On Rehearing. In the original opinion it was stated that
"This suit was brought by H. S. Wilder against the American Produce Company to recover title to and possession of a small parcel or strip of land in the City of Victoria, Victoria County, Texas." The land involved is not in the City of Victoria. The agreement of the parties on the trial was as follows:
"1. That the land in controversy in this cause of action is wholly within the original four-league grant by the State of Texas to the corporation of the town of Victoria, Victoria County, Texas.
"2. That the land in controversy at the present time is not within the corporate limits of the City of Victoria, Texas, and that the present corporation, the City of Victoria, succeeds to the title, if any, of all lands within the four-league grant not previously sold by it, but without the corporate limits of the City as reduced by the Act of 1879."
In the motion for rehearing it is urged that Section F, page 65, Charter and Ordinances, City of Victoria, Texas, as follows: "Ordinances authorizing contracts, appropriations or expenditures in excess of $1,000.00, or any lease or sale, under the city charter, shall be read in full at three regular meetings," is an ordinance of the City of Victoria, and not a charter provision. In passing on the motion for rehearing, we shall assume that this is correct, and that same is not a charter provision. Our confusion arose from the fact that it appears in the statement of facts denominated as a quotation from the Charter and Ordinances of the City of Victoria.
It is an axiomatic principle that in trespass to try title recovery by plaintiff is conditioned on a showing of title or the right to immediate possession.
If plaintiff has title, it was conveyed to him by the deed from the City of Victoria dated the 17th day of April, 1928. This deed purports to have been authorized by resolution of the City Council passed on the 15th day of April, 1928. It affirmatively appears that Section F of the City Ordinances was not complied with, in that same was passed on first reading. Now, if Section F was an ordinance, as we have assumed, we think that until repealed it was binding upon the City Council and on all parties claiming rights from and under the City. The ordinance was a self-imposed limitation. We take it that same could not be repealed save by an ordinance. It might be said that this ordinance has no application here, in that the quoted section relates only to ordinances, and this was by resolution. Assuming, for a moment, that the City had the power to convey land owned by it in pursuance of a resolution. Section 71 of the Charter provides: "No ordinance or resolution shall be passed finally on the date of its first reading, except in the case of public emergencies, and then only when requested by the Mayor in writing; provided, that no ordinance or resolution making a grant of any franchise or special privilege shall ever be passed as an emergency ordinance." Now this resolution, it is affirmatively shown, was passed on the date of its first reading. There is in the record no evidence of a public emergency.
There is an intrinsic distinction between action by a city through ordinance and resolution. A long line of cases draws this distinction. Briefly, it may be said that an ordinance is legislative action, and a resoluton is administrative in character. But the charter limitation here is the same as to each character of municipal legislation.
It seems to have been assumed that the City had the power to convey this land Nowhere in the brief on the motion for re-hearing is there a specific designation of how this power was conferred; the manner of the exercise of such purported power is nowhere pointed out, save in Section 71 of the Charter and Ordinance F, before quoted. *Page 939
If a city be authorized to convey land, it would seem to us that the action should be by ordinance rather than by resolution. If by resolution, that same should be preceded by authorization by charter or ordinance. The City of Victoria owned a large area of land outside its limits. The purpose for which it could be disposed of and the manner of the sale thereof most certainly were matters appropriate for permanent regulation. Permanent regulation is ordinarily a matter achieved by legislative rather than administrative action.
Under the plaintiff's own theory, this property had been dedicated to a public purpose. It would seem that same should not be conveyed away without some of the safeguards of publicity.
We adhere to our views expressed in the original opinion that this purported conveyance was void.
Motion for rehearing is overruled.