DocketNumber: No. 2001.
Citation Numbers: 244 S.W. 241
Judges: BOYCE, J.
Filed Date: 6/21/1922
Status: Precedential
Modified Date: 1/13/2023
It appears that the city of Amarillo adopted its charter under the authority of article 11, § 5, of the state Constitution and articles 1096a to 1096i, Vernon's Sayles' Civil Statutes. Article 11, § 5, of the Constitution grants authority to cities having more than 5,000 inhabitants to adopt and amend their charters, "subject to such limitations as may be prescribed by the Legislature, and providing that no charter or any ordinance passed under said charter shall contain any provision inconsistent with the Constitution of the state, or of the general laws enacted by the Legislature of this state." Article 1096d, Vernon's Sayles' Civil Statutes, conferred upon any city accepting a charter under such law the power to own and operate, "within or without the city limits * * * a system * * * of * * * street railways," etc., and in another paragraph of the same article "to provide for the exemption from liability on account of any claim for damages to any person or property, or to fix such rules and regulations governing the city's liability as may be deemed advisable." Section 8 of the city charter reads as follows:
"Said city shall have the power to provide for the exemption of said city from liability on account of any claim for damages to any person or property or to fix such rules and regulations governing the city's liability as may be deemed advisable."
The following ordinance of the city is quoted in the judgment of the court as furnishing exemption from liability in this suit:
"Hereafter the city of Amarillo shall be and is hereby declared exempt from any and all liability and damages for injury or injuries to persons or property caused by or arising from the filling, raising, grading, elevating or improving any property within the city, or caused by or arising from the construction, maintenance or operation of any public utility plant or system, or caused by or arising from the maintenance, operation or extension of its sewerage system, or caused by or arising from any obstruction, unevenness, depression, excavation of any public place in this city, and from any and all liability of any other character of injury to persons or property howsoever the same is caused or produced."
The modern city performs functions of a dual nature. Primarily it is a governmental agency, clothed with limited powers of sovereignty, exercised for "purposes essentially public, purposes pertaining to the administration of general laws made to enforce the general policy of the state." The city may be granted the same immunity against claim for damages for its acts done in its governmental capacity as is enjoyed by the general government in such matters. Other acts of the city are done in the exercise of powers not strictly governmental, but "voluntarily assumed and exercised for the private advantage and benefit of the locality and its inhabitants." For its acts done in this latter capacity, the city, in the absence of some special exemption, is liable to the same extent as any private person or corporation performing the same acts. City of Galveston v. Posnainsky,
The city, in the operation of a street railway system, was unquestionably acting in its private and corporate capacity, as distinguished from its acts of governmental character, and without the exemption claimed under its charter and ordinances would have been liable to the plaintiff for damages sustained as a result of the *Page 243
negligence of its employees in the operation of the car at the time of plaintiff's injury. Dillon on Municipal Corporations (5th Ed.) §§ 1303 and 1670; Henry v. City of Lincoln,
A decision of the first question suggested would involve a consideration of several provisions of the Constitution and their relation to the facts of this case. The most pertinent of these would perhaps be those contained in section 3, art. 1, and section 13, art. 1, of the state Constitution. We know of no authority directly in point here. The case of Williams v. City of Galveston,
The legislative power of the state is by the Constitution vested in the Legislature. The people have the right under the Constitution, to have the judgment and action of their chosen representatives in the enactment of laws which are of general public concern, and the Legislature as a general rule cannot delegate the power of making laws to the people or any other body. Smith v. Swisher,
"To buy, own, construct within or without the city limits and to maintain and operate a system or systems, of gas, or electric lighting plants, telephones, street railways, sewerage plants, fertilizing plants, abattoir, municipal railway terminals, docks, wharves, ferries, ferry landings, loading and unloading devices and shipping facilities, or any other public service or public utility, and to demand and receive compensation for service furnished for private purposes or otherwise," etc.
It is obvious that many of the activities of a municipality, engaged in operating the public utilities mentioned in this article of the statute, do not pertain to the governmental functions of the city, and necessarily many of these activities may become a matter of general public concern. It probably did not occur to the Legislature that the general authority to provide for exemption against liability for damages would be invoked to sustain local legislation providing immunity from damages resulting from the acts of the city while engaged in its own private business; and it may possibly be that the statute should be construed as furnishing no authority for such character of legislation. Henry v. City of Lincoln,
Since we have concluded that in any event the court was in error in sustaining the exception to the petition, we have not considered the question as to whether the court had the right, in passing on the demurrer, to take judicial cognizance of the ordinance not pleaded by the plaintiff.
Reversed and remanded.
"Providing that no charter, or any ordinance passed under said charter, shall contain any provision inconsistent with the Constitution of the state, or of the general laws enacted by the Legislature of this state."
Since the Constitution vests the legislative power of the state in the Legislature, any charter which would attempt to confer upon a city council the power of legislation in respect to matters that are not of purely local concern would, in our opinion, be inconsistent with the Constitution, and necessarily an ordinance passed by the city authorities, and not of such character, would be ineffective. Our original opinion was devoted to an elaboration of the foregoing general propositions, and we do not think it necessary to discuss them further,
Stanton v. . Board of Supervisors , 191 N.Y. 428 ( 1908 )
Stoutenburgh v. Hennick , 9 S. Ct. 256 ( 1889 )
Noa Spears and Wife v. City of San Antonio , 110 Tex. 618 ( 1920 )
White v. City of San Antonio , 94 Tex. 313 ( 1901 )
Williams v. City of Galveston , 41 Tex. Civ. App. 63 ( 1905 )
Hise v. City of North Bend , 138 Or. 150 ( 1931 )
State Ex Rel. Heinig v. City of Milwaukie , 231 Or. 473 ( 1962 )
Untitled Texas Attorney General Opinion ( 1977 )
Untitled Texas Attorney General Opinion ( 1940 )
Crownhill Homes, Inc. v. City of San Antonio , 433 S.W.2d 448 ( 1968 )
State v. City of Galveston , 175 S.W.3d 1 ( 2004 )
Salvatierra Ex Rel. Salvatierra v. via Metropolitan Transit ... , 974 S.W.2d 179 ( 1998 )
Tutor v. City of Amarillo , 244 S.W. 632 ( 1922 )
City of Abilene v. Moore , 12 S.W.2d 604 ( 1928 )
Fall v. Thompson , 57 S.W.2d 252 ( 1933 )
Texas Employers' Ins. v. City of Tyler , 283 S.W. 929 ( 1926 )
McCombs v. Dallas County , 136 S.W.2d 975 ( 1940 )
City of Uvalde v. Stovall , 279 S.W. 889 ( 1925 )
Cameron Cty. Water v. Whittington , 297 S.W. 868 ( 1927 )