Tackett v. Middleton

On Appellant’s Motion for Rehearing.

Appellant urges that it was not necessary for him in his cross-action to plead that at. the time of the contract of employment that there was then on hand available funds out of the general revenue to pay the compensation agreed upon for his services; that, since the compensation of an architect may be paid ont of the general revenue, as held in Hunter v. Whiteaker & Washington (Tex. Civ. App.) 230 S. W. 1096, and other cases cited in our original opinion, the presumption would obtain that there were sufficient funds out of the current revenues to pay said amount, and it would not be presumed that the city council had attempted to make contracts calling for payments in excess of the current funds. In support of this contention he refers us to language used by the Supreme Court in McNeil v. City of Waco, 89 Tex. 83, 33 S. W. 322, as follows:

“If it should appear from the pleadings or the face of the obligation that the subject of the contract was clearly a matter of ordinary expenditure, such as repairing streets or sal.ary of an officer, this would be sufficient to bring it within .the exception; for the prima facie presumption would be that such claim was intended to be paid out of the current revenues annually collected for payment of such claims, and it would not be presumed the city had attempted to make contracts in excess of its revenues for the year.”

Appellant did in a general way allege that the city had on hand out of the general revenue sufficient funds to make up any deficiency of the proceeds- of the bond issue to pay the cost of erecting and equipping the school building. His allegations as to this matter are as follows:

“If, however, the court should hold that said contracts in any way affected the legality of this defendant’s said contract, then he alleges that at the time that such contracts -were entered into it was understood and agreed by the parties thereto that, if the money arising from the bond issue theretofore provided, supplemented by other funds held by the city, which could legally be made available for that purpose, should not be sufficient to complete the said building and equipment according to their said contracts, that then such deficit should be made up by the issuance of warrants drawn against the current funds of said city for that year and against such other funds of said city as were legally subject to transference for such purpose, which made said con*307tracts legal and binding and not subject to tbe criticisms set out in plaintiffs’ said original petition. And, in tbis connection, this defendant alleges that tbe city charter of the city of Gainesville, section 19, page 44, among other things, provides: ‘That the city council shall have power to appropriate any Money out of public funds of said city to carry out any of the powers granted in this act, and to accomplish the purpose of the provisions hereof.’ In this connection defendant further alleges that the City of Gainesville, not only provided funds for the liquidation of the said contracts, but has actually paid same out, in full liquidation of all of the said' contracts, save and except only the balance due this defendant, and he further alleges that said city has' provided and has set aside and now has on hand money sufficient to pay said indebtedness and available for that purpose.”

But in his argument before this court as well as in his brief, and in his two propositions, he did not place any reliance on the existence at the time of the contract of any general fund available for the payment of his claim. He relied on the $27,000 then on hand from the bond issue, which, as shown in our original opinion, we did not think was available, except as to a proportionate amount thereof, to pay all of his charges for his services as architect. Moreover, .this contract was made June 27, 1921, and it was evidently contemplated that the building would not be completed until sometime in 1922. It is alleged in the petition for injunction that it was contemplated that the building would be completed about October 1, 1922, and appellant evidently concurred in this allegation, because in his prayer for relief he asked for interest on his judgment prayed for from that date.

Any obligation or debt created by a city government which cannot be discharged from the revenues of the current year, and which matures at a period which make it a charge upon the revenues for future years, is a debt within the meaning of sections 5 and 7, art. 11, state Constitution; Terrell v. Dessaint, 71 Tex. 770, 9 S. W. 593; and is forbidden by said article of the Constitution, and article 2, section 28, City Charter of Gainesville, quoted in our original opinion.

For the reasons given, the motion for rehearing is overruled.