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

OOunG 6i6V6u OF tno potltlOue Is
based upon Information and belief of
the petitioner as to the facts alleged.
1t is TOO indefinite.
Count twelve of the petition COM
plains that the city has Illegally con-
structed steam railroad running
from the city austin to the dam
This count is defective in
this: 1t does not appear from the
averments that the railroad is not
such road that is permitted by the
charter of the city. The charter au-
thorizes the city TO construct street
railways to points within or beyond
the city. 1t does not appear that
the construction and operation of this
road is prohibited by the charter.
The fourteenth count alleges that
petitioner is informed and believes
that the Colorado river is a navigable
stream and that the dam will Obstluct
navigation, and that for miles around
land owned by private parties will be
deluged and destroyed in value, re-
sulting in damage suits against the
CITY In vast sums that can Only be
paid by burdensome taxatiOnimposed
upon the plaintiff and others similar
ly situated. We think these allega.
tions are too indefinite and specula-
tive. nd 1t is not shown that the
plaintiff has such an interest in the
Colorado river as nayigable stream
as would entitle him to the relief
asked.
Count sixteen and the latter part of
that the city is amply sup
foh 1nv M
water works bya private corporation,
which is furnishing the city with
water under s contract to that effect,
and that there is no necessity for the
erection ofthe dam and a new system,
and that its power to further provide
the city with water is exhausted. The
multitorm wants and increased neces-
stiles of cities is the principal reason
for the rule that leaves to it's govern
ing bodies the right to determine
when these wants shall be supplied.
The necessity of the city for an in
creased system of water works is a
matter resting within the discretion of
it's council, and the exercise of that
discretion will not be controlled " hen
performed within the limits of the
charter powers, except in case of
fraud. The right to judge of the neces-
sity of an increase OF water system Is
not denied because the city may be
supplied with water But the right
is one of continuing nature that
may be in the wisdom of the city
council exercised whenever they fair
ly determine that the increased neces.
stiles of the public demand it.
The allegation of the petition does
not show an abuse of the discretion by
the authorities OF the city in this re-
spect.
1t is in effect averred in the seven
tenth count of the petition that the
tax of ST. IL IL cents on the 500 worth
of taxable property levied to provide
for the interest and sinking fund of
the bonds, is in excess of the taxing
power granted in the charter, and for
that reason the levy of the tax and
the bonds are void. The only provision
of the city charter Snat in express
terms cOnfers the p Iwer upon the city
to levy taxes is the first division
of section l, article 6, of the amended
city charter heretofore quoted. This
provision of the charter says that the
annual tax shall not exceed l per
eentum of the property taxable by law
within the city limits to be used
for current expenses and for the
general improvement of the city.
The contention of appellant is
correct, unless the power to tax il con-
fsrred upon the city by the second
sub division of the same section,
which has been set out in tull in this
opinion. This provides that the
council shall have power ito raise
money on The credit of the city for a
special and definite purpose by issu-
ing bonds O. the city or otherwise"
aud provides that the bonded debt of
the city, beyond $l25,0OO, can be ill.,
creased only by the consent of two
thirds of the qualified voters, tax
payers OF the city, voting at an cleo
ton for that purpose. 1t Is true the
power to tax is not expressly given by
that provision of the charter, but we
think it is necessarily implied by rea-
con of the grant of power EXPIRE ssly
conferred upon the city to create an
Indebtedness by Issuing bonds or
otherwise for special and indefinite
purpose. OF course the taxing power
can not be OK ercised beyond the con-
stitutional limitation upon it. The
first sub division of the charter quoted
relate, solely t., taxation for current
expenses and general Improvement of
the city. The fact that the Legislature,
in comforting upon the city the power
granted in the second subdivision of
the charter. to raise money by issuing
bonds or otherwise for definite and
special purpose, by consent of those
to be taxed. without any restriction as
to amount, are important facts show
ing that tie definite and special pur-
pose was not included within the
meaning of general improvements,
and that the tax ther efOr and for cur
rent expenses would not be sufficient
to provide payment for such amounts
as the city may require for such
special and definite purpose
We believe these facts were c0nsid-
cred by the legislature and Influenced
them in granting the power in the
provision of the charter in question,
and that the purpose was to permit
the power to tax to meet the obliga.
ton created for such special and def
mite purpose.
Holding as we do, that the power
to tax lie conferred by this provision OF
I h a nh a rtpr this ia sufficfent as q leUiS- |