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

city consented to the extension OF her
bonded debt in the sum Oi 81 ,4OO,UOO OF
bonds, and in olatiOn OF the pro-
vision of said ordinance of Oct. 3,
1890, for which reason said pretended
sale is void"
The power of the city 10 issue the
bonds in question flows from the au-
thority conferred upon the taxpayers
of the city by virtue of the second
sui division OF the amended charter
quoted aud can only be exercised after
obtaining the consent of two-thirds OF
the qualified voters, Taxpayers OF the
city.
The power when thus exercised by
consent of the people, becomes
contract between the city as q munich
pality and its citizens, aud its govern
ing bodies have no authority to
change it, in essential features, to the
injury of the city aud its tax payers.
The allegations in the section of the
petition just quoted are to the effect
that the ordinance submitting the
proposition TO the people, asking for
the power of the city to issue bonds
and the subsequent ordinance stating
under what conditions the bonds
should be issu I'd, constitute in effect
one transaction, and both taken to-
gether evidence the effect and scope
of the contract. 1t states that the two
ordinances were promulgated at the
same time and that the voters under
stood that the bonds should be sold at
not less than par. The law does not
deny the right of the city council to
impose certain conditions relative to
1.-THE issuance and sale of the city
bonds, and when this right Is exer-
cised by the council before the propo-
sition to issue the bonds has been act
cd on by the people and in such way
as makes it a part of the contract of
issuance and the terms and conditions
under which they shall be disposed
of, and the Taxpayers so understand
ing, exercise their privilege in favor
of the issuance of the bonds, it seems
to us that this is sufficient to make all
the essential terms and conditions of
the bonds part of the contract under
which they were issued, and if such
be the case, the council have not the
power to change the terms in some es-
sential particulars by q subsequent
ordinance to that effect. If it was a
part of the contract that the bonds
SAOulu 10 SUN CIV EdlJ ~ CdhbOC 10
reasonably contended that sale for
less would not be a violation
of the contract in material respect.
If such was not the rule,
the council would have as much
right in one case to increase the
amount of the bonds or increase the
rate of interest and thereby increase
the liability of the taxpayer ss 1t
would to make change in the con-
tract in any other material respect.
The property of the taxpayer to the
extent taxed is liable for the full face
value of the bonds authorized by the
vote, whether that sum is realized or
nett 1t is a mai tel of moment and in
terest to him to see that the bonds are
realized upon acc, riding to the con-
tract under which they were issued,
and If they sold for less than the
amount agreed upon it is in legal eff
feet diversion and appropriation by
the council of public funds and prop
erty to uses not authorized. In such
cases the authorities previously quoted
admit that the taxpayer has such an
interest in the public funds as would
authorize him to prevent them from
being diverted and applied to an ille-
gal use.
We do not intend to hold that the
council would not have the power by
ordinance to affect the issuance and
disposition of the bonds in matters
purely of detail. For this they could
do. But we deny the power to change
he contract under which they were
issued in any material manner that
would affect the interests of the tax
payer
But if this be true it does not affect
the right of the city council to issue
the bonds, but it must be done in ac-
cord with the terms of the contract
under which they were authorized.
The extent of appellants remedy in
that respect would be to prevent the
city from dieposing of the bonds tor
less than their par value, if the aver
ments of the petition state the true
facts.
AS to those bonds that have
been issued and disposed of,
we do not at this time undertake to
decide, under the pleadings in the
case, what remedy exists.
Our discussion of the question pre-
sented in this count, as OF other ques-
tions presented in the several counts
of the petition, is based solely upon
the averments of the petition. And
if, as fact, the people did not at the
time of the vote authorizing theissu-
ance of the bonds require them to be
sold at par as condition OF their is
suance, or such condition was not by
the terms of the ordinance submitting
the question to them, presented in
such a wsy a. to become part OF the
contract under which the bonds
shou Id be issued, then the fact that
they were to be SOLD at par would not
be u part of the contract under which
they were issued and they could be
disposed of by the council for less
than their face value, if fairly done.
The twelfth count of the petition
reads:
"ADd your petitioner further repre-
sents that in the latter part of the
year 1889 certain persons conceived
the idea of making the said city of
Austin great and populous CONNER
cial and manufacturing center, by
means of the construction of dam