Appellee held a valid judgment against the city, rendered upon a tort, and brought this action of mandamus to require the city and its common council to levy a tax sufficient to pay the judgment and costs, together with the costs of this proceeding, and to require the assessor and collector to do what was necessary to carry into effect such levy; or, if the court should determine that the city could *Page 582 not levy a greater tax than that then levied for city purposes, then that the officers of the city be commanded and compelled to provide, if necessary, by ordinance, a special fund out of the tax so levied sufficient to pay this indebtedness; and if such relief could for any reason not be granted, then that the mayor and council be compelled to direct and authorize the issuance of a warrant by the city secretary, the same to be paid out of the funds on hand, or that may come into the hands of the city treasurer, as taxes levied and collected for city purposes, compelling the issuance of such warrant by such secretary in due form, with proper number, and the payment thereof according to its terms and number by the treasurer to the clerk of the court to be applied to plaintiff's judgment.
The conclusions of the judge (there is no statement of facts) show that it was proved that the expenses of the city, which was economically governed, amounted for the year then current and for previous years to $9,693.18 for maintaining the city government, $5,060 for maintaining a paid fire department, and $6,610.55 for maintaining waterworks and electric light, a total of $21,363.73. The income from all sources amounted to $20,668.60, which included revenue derived from the waterworks, $6,668.60. The city existed under the general law relating to towns and cities, and in deriving said income, the city had levied tax for general purposes of twenty-five cents on the hundred dollars, the maximum allowed. The above figures do not include the revenue derived from the levy of 25 cents on the $100 for improvements, nor the revenue levied for school purposes, nor the levy of 15 cents on the $100 for streets, nor the revenue derived from the railroad bond tax.
It is clear from the statement above that there was no room for either the levy of a tax, or the issuance of a warrant on the general fund for the liquidation of the species of claim which plaintiff had, if the expenses of maintaining a fire department, waterworks or system of electric lights are to be regarded as expenses of the city. If they were, they were entitled to be paid out of the fund available for general purposes, and the city had the right and it was its duty to so pay them, in preference to a debt not a part of the current expense of the city. If they were not, which was the view taken by the trial judge, then the levy of 25 cents on the $100 was materially greater than the necessities of the city government, and a levy sufficient to pay this judgment could properly have been made within the twenty-five cents, and mandamus might have issued to compel a provision for this debt in the levy.
The law permits the city to establish and maintain systems of waterworks, and lights, and a fire department. The power to institute and maintain these systems or departments, carries with it the obligation to meet the expenses thereof. The power to determine the necessity or desirability of such systems or branches of service is vested by law in the city council, and they are not restrained in the exercise of such discretion, except indirectly by the limit upon their power to raise revenue. When this body has seen fit to create those departments and operate them, *Page 583 there can be no other view than that the expense of carrying them on becomes part of the current expenses of the city, entitled to be discharged out of the current revenues. We can see no difference in this respect between such expense and that incurred for police or sanitary purposes. Certainly the courts have no power to review the acts of a city council in a matter committed by law to their judgment and discretion. And when the city sees fit, through its council, to adopt such works or service, the carrying them on becomes one of the governmental functions of the city; and we have no power to question the city's right to these benefits because we may consider that they could be dispensed with, and an efficient city government conducted without them. East St. Louis v. U.S., 111 U.S. 321; Clay County v. McAleer,115 U.S. 116.
The grant of the writ to compel a levy was under the facts of this case erroneous. The city needed all of the funds raised by the maximum rate of levy and its other available funds for the expenses of its maintenance. The levy commanded would have required the city to go beyond the constitutional limit, or would have denied it the means of applying that much of its income to the paramount purpose of paying its current expenses.
Appellant also refers to the power of the council "to provide by ordinance special funds for special purposes" (Revised Statutes, article 372), and in his petition he prayed that appellant be required to provide by ordinance, if necessary, a special fund out of the tax levied for city purposes sufficient to pay appellant's claim. This power is manifestly a discretionary mater with the council. No duty is devolved on them in this respect, and its exercise cannot be controlled by mandamus.
He also insists that he was entitled under the allegations and proof to an order requiring the issuance of a warrant in the manner stated in his prayer. We agree with the court that plaintiff was not entitled to this form of relief. A warrant issued to him payable out of the general fund according to its number, in the condition of such fund with reference to the charges thereon as shown by the testimony, would, if paid, necessarily have diverted that much of the fund from its proper application to current expenses, and left that much of the current expenses unpaid.
The case of Corpus Christi v. Woessner, 58 Tex. 462, is authority for the granting of mandamus requiring the city to pay over to a plaintiff the surplus of the city revenues, over and above her current and ordinary expenses at the end of each year until the judgment was satisfied. It is observed that the facts of that case showed there was such surplus in the city treasury at the time, and that there would probably be such a surplus in succeeding years. In the present case, this fact, either as to the present or future condition of the city's finances, does not appear; in truth the contrary would seem to be the fact. Under the evidence before us, the character of judgment affirmed in the last mentioned case would be speculative and inappropriate. *Page 584
The judgment will be reversed and here rendered for the appellant, without prejudice to any future proceedings in this behalf.
Reversed and rendered.
ON REHEARING.
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