Berlin Iron Bridge Co. v. City of San Antonio

62 F. 882, 1894 U.S. App. LEXIS 2930

Opinion

MAXEY, District Judge.

My conclusions upon the questions arising on demurrer are as follows:

1. The contract entered into between the plaintiff and defendant on the 12th day of ¡November, 1890, for the erection of the superstructure of a wrought-iron bridge across the San Antonio river, is invalid, as being in contravention of the plain provisions of the constitution. The contract price of the superstructure was $13,000, one-half to be paid on the delivery of the iron material at the site of the bridge on Crockett street, and the remainder on the completion and acceptance of the bridge, which was on the 23d day of June, 1892. At the time of the execution of the contract, no provision was made for the assessment and collection of a tax to pay the interest on the debt thus created, and provide a sinking fund, as required by the organic law. Section 5 of article 11 of the state constitution provides that:

“No debt shall ever at any time be created by any city, unless at the same time provision be made to assess and collect annually a sufficient sum to pay the interest thereon, and to create a sin King fund of at least 2 per cent, thereon.”

Section 7 of the same article contains the more emphatic declaration:

“But no debt for any purpose shall ever be incurred in any manner by any city or county, unless provision is made at the time of creating the same for levying and collecting a sufficient tax to pay the interest thereon, and to provide at least two per cent, as a sinking fund.”

It is said by Justice Gaines in City of Terrell v. Dessaint, 71 Tex. 773, 9 S. W. 593, that:

“The language, is general and unqualified, and we find nothing in the context to indicate that the framers of the constitution did not mean precisely what is said; that is, that no city should create any debt without providing, by taxation, for the payment of the sinking fund and interest.”

See, also, Biddle v. City of Terrell, 82 Tex. 335, 18 S. W. 691.

The same may be said of the case now before the court. But the plaintiff, by its counsel, insist|i that it was not necessary for the city to provide for the payment of interest and the creation of a sinking fund, in reference to the debt in question, because it is averred that bridge bonds had been sold by the city, and the proceeds thereof placed in the city treasury, to secure the erection of the bridge which the plaintiff contracted to build. It is true that section 43 of the charter of the city authorizes the city to borrow money on its credit, and issue bonds therefor, to an amount not to exceed $50,000, for street improvements, and it is further provided by said section as fqllows:

“That no debt shall be contracted, for the payment whereof such bonds are issued (except the side-walks bonds) until such bonds shall have been disposed of, and the proceeds thereof paid into the city treasury, and when any bonds are issued by the city, a fund shall be provided to pay the interest and two per cent, per annum on the principal as a sinking fund to redeem the bonds, which fund shall not be diverted or drawn for any other purpose, and the city treasurer shall honor no draft drawn on said fund except to pay the interest or to redeem the bonds for which it was provided; and for the payment of such loan to levy a special tax over and above the general tax allowed, by this act.”

Without considering the question whether the issuance of bonds denominated “bridge bonds,” would be a compliance with the charter provision authorizing the issuance of “street improvement bonds,” it is sufficient to say that by the imperative mandate of the constitution, which rises superior to all charter provisions, “no debt” shall be created by any city except in the manner therein indicated. The method of creating debts, pointed out by the constitution, should be followed; otherwise, the debts are invalid, and not enforceable against the municipality. Where the meaning of constitutional provisions is plain and obvious, it is the duty of courts to give effect, to such meaning, without placing upon the words used a forced construction, and one not intended by the framers of the instrument. I pon 1his point it is said by Justice Lamar in the case of Lake Co. v. Rollins, 130 U. S. 670, 671. 9 Sup. Ct. 651, that:

“Wo are unable to adopt tlio constructive interpolations ingeniously offered by counsel for defendant in error. Why not assume that the framers of the constitution, and the people who voted it Into existence!, meant exactly what it says? At the first glance, its reading produces no Impression of doubt as to the meaning. It seems all sufficiently plain, and In such cases there is a well-settled rule which we must observe. The object of construction, applied to a constitution, is to give effect to tlie intent of its framers, and of riit' people in adopting it. This intent is to he found in the instrument itself; and, when the text of a constitutional provision is not ambiguous, the courts, in giving construction thereto, are not at liberty to search for its meaning beyond the instrument. To get at the thought or meaning expressed in a statute, a contract, or a constitution, the first resort, in all cases, is ro the natural signification of the words, in the order of grammatical arrangement in which the framers of the instrument have placed them. If the words convey a definite meaning, which involves no absurdity, nor any contradiction of other parts of the instrument, then that meaning, apparent on the face of the instrument, must be accepted, and neither the courts nor the legislature have the right to add to it or take from it. Nowell v. People, 7 N. Y. 9, 97; Hills v. Chicago, 60 Ill. 86; Denn v. Reid, 10 Pet. 524; Leonard v. Wiseman, 31 Md. 201, 204; People v. Potter, 47 N. Y. 375; Cooley, Const. Lim. 57; Story. Const. par. 400; Beardstown v. Virginia, 76 Ill. 34. So, also, where a law is expressed in plain and unambiguous terms, whether those terms are general or limited, the legislature should ho intended to mean what they have plainly expressed, and consequently no room is left for construction. U. S. v. Fisher, 2 Cranch, 358, 399; Doggett v. Railroad Co., 99 U. S. 72. There is even stronger reason for adhering to this rule in the case of a constitution than in that of a statute, since the latter is passed by a deliberative body of small numbers, a large proportion of whose members are more or less conversant with the niceties of construction and discrimination, and fuller opportunity exists for attention and revision of such a character, while constitutions, although framed by conventions, are yet created by the votes of the- entire body of electors in a state, the most of whom are little disposed, even if they were able, to engage in such refinements. The simplest and most obvious interpretation of a constitution, if in itself sensible, is the most likely i.o be that, meant by the people in its adoption. Such considerations give weight to that line of remark of winch People v. Purdy, 2 Hill. 31, 36, affords an example. There, Bronson, «T., commenting upon the danger of departing from the import and meaning of the language used to express the intent, and hunting after probable meanings not clearly embraced in that language, says: ‘In this way the constitution is made to mean one thing by one man and something else by another, until In the end it Is in danger of being rendered a, mere dead letter, and that, too, where the language Is so plain and explicit that it is impossible to make it mean more than one thing unless we lose sight of the instrument itself, and roam at large in the boundless fields of speculation.’ ”

Nor can the court concur with counsel in the position assumed that the debt created by the contract of the parties was a current expense of the city, payable out of the current revenues. I do not regard it as a debt of that character, and hence it does not come within the principle announced by the supreme court in the case of City of Corpus Christi v. Woessner, 58 Tex. 462. See Biddle v. City of Terrell, supra; City of Terrell v. Dessaint, supra; Bell v. Live Stock Co. (Tex.) 11 S. W. 344.

2. Counsel for the plaintiff further contends that if the express contract of the parties be held void the plaintiff should, nevertheless, be entitled to recover from the city the value of the bridge, as upon an implied contract. The court is unable to appreciate the force of this argument The provisions of the constitution above referred to apply equally to express and implied contracts. Whether the contract be of the one character or the other, the city must provide for the interest and sinking fund to meet the debt at maturity, in the manner indicated by the constitution. Whether the agreement between the parties be express or implied, it is nevertheless a contract, and the city is prohibited from creating a debt evidenced by such contract, unless the method pointed out by the constitution is pursued. See City of Bryan v. Page, 51 Tex. 532. In the case last cited, at page 535, it is said by the supreme court of this state (Justice Gould delivering the opinion) that “the law never implies an obligation to do that which it forbids the party to agree to do.” The pleadings in this case show that the plaintiff has constructed a bridge, which the defendant is now using and enjoying, and for which, upon principles of fair dealing, the plaintiff should be paid. But that aspect of the case cannot be considered by the court; and it may be here remarked, as was said by the supreme court in thp case of Buchanan v. Litchfield, 102 U. S. 293:

“Our attention is called by counsel to the exceeding hardship of this case upon those whose money, it is alleged, has supplied the city of Litchfield with a system of waterworks, the benefits of which are daily enjoyed by its inhabitants. The defense is characterized as fraudulent and dishonest. Waiving all considerations of the case in its moral aspects, it is only necessary to say that the settled principles of law cannot, with safety to the public, be disregarded in order to remedy the hardships of special cases.”

In accordance with the foregoing views, the general demurrer of the defendant, and its third, fourth, and sixth special exceptions, are sustained, and its first and second special exceptions are overruled. The defendant’s fifth special exception is also overruled, because it does not appear from the petition that plaintiff seeks to recover and remove the bridge. Looking to the answer of defendant, it presents no defense-to the suit, and without discussion the general demurrer and special exceptions of the plaintiff interposed to the answer will be sustained.

'Ordered accordingly.