Davis v. City of Taylor

• Decision Date: 24 January 1934
• Docket Number: No. 6005.,6005.
• Citation: 67 S.W.2d 1033
• Parties: DAVIS et al. v. CITY OF TAYLOR et al.
• Court: Texas Supreme Court

Page 1033

67 S.W.2d 1033

DAVIS et al. v. CITY OF TAYLOR et al.

No. 6005.

Supreme Court of Texas.

January 24, 1934.

Error to Court of Civil Appeals of Third Supreme Judicial District.

Suit by W. F. Davis and others against the City of Taylor and others. Judgment for defendants was affirmed by the Court of Civil Appeals [Bland v. City of Taylor, 37 S.W.(2d) 291], and plaintiffs bring error.

Affirmed.

Allen & Wofford, of Taylor, for plaintiffs in error.

H. A. Melasky and S. I. Reinhardt, both of Taylor, for defendants in error.

PIERSON, Justice.

Plaintiffs in error, as taxpaying citizens of the city of Taylor, brought this suit in the district court of Williamson county against the city of Taylor and its officials, and sought to enjoin the latter from spending the funds of the city and from levying and collecting a tax authorized by the city charter and ordinances of said city, as disclosed by the charter amendment and ordinances set out below.

On January 8, 1929, the city of Taylor, which is a home rule city, adopted by a majority vote of its citizens an amendment to its charter, which reads as follows:

"The City Commission shall annually appropriate moneys from the general fund of the City to the aggregate amount of not more than Two (2) mills on each One Dollar valuation of the taxable property within the City in any one year for the following purposes:

"1. The establishment and maintenance of a Board of City Development, Chamber of Commerce, or other similar organization under whatsoever name, devoted to the growth, advertisement, development, improvement and increase of the taxable values of said city.

"The Board of City Development or other similar organization herein provided for shall consist of not less than fifteen (15) members to be appointed by the Chairman of the Board of Commissioners with the advice and consent of the City Commission, who shall hold office for two years from the date their appointment is confirmed by the City Commission and until their successors are appointed and confirmed. Provided, however, the first board appointed by the City Commission shall be the Board of Directors of the present Chamber of Commerce of the City of Taylor, who are in office at the time the City Commission makes such appointment under this provision, seven of whom shall be appointed for one year and eight for two years, and thereafter the City Commission shall appoint seven one year and eight the next to serve for a term of two years; and they shall be appointed from a list of persons, equal to twice the number to be selected, nominated by the then existing Board of City Development or other similar organization.

"The amount of money so appropriated each year by the City Commission shall be paid to the Board of City Development in twelve equal monthly installments."

On February 15, 1929, an ordinance was duly passed in substantial compliance with said amendment to the charter, and the purpose clause thereof reads as follows: "That there is hereby created and established the Board of City Development of the City of Taylor, Texas, whose duties and purposes shall be devoted to the growth, advertisement, development, improvement and increase of the taxable values of said city."

The ordinance appropriated $7,000 of the general fund of the city for the first year to be paid to the board of city development in ten equal installments, to be used in carrying on the work for which the board was created. Later a tax was levied as authorized by the charter amendment.

The plaintiffs in error in this suit sought to enjoin the levying and collecting of the aforesaid tax, and also to enjoin the further appropriation and payment of any of the funds of the city to said board of city development for the purposes stated in the charter amendment and ordinances above referred to. The district court denied the relief sought, and its judgment was affirmed by the Court of Civil Appeals. See opinion of the Court of Civil Appeals, Bland v. City of Taylor, 37 S.W.(2d) 291. Writ of error was granted by this court because of the importance of the question.

Plaintiffs in error challenge the right of the city of Taylor to authorize by its charter the creation of the board of city development and the appropriation of the city's funds for the purposes stated in the charter and ordinance.

A municipal corporation may exercise such powers, and only such powers, as are expressly granted to it in its charter, or such implied powers as are incident to the powers granted, or those essential and necessary to make effective the objects and purposes of the corporation. Dillon, Municipal Corporations (5th Ed.), vol. 1, § 237; 28 Cyc. p. 1533; 19 Ruling Case Law, p. 768, § 75; City of Brenham v. Brenham Water Co., 67 Tex. 542, 4 S. W. 143; Foster v. City of Waco, 113 Tex. at page 355, 255 S. W. 1104. Other authorities could be readily cited, but this principle is so well established that further citations are not necessary.

It is equally well settled that, if a power is granted to a city, the exercise thereof is within the discretion of the city, and partakes of a legislative nature. A court will not regulate the exercise of a power expressly granted, unless it is exercised in such a way as to be clearly abusive of the power and an evasion thereof. This rule is expressed as follows in 19 Ruling Case Law, at page 770: "When, however, power over a particular subject matter has been delegated to a municipal corporation by the legislature without any express limitations, the extent to which that power shall be exercised rests in the discretion of the municipal authorities, and as long as it is exercised in good faith and for a municipal purpose, the courts have no ground upon which to interfere."

And in Cyc. p. 1533: "But the courts cannot generally determine what municipal expenditures are necessary; if a given expenditure is within charter authorization, and therefore, abstractly considered, a legitimate municipal charge, the courts cannot pass upon the advisability or wisdom of its being incurred. That is a matter within the discretion of the municipal authorities, except, it may be, that abuse of the discretion would be controlled, or, if bad faith attended its exercise, the courts would intervene."

A city which operates under the home rule amendment is empowered to adopt or amend its charter in any manner which it may desire, consistent and in accord with the Constitution and general laws of this state.

Article 8, § 3, of the Constitution, provides: "Taxes shall be levied and collected by general laws and for public purposes only."

It is well settled that municipal corporations cannot impose taxes for other than public purposes.

The amendment to the charter of the city of Taylor set aside certain funds to be devoted to "the growth,...