Dwyer v. City of Brenham
| Decision Date | 23 February 1886 |
| Docket Number | Case No. 2113. |
| Citation | 65 Tex. 526 |
| Parties | THOS. DWYER v. CITY OF BRENHAM. |
| Court | Texas Supreme Court |
APPEAL from Washington. Tried below before the Hon. J. B. McFarland.
This suit was brought by Thomas Dwyer against the city of Brenham, on an express contract, to recover $23,752.52, for work and labor performed in printing and binding the ordinances of that city.
The petition alleged the incorporation of the defendant, but did not set forth its powers under its charter. The petition also alleged the terms of a contract by and between one W. P. Presley and the city of Brenham, whereby the former undertook and agreed to print and bind, in book form, for the latter, its ordinances; the performance of the stipulations of that contract, by Presley, on his part to be performed, its breach on the part of the defendant, and the subsequent transfer, for value, to plaintiff, of Presley's claim against the city, under the contract.
The defendant demurred to the petition, assigning as grounds:
1. That the alleged contract was ultra vires.
2. That the petition did not show that the city of Brenham had made, at the time the obligation sued on was created, provision, according to law, for its payment.
The city of Brenham was chartered by a public law, and its charter contains the following provision: “All ordinances of the city, when printed and published by authority of the city council, shall be admitted and received in all courts and in all places, without further proof.”
The court sustained the defendant's demurrer and dismissed the petition. Plaintiff appealed.
C. R. Breedlove, for appellant, cited: Dillon on Mun. Corp., secs. 55, 58, 371.R. S. Tarver, for appellee, on the questions discussed in the opinion, cited: City of Dallas v. Ross, 4 Tex. Law. Rev. 146; s. c. Willson's Civil Cases, sec. 279; City of Brenham v. Becker, W. & W. Cond. Rep., sec. 1244; Dillon on Mun. Corp., sec. 968; Const., art. 11, sec. 5; Charter of City of Brenham, art. 24, sec. 2.
As the city of Brenham is chartered by a public law, its corporate powers are known to the court and need not be pleaded. Section 1 of article 6 of the charter provides that “all ordinances of the city, when printed,” &c., shall be admitted in evidence without proof. This section contemplates the printing of the ordinances.
The charter does not intend that the city shall own a printing establishment, and the legislature never expected the printing to be done without...
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