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

lie Oltf JIM toEs
Editor Statesman:
Noticing the discussions and opln-
ons published in your paper as to the
policy of the city councils proposed
rejection of the amen imentS to the
city charter, passed at the last session
Of the legislature, by attempting to
incorporate and organize the city
under the general NUM-
cipal incorporation law, it occurs to
the writer that it would be proper and
pertinent to first inquire whether or
not there is any legal authority for
this proposed action of the city coun-
Gil. # the privilege of your columns
be allowed me, 1 will discuss from a
legal standpoint as briefly as possible,
consistent with a clear presentation
of the subject of the question: Has
the city authorities lawful power, I'M
der the constitution and laws of the
state to incorporate and Or
ganize the city government I'M
der the general law for incorporating
and organizing cities and towns con-
tanned in title II, of the revised stat
utes of Texas, and thereby release the
city from the control and authority OF
the amended charter, passed for its
government by the legislature?
This question may be considered
first with reference to the power to
incorporate a city or town having
more than ten thousand inhabitants
in any other mode than by a special
law, and secondly with reference to
the effect of the special law amending
the city charter of Austin, passed by
by the legislature since the adoption
of the revised statutes, on the power
of the city to avail itself of the pro-
visions of the revised statutes.
We will now consider the sub-ques-
ton first stated, viz: Can city con-
tanning over 10000 inhabitants, as
Austin does contain, be incorporated
by a general law, or can such a city
be incorporated only by special law
\ correct solution of this question
depends upon proper construction
of several articles of the constitution
in connection with the provisions of
title II of the revised statutes.
Article $40 of the revised statutes
provides as follows, among other pro
visions:
"Any city within the limits of this
state containing 1000 inhabitants, or
over, may accept the provisions of
this title in lieu of any existing char
ter, by a two-thirds vote of the city
council of such city," etc.
If there were no constitutional pro-
visions regulating the manner in
which cities may be incorporated
there could be no doubt but what the
foregoing article would be complete
authority for organizing any city of
1000 inhabitants, or over, under the
general law; for the legislature, with
out any express authority being con-
ferred upon it by the constitution,
would have the authority to create
local municipal corporations either
by general or special law as an essen
tial incident of and Inherent in the
grant OF legislative power under our
social organization and republican
system of government. blessing VS..
city of Galveston, AZ Tex, $50; Pleas
ant VS.. Beckwith, 100 U. S., 514,). But
when there are constitutional provi-
sions regulating the mode of incor-
porat1ng municipal interpretations,
the constitution must control, and no
law attempting a different mode of
Incorporating such cities can have any
force.
Hence it will be necessary to exam
inc the several provisions of our con-
stitution on this subject in order to
determine whether or not the general
law, providing for incorporating
cities and towns under its provisions,
without any charter being granted
by special act of the legislature, is
not unconstitutional and void in so
far as it seeks to authorize the incor-
poration of cities and towns contain
ing more than 10000 inhabitants I'M
der the provisions of such general
law.
The provisions of our state consti-
tuition on this subject, in so far as
they relate to the mode of creating
such corporations, are as follows:
Article 3, section Sc. The legisla-
ture shall not, except as otherwise
provided, pass any local or special
law authorizing incor-
porating cities, towns or villages, or
changing their charters. y 4 y
In all other cases where a general law
can be made applicable, no local or
special law shall be enacted
ARTICLE II, section 4. Cities and
towns having a population Of 10000
inhabitantants or less may be char
tered alone by general law" X 4
section 5. Cities having more than
10000 inhabitants may have their
charters granted or amended by
special act of the legislature" X
From a consideration of the fore
going provisions of the constitution
it is clear that the general purpose of
the makers of that instrument was
to prevent special legislation as far as
practicable, and to prohibit the in
corporation of cities and towns con-
tanning 10000 inhabitants or less, ex-
cept by general laws. But it is equal
ly clear that an exception was made
in the case of cities and towns having
over 10000 inhabitants in favor of
having their charters granted or
by special law. If there
was any ambiguity in the expression
of this particular intent as to that
class of cities; and it was in conflict
with the general intent to be gathered
from the whole instrument, in con-
STRUNG the instrument the general
intent would prevail But effect
must be given to a particular intent
plainly expressed in one part of con-
stitution, though apparently opposed
other parts. (Warren VS.. Sherman,
5 Texas, Al; Cooly's Constitutional
Limitations, page 5S)
Then, since it is clear that chartering
cities and towns of more than 10000
is authorized to be done
by special law, does this authority
given the legislature to incorporate
that class of cities by this particular
mode limit the power of the legisla-
ture to this mode of incorporating
such cities and amending their char
ters? Or may the legislature also au-
thorize the incorporation of such cities
by general incorporation law? A
proper construction of this provision,
guided by the legal rules of construc-
ton, will certainly establish the cor
rectness of the first proposition, viz,
that the express authority given to
charter by a particular mode excludes
the authority to charter in any other
upon the power of the legislature to
charter or incorporate by any other
mode. This is none the less true be-
cause the language of the constitu-
tion is that such cities may have their
charters granted or amended by spe-
cial act of the legislature without con-
tanning any express words negativing
the authority to do so in any other
A negative as often exists
as by express words.
The word "may" is used so as to leave
It optional with the legislature as to
they would incorporate such