Noel v. City of San Antonio

• Decision Date: 13 November 1895
• Citation: 33 S.W. 263
• Parties: NOEL v. CITY OF SAN ANTONIO.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

33 S.W. 263

NOEL v. CITY OF SAN ANTONIO.¹

Court of Civil Appeals of Texas.

November 13, 1895.

Appeal from district court, Bexar county; R. B. Green, Judge.

Action by Henry M. Noel against the city of San Antonio on a contract for the construction of certain improvements. Defendant had judgment, and plaintiff appeals. Affirmed.

Chas. W. Ogden and Clark, Summerlin & Fuller, for appellant. R. B. Minor, for appellee.

FLY, J.

On November 21, 1893, appellant filed this suit, seeking to recover of the city of San Antonio the sum of $13,000. The basis of the suit was a contract entered into between one W. H. Garretson and appellee for the construction of two furnaces to be used for the destruction of city garbage. It was alleged that the city agreed to pay for the furnaces the sum of $13,000, in 10 notes, each for $1,300, 1 payable annually for 10 years, each bearing 6 per cent. interest from date of acceptance of the furnaces. A full compliance with the terms of the contract was alleged on the part of Garretson; that the notes had been transferred to appellant on April 4, 1893,—being on the date of the execution of the contract, and before any work done on the furnaces. A failure to pay the debt was alleged. In a supplemental petition it was alleged that on the date of the contract the city of San Antonio had in its treasury $15,000, the amount of money arising from the sale of bonds theretofore made for the purpose of erecting two garbage furnaces, and that the 10 notes represented said garbage fund; that it had been set apart for said purpose; and that appellant had no interest in the question of the validity of the bonds, as the money was in the treasury when the contract was made. It was also alleged that the issuance of the bonds was authorized by the vote of the taxpayers, and that provision had been made to pay the interest on the same, and to create a sinking fund of 2 per cent. thereon. Appellee filed a general demurrer, special exceptions, and answer. The cause was tried before a jury, and a verdict instructed for appellee.

During the course of the trial, appellant attempted to introduce evidence of the adoption of a resolution on February 28, 1887, by the city council, setting forth that steps should be taken to erect garbage furnaces; of the authority given the mayor on March 18, 1887, to order a special election to obtain authority to issue $150,000 worth of 5 per cent. bonds, the proceeds to be used in erecting a city hall, courthouse, and jail, two garbage furnaces, rock crushers, street rollers, and street-sweeping machines; to show that the election took place on April 30, 1887, and resulted in authority being given for the issuance of the bonds; to show authority given for the printing, engraving, and sale of the bonds; and to show that the garbage fund was credited with $15,000, and that it still had to its credit a large part of the fund in March, 1889. The following is an excerpt from the minutes of the city council: "April 30, 1893. W. H. Garretson proposing to build two garbage furnaces for $13,000, and run same for 30 days, which was indorsed by Dr. Menger and committee on health and sanitation. The motion of Alderman Elmendorf that it be accepted, and the mayor authorized to enter into contract for same, was adopted by unanimous vote." The contract on which the suit was based, ordinances providing for taxes to pay the interest and create a sinking fund on the bonded debt of the city for the years from 1887 to 1893, inclusive, and an ordinance permitting the aldermen, in certain contingencies, to elect one of their number mayor pro tempore, were also offered in evidence. The whole of the testimony was objected to for the following reasons, to wit: "(1) Because there is no proof that any provision was made, at the time the alleged contract between the city and Garretson was entered into, for the levying of a tax to provide a sinking fund for, and to pay the interest on, the debt alleged to have been created by the making of said alleged contract, as is required by the constitution of the state. (2) This contract appears on its face to have been, subsequent to its execution and delivery, altered, in that the stipulation as to the capacity of the furnaces is changed, or the cost of the same changed, from the original amount of $5,000 for one crematory furnace to $13,000 for two crematory furnaces, and also altering the stipulation as to the time in which a given quantity of garbage should be cremated, namely, from twelve hours to twenty-four hours for the same quantity of garbage; and, if not changed in that regard, it is in that respect so contradictory as to be void for uncertainty. (3) Because there is no proof of authority from the city council of the city of San Antonio to the mayor, or acting mayor, who is stated to have executed this contract, for the making of the same, because the pretended authority of the city council is shown to have been given by motion, whereas it is required by the charter that the power of the council in this matter should be exercised by ordinance. (4) Because there is no proof that at the time of the issuance, or at the time of the sale, of the bonds issued for the purpose of constructing the garbage furnaces, any provision was made for the levying of a tax to provide a sinking fund for and pay the interest on the debt created by the issuance or sale of said bonds." The court overruled all the objections but the third, which was sustained; and, appellant declining to proceed further, a verdict was instructed for appellee. The only testimony introduced, or which was attempted to be introduced, besides that enumerated, was that of W. H. Garretson, who swore that he was the man with whom the contract was made, and that the interlineations of which complaint was made in the objections to the rejected testimony were made before the contract was signed. There was no evidence that the furnaces were ever completed as contracted for. We quote the following from the contract that was rejected as testimony: "And the party of the second part agrees, in consideration of the faithful performance herein made by said party of the first part, and upon the satisfactory test of said furnace as hereinbefore provided, to pay for the said furnace the sum of ($13,000.00) thirteen thousand dollars, payable as follows: In ten notes, payable annually, for the amount of ($1,300.00) thirteen hundred dollars each, bearing six per cent. interest from acceptance, payable at San Antonio Nat. Bank. Interest payable annually."

The constitution (article 11, § 5) provides that "no debt shall ever 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 at least two per cent. thereon." It is further provided, in section 7, that "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 provide at least two per cent. as a sinking fund." While the first and last portions of section 7 refer...