Foster v. City of Waco, (No. 3362.)

• Decision Date: 21 November 1923
• Docket Number: (No. 3362.)
• Citation: 255 S.W. 1104
• Parties: FOSTER et al. v. CITY OF WACO et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Supreme Court

255 S.W. 1104

FOSTER et al. v. CITY OF WACO et al.^*

(No. 3362.)

Supreme Court of Texas.

November 21, 1923.

Certificate of Dissent from Court of Civil Appeals of Third Supreme Judicial District.

Suit by W. M. Foster and another against the City of Waco and another. From an order sustaining a general demurrer to petition of defendants, defendants appealed to Court of Civil Appeals, which affirmed the judgment. On a certificate of dissent to the Supreme Court. Reversed.

Scott & Ross, of Waco, for appellants.

W. H. Jenkins and E. C. Street, both of Waco, for appellees.

CURETON, C. J.

This suit was brought by W. M. Foster and the Early Foster company, a corporation, against the city of Waco, a municipal corporation, and D. R. Byrum. The petition alleged in substance that the city of Waco had entered into a contract with appellee Byrum, by which the city became the purchaser of 200 acres of land for cemetery purposes. It was alleged that the purchase price for the land was $50,000, $5,000 of which was paid in cash, and for the remaining $45,000 the city executed nine promissory negotiable notes for $5,000 each, payable to Byrum, bearing 6 per cent. per annum interest, dated January 1, 1918 — the first of which would mature January 1, 1919, and one of the others on the first day of each succeeding January up to and including January 1, 1927.

It was stated that the ordinance or resolution passed by the board of commissioners of the city authorizing the purchase of the property contained a provision to the effect that there should be levied upon all the taxable property within the city an amount sufficient to produce in each year the principal sum of one of the notes, and interest on all, until the last of the notes had been paid and discharged. It was further pleaded that as to whether or not the city should issue the notes referred to had never been submitted to the voters of the municipality, and therefore, on that account, the obligations were illegally issued, and the city had no right to collect taxes for the purpose of paying them. The petition likewise alleged that the appellants owned property within the city subject to taxation, and were entitled to restrain the enforcement of the contract referred to. Prayer was made for an injunction restraining the city and its officers from the collection of the taxes to pay the notes, and for a decree canceling the same. The trial court sustained a general demurrer to the petition, from which action appellants appealed to the Court of Civil Appeals for the Third district. A majority of that court held the city had authority to execute and deliver the notes without submitting that question to the qualified voters of the city, and affirmed the judgment; Associate Justice Jenkins dissenting. Pending action on the motion for new trial, the dissent has been certified to this court.

Since the city, by virtue of articles 227 and 271 of its charter, had express power to acquire cemeteries, the only question here involved is whether or not it had authority to purchase the land on the terms above stated.

It is not contended that the charter contained any express grant of power to execute the contract and notes in question. However, the insistence is here made, and the majority opinion of the Court of Civil Appeals holds, that the power to create the debt and execute the notes in question is necessarily implied as resulting from the power expressly conferred to establish cemeteries. This is based upon the familiar rule that whereever a power is given by statute, everything necessary to the making effectual or requisite to attain the end is implied. Kent's Commentaries (13th Ed.) vol. 1, p. 551 (464).

We recognize the rule, but it has no application here. Another rule, equally well recognized, applies to and controls this case, to wit, that where a power is granted, and the method of its exercise prescribed, the prescribed method excludes all others, and must be followed. The Citizens' Bank v. City of Terrell, 78 Tex. 450, 456, 14 S. W. 1003; Bryan v. Sundberg, 5 Tex. 418; see notes 1 Kent's Commentaries (13th Ed.) p. 556 (467); Blankenship v. City of Sherman, 33 Tex. Civ. App. 507, 76 S. W. 805 (writ refused); Lewis' Sutherland on Statutory Construction, vol. 2, §§ 572, 627, 628, 631; 36 Cyc. 112; Whiting v. Town of West Point, 15 L. R. A. 861.

The charter of the city of Waco expressly authorized its board of commissioners to create debts, payable other than out of current revenue, in two ways: First, under articles 202 et seq. of its charter, by the issuance of bonds upon a vote of the people, payable out of taxes levied for the purpose as provided for in the state Constitution; and second, by the creation of a deficit in a limited amount, payable out of the current revenue for the next succeeding year. The latter provision, contained in article 211 of the city charter, in effect declares that, in the event the revenues of the city for any one year should not be sufficient "to meet the legitimate expenditures," the board of commissioners may incur a deficit over and above the revenues to the extent of $50,000, and no more, the excess, if any, over that amount being "absolutely null and void."

The time and manner of paying the excess of "legitimate expenditures" over the revenue within the limits specified is...