City of Del Rio v. Lowe

On Motion for Rehearing.

In appellees’ motion for rehearing, the contention that article 2368a, §§ 2, 3, and 4, article 1015, subds. 30 and 43, .and article 1175, subd. 11, were repealed by Acts of 1933, 43d Leg., Reg. Sess. p. 320, c. 122, articles 1111 to 1114c, inclusive, Vernon’s Ann.Civ.St., and specifically by section 6 of said act, article 1114b, Vernon’s Ann.Civ.St., is without merit, as there is no conflict between these statutes.

Appellees insist that the former opinion of this court is in conflict with the decision of the Commission of Appeals in Radford v. City of Cross Plains, 126 Tex. 153 , 86 S.W.2d 204 . In the case cited, the City of Cross Plains brought suit to cancel $67,000 of “revenue bonds” issued by it to construct improvements on its water and sewer systems. The bonds were issued in accordance with articles 1111, 1112, 1113, and 1114, except that same were not submitted to a vote of the qualified voters of the city, and the bonds “were to be paid solely from the revenues derived from the water and sewer systems of the city, and were to be secured by a mortgage upon said systems, and the income therefrom.” There was no attempt in that case to comply with article 2368a, §§ 2, 3, and 4, and no provision was made for the payment of the bonds by funds raised by taxation. It is therefore apparent that the validity of those bonds depended entirely upon a compliance' with articles 1111, 1112, 1113, and 1114, Which distinguishes that case from the case at bar in which there was a full compliance with article 2368a, §§ 2, 3, 4,. 7, and 8, except as to the $20,000 warrants issued without full compliance with the statute requiring publication of notice, but which warrants were upheld on the doctrine of estoppel.

Under article 1112, it is clear that the City of Cross Plains had no power to issue the “revenue bonds” without a vote of the qualified voters of the city, whereas in this case the City of Del Rio did have the power to issue the warrants and refunding bonds without such vote, under the provisions of article 2368a, §§ 2, 3, 4, 7, and 8, which further distinguishes this case from the Radford Case.

*1221 Appellees further contend that this court’s holding- that the doctrine of es-toppel is applicable to the $20,000 warrants is also in conflict with the Radford Case, supra. This contention is without merit. In that case, it is clear that there was a total lack of power on the part of the City of Cross Plains to issue the bonds without a vote of its qualified voters, of which fact everyone is placed on notice, whereas in this case the power of the City of Del Rio to issue the warrants, without a vote of the people thereon, existed, though there was an irregular or improper exercise of the power conferred. As applied to the doctrine of estoppel, the distinction between total lack of power and irregular or improper exercise of power conferred, as stated in our former opinion, renders Radford v. City of Cross Plains, supra, inapplicable to the facts of this case.

The motion for rehearing is overruled.

SLATTON, J., being disqualified, did not participate in the decision of this cause, Special Associate Justice CLAUDE V. BIRKHEAD sitting in his stead.