The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1883-07-19

law.
The second question, as to the legal
authority of the city council to re-
lease the city from the control of the
amended charter by organizing the
city government under the pro-
visions of the revised statutes, may
be stated affirmatively thus: That if
the legislature has authority und1r
the constitution to charter city con-
tanning more than 10000 inhabitants
by special law, and also has authority
to pass a general law, under which
such a. city may incorporate itself,
and has passed such general law, but
has subsequently granted charter to
such city by special law, such Spe-
cial law repeats the general law as to
such city, and the special law or char
ter is as binding upon the city until
changed or repealed, as any law is
binding upon people which repeats
prior law; and the general law no
longer being in force as to the city Of
Austin, no authority exists here to
repeal the charter granted by the
legislature by taking the action under
this general law, which cities were
authorized to take as to charters
which bound them at the date of the
enactment of the general law. The
language of the statute is that cities
''may accept the provisions of this
title in lieu of any existing charter"
The statute has no application to the
repeal by the city of special
charter that might be passed by the
legislature after the general law of
1879 had taken effect. If that had
been attempted the portion of the
statute which so enacted would have
been as much repealed6y the subse-
quent charter and special law in con-
flict with it as would any other por-
ton of the general law have been re-
pealed by the enactment of such
special law. One legislature can not
bind another to any mode of repeal.
Kellogg VS.. Oshkosh, IA Wis, 623; AL
bert VS.. Prichart & Rutherford, Har-
rison, 274.
This view is supported by abundant
authority, consisting in the writings
of our most eminent law writers and
the decisions of our supreme court
and court of appeals, and the supreme
courts of many other states i'll the
Union. See State VS.. Jones, Is Tex,
879; Davis VS.. state, court of appeals,
425.
Judge Cooley says: "The charter,
however, may expressly or by neces-
sary implication exclude the general
laws of the state on any subject"
Cooley, Constitutional
Limitations, 1893. See also Sedgwick
on Statute and Constitutional Law,
100; Mimi, 166; 30 N. Y, 218; 20 Ia,
AS.
Another consideration supports
this construction. 1t will not be pre-
tended that the legislature could di-
vest itself of the authority to charter
such cities by special law by the pas
sage of any general law for incor-
porating such cities. The authority
to charter by special law would still
exist. 1t is well settled principle of
law that it is not necessary to obtain
the consent of the city in order to
make a charter granted by the legis-
lature binding upon the city in fixing
its statutes and regulating it's action
as a corporation. Dillon on NUM-
cipal corporations, sec. %; Blessing
VS.. city of Galveston, AZ Tex, $780,
Hence, as the legislature will stand
clothed with the unquestioned au-
thority to pass special act at;any time
granting, changing, amending or
abolishing Austin's charter, if the
passage of special charter did not
repeal the general laws as to Austin,
and the authoritywould continue to ex-
istin the city to incorporate under the
general incorporation law, the action
of the legislature and the action of
the city council might be continually
coming in conflict. The legislature
might to-day adopt a charter for the
city of Austin by enacting a special
law, and their action be repudiated
by the city tomorrow through Or
ganizing under the general incorpora-
ton law. Then in turH, the legisla-
ture might pass new charter which
would supercede the organization
just had under the general law, only
to be superseded itself as soon as the
city could act in so doing.
Hence if it should be held that the
special law granting an amended
arter to the city Of Austin did not
repeal the general law as to Austin,
such construction would force the
legislature to repeal the general law
entirely, and thereby deprive those
cities belonging to the class which
can be chartered alone by general law,
from the benefits of such law in or
der to control the obstreperous city
of Austin with a special charter.
Such a construction is indefensible
AS is said in the case of the state VS..
Jones, IL Tex. Reports, p. 879: mo
two independent bodies can exercise
unlimited authority or control over
the same subject matter, at the same
time, without giving rise to conflicts
and collisions which the law never
intended and which the people would
never tolerate"
Hence conclude that the amended
charter is binding upon the city, and
that she cannot release herself from
its control by organizing the city gov
eminent under the general law as laid
down in the revised statutes:
l. Because such law never had any
force as to cities and towns contain
ing more than 10000 inhabitants be-
cause contrary to the constitution;
and
2. Because if it was ever of any force
as to such cities that it was repealed
as to the city of Austin by the special
law of the last legislature making an
amended charter for Austin, and can
not, therefore, be acted on now by
Austin any more than if it had never
been law.
This is a matter of no small import
ance to the people of Austin, if the
city council undertake to act under
the general law and reject the char
ter. 1t will involve question as to
the legality of the important author
ity which may be exercised by the
city, among which may be men
toned the power to arrest and punish
men for offenses, to levy and collect
taxes, etc.
/ claim no superior legal Judgment,
and do not offer my opinion for the
guidance of the city council. l have
discussed the subject for the purpose
of calling attention to view of the
question which seemed to have been
overlooked in the general discussions,
in the hope of eliciting other opinions
that may throw more light on the sub
ject and assist in arriving at a correct
construction of the law applicable to
the question. Very respectfully sub
mitted, F. g. MORRIS.
Supervision for Women.
baltimore HERALD
Hon. John L. Thomas, in his adj
dress at the commencement Of the
Eastern female high school. advo-
Gated the admission of women as trus-
tees of the public schools. The prin-
ciple is good one. A large majority
of the teachers in these schools are