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


and of the ordinance under which
they wele issued, and asks that
others lie prevented from be-
ing issued and negotiated,
and that the work of constructing the
dam be enjoined, and that the col
hector be restrained from collecting
Nhe taxes complained of.
1t is alleged that appellant is an in
Militant and duly qualified voter and
TAI payer OF the city of ustin; that
he Swns within the territory OF said
citypersonal and real property and
subject to taxation, to the assessable
valuepf $125,000.
We have not stated all the aver.
ments q the petition that recite all
the grounds for relief asked, but have
stated enAngh to show, in our opinion,
that the appellant has such intert ct
in the mattSr as would entitle him to
the relief asked, if the averments of
the petition speak the truth.
The great Weight of authority is,
that the tax payer has such an inter-
est in the public\funds that he can in
woke the aid OF court of equity to pre-
vent an illegal appropriation aud dis
position of them. Equity also comes
TO his relief against Nthe enforcement
and execution of illegal contracts or
debts that create change in the way
of taxes against bis property. The
remedy also lies to prevent the levy
and collection of taxes hatare illegal.
The right of the tax payer 70 the rem
edy invok ed in this case Is folly illus
trated by the following authorities
which are in point on the subject.
| 4
The supreme court of the United
states, il the case of Cram pton VS..
Zabriskie, 10l U. s., 500, upon this
subject, says: zoe the right of resi-.
dent taxpayers to invoke the inter-
position of a court of equity to prevent
an illegal disposition OF the moneys of
the county, or the illegal creation OF q
debt which they in common with
other property holders of the county
may otherwise be compelled to pay,
there is at this day no serious ques-
ton. The right has been recognized
by state courts in numerous cases; and
from the nature of the powers exer-
cised by municipal corporations, the
great danger Ut their abuse and the
necessity OF prompt action to prevent
irreme liable injuries, it would seem
eminently proper for courts of equity
to interfere upon the application of
the taxpayers ofthe county to prevent
the contamination of wrong when
the officers of those corpora ions as.
sumo in excess of their powers to
create burdens upon property
holders"
The petition 10 this case is subdi-
vided into counts, and in discussing
several issues therein presented We
will only set out in full those counts of
the petition that we regard as stating
cause Of action, and that are well
pleaded; and will only in a general
way notice those averments that are
subject to the demurrer sustained by
the court below.
The tenth count of the petition is as
follows:
THAT on to-wit: April 8, 1892, the
said mayor and city council passed an
ordinance purporting to levy tax Of
IL IL cents on each 500 worth OF
property wi hin the limits of the city
OF Austin for the year 1892, to pay in
terest and sinking fund of the atore-
said water works and electric light
bonds of said city; also another ordi.
nance purporting TO repeal section 4 OF
the aforesaid bond ordinance re-
quiring that the said bonds be sol / ct
par; that the vote / favor of the
aforesaid bonds was induced mainly
by the representations made to the
voters of said city that none of the
said bonds should be sold at less than
par, but nevertheless, the said repeal
ing ordinance, as petitioner believes,
was assed illegally for the purpose
of disposing of the aforesaid $5O0,00O OF
bonds for 95 cents on the dollar in
stead of for par, and if the said bonds
were sold to the person to whom de-
livered the price paid or contracted to
be raid therefor was only 05 cents on
the dollar, instead of Tor par, which
was in v Olation of the ordinance re-
curing said bonds to be -old for par
and was fraud upon this plaintiff
and those similarly situated. That
section of said ordinance was not
legally repealed, and the pretended
repeal was'a fraud upon plaintiff; and
plaintiff further says that on April 3,
1890, said city council passed, and
said mayor approved, an ordinance
entitled, IAN ordinance to create a
board of public works of the city of
Austin, and to prescribe the powers
and duties thereof copy of which
ordinance is h reto attached as part
of this petition; that said ordinance
was 50 passed at an adjourned meet
ing held by said council on March 81,
1890, at which said election ordinance
was passed. that said ordinance
passed April 8, 1890, related to the
same general subject as did said cleo
ton ordinance, and petitioner is adj
vised constitutes part of said cleo
ton ordinance, and that SAID two ordi-
Dances should be construed tngetner
as one ordinance; that by said ordi.
nance of April 8, 1890, it was provided
that the bonds which might there
after be issued and sold under said
election ordinance should rot be sold
for less than their par value; that said
ordinance was promulgated and pub
lished by said city council along with
and at the same time as was said cleo
ton ordinance, which was done tor the
purpose 9, on the part of said council, to
induce voters at said election by
reason of the provision requiring said
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