section 1 of this Act, nor the land upon which the same are situated, shall ever be sold until such sale is authorized by a majority vote of the qualified voters of such city or town; nor shall the same be encumbered for more than Five Thousand Dollars ($5000), except for purchase money, or funds with which to construct and equip the same or to refund any existing indebtedness lawfully created, until authorized in like manner. Such vote in either case shall be ascertained at an election, which election shall be held and notice thereof given as is provided in the case of the issuance of municipal bonds by such cities and towns, provided that no election shall be necessary for the encumbering of golf courses, golf course club houses, fairgrounds, airports and exposition buildings and the land upon which the same are situated, where encumbrances of any such project and/or projects has or have already been authorized at the time of the passage of this Act by a majority vote of the qualified voters at an election held for such purpose." Vernon's Ann.Civ. St. art. 1015c, §§ 1, 2.

"Sec. 5. The fact that the present law, authorizing the issuance of revenue supported securities by the cities and towns of Texas, does not include the projects included within this Act, and the fact that many cities in Texas desire to issue revenue supported securities for the purpose of constructing, equipping and extending such project and/or projects named in this Act and to borrow the necessary funds therefor from the Federal Emergency Administration of Public Works, and other Federal Agencies, and the further fact that the construction and extension of such project and/or projects will furnish an opportunity to labor for those citizens of the...