The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1893-01-19

featuring purposes Tor prOtt, OF the es-
timated commercial value OF $20O, OOO
to the city; that all proceedings sue.
sequently had, as herein shown, were
to carry out the scheme suggested by
said report, which Was taken by said
. council as basis of su bsequent action
by the said city council, which report
is made part hereof, that the said
city not having authority to engage
In the private business of damming
the Colorado river, to secure vast
water power to he operated, rented or
leased for profit, for manufacturing
purposes aud tOinduce population and
capital 20 come to the said city, the
said mayor and city council, aided
and assisted by the other defendants,
under color OF the authority vested in
said city by its charter, attempted by
the several proceedings hereinbef
shown, to have the said city under
take the said unlawful enterprise
under the false and fraudulent pre-
tense or merely constructing aud oper-
ating water and light systems as au.
thorized by the aforesaid charter"
The power of taxation is only lodge
in the city for public purposes. 1t has
no authority to engage in business
enterprises that are private in charac-
ter and not for public use permitted
by us charter. IL Is to the charter
created by law that the city looks for
its power to act, and create debt
chargeahle again t the municipality
payable by tai es collected from its
citizens. If the main purpose OF the
city is to engage in the unlawful
enterprise, it cannot give the illegal
act lite by naming it for purpose
that is lawful, and Disgusting the true
purpose under the semblance of legal
authority. Declaring the exercise of
power In the given insta ce to be for
o purpose within its charter powers
does not add any validity TO the
illegal act. And the fact, showing
the true purpose may be disclosed by
q taxpayer whose property interest
may be affected by such illegal act.
For such act is not only ultra wires the
city charter, but is in law q fraud
upon the rights of the taxpayer. The
declarations made by the city council
through the ordinances authorizing
issuance of the bonds that the purpose
in building the dam was to furnish
the city with water and lights, al
though for an apparent ley al purpose,
is, according to the allegations of the
count of the petition quoted, for the
main purpose of furnishing the
city water power TO engage in
manufacturing enterprises, and
that furnishing the city with water
and lights is simply incidental to such
main purposes.
The city has no power to engage in
manufacturing enterprises ana to de-
vote the funds of the city to that puY-
pose. If this be the principal purpose
and object in erecting the dam and is
suing the bonds, the fact that there is
incidentally connected with such en-
terprise purpose that is lawful, will
not give any life and validity to the
Illegal purpose; but the whole trans
Notion is tainted with the vice OF the
forbidden object and is in its entirety
illegal. The courts will not endeavor
to separate the legal and illegal parts
of the transaction, for this won d be
impracticable and court OF equity
will not undertake it.
What is here said simply relates to
B original unlawful purpose in err
Getting the dam and issuing the bonds.
We do not desire to be understood as
that city has no power to
devote to uses for purposes not public
that portion of public structures and
buildings not necessary to be used for
public purposes. For If there be ali
excess for public use, the city can
reap benefit by renting it. The law
does not permit the city to engage in
enterprises and use the
it would permit the city, if there
should be an excess above that used
for public purposes, to derive a
revenue by renting it. The difference
between the two cases results from
the fact that in one the original pur-
pose aud object were Illegal, and in
the other the purpose lawful. This
makes q difference as broad as exists
In any case between right and wrong.
In the particulars discussed, the
averments Of the petition are stated
with sutfi ,ient certainty, and state
cause of action emitting appellant to
relief, II the facts are as alleged. In
this respect the court erred in sus-
tanning the demurrer, and for this
reason we reverse the Judgment and
the cause,
In reply to the question last dis
cEssed by the court, the appellees
contend that it is ia effect an enquiry
into the motives of the city council in
passing the ordinances in question
and that such enquiry is not permit
ted to the TAX payer.
The exerc' So OF tho discretion by the
city council to judge OF the necessity,
cost, manner and plan Of construction
of public works authorized by the city
tharter cannot be controlled by the
courts unless in case of fraud that in
some way injuriously affects the right
Of the tax payer or the public.
Neither have the courts the power to
probe into the motives OF the council
in the exercise of it's Legislative fnhc-
lions But, in the performance OF acts
growing out of the exercise of power,
Il is permissl BILE for the courts to de-
whether the power exists in
the given case or whether the threat
sned act under the apparent exercise
Of lawful power be for purpose law
Ful or unlawful. 1t is not an attempt
10 control the motives of the council
in the performance of legislative fuuc.
ions, but is simply restraint imposed
a., ,,fa h tnp