162 Minutes of a Regular Meeting of the City Council Austin, Texas, September 07, 1896. Hon. Lewis Hancock, Mayor, presiding. Roll Call. Present. Aldermen Beaty, Fischer, Gross, Haynes, Horton, Linn, Nitsche, Platt, Powell, Redd, Robertus, Schneider, Shelley, Smyth Tobin, Tobin, Townsend and [illegible]er 15. Absent. Aldermen Blount, Edwards and Lawson 3. Alderman Shelley moved to dispense with the reading of the minutes, and that they be approved as printed. Carried. Alderman Linn moved to suspend the regular order of business to allow him to present an application of Recorder Carleton for leave of absence. Carried. Recorder Carleton granted Alderman Linn then moved that leave of absence be granted leave of absence for 1 week the Recorder for one week, commencing September 7th, which from Sept. 7th 1896. motion prevailed. By Alderman Tobin. Petition of Citizens of Grooms Addition, Pet. of Citizens Grooms asking that the provisions of the stock law be extended to cover addition regarding stock law the Grooms Addition. Referred to Stock Committee. By Alderman Nitsche. Petition of L.W. Goldbeck, in regard to the Pet. of L.W. Goldbeck used of West Eleventh Street. Read and referred to the Street Committee. By Alderman Platt. Petition of Geo. F. Runnion asking authority Pet. of Geo. F. Runnion to to erect a public scale on Trinity Street, between Fifth and Sixth erect Public, Mayor Scales on Trinity Street. Streets. On motion of Alderman Platt the petition was granted. Pet. of Citizens on 11th & 12th St. By Alderman Shelley. Petition of Citizens of West Eleventh Street asking that certain improvements be made in that Street. Said petition was referred to the Street Committee with power to act. Reports of City Officers The reports of City Officers for the month of August, were then laid before the Council, and on motion the same were referred to their appropriate committees without reading. Aldermen Lawless and Townsend entered the Council Chamber. The following is a synopsis of the reports of the City Officers for the month of August: By the City Assessor & Collector: City Assessor & Collector Collections as follows: General Revenue Fund. $8,507.03 Interest and Sinking Fund; Waterworks Tax. 697.00 Interest on old Bonds 604.40 School Tax. 2362.65 Total $18,677.77 Referred to Finance Committee. By the City Clerk. Warrants issued for Gen. Rev. Fund. $ [illegible] Warrants issued for Int. & Sink. Fund, 77.00 --- Page break --- Balances on fund General Fund $1124.87 Balances on fund Interest on old Bonds. 1077.79 Balances on fund Earnings Fund 2558.13 Balances on fund Waterworks and Electric Light Fund 33,740.78 Balances on fund Interest and Sinking Fund Waterworks Bond. 27,858.11 Referred to Finance Committee. By the City Marshal. Total amount of fines assessed in Recorder's Court $379.00 Amount paid in Cash $184.50 Worked off 177.00 Carried over 58.50 Collected on back fines $24.00 Paid fines for August 34.00 Total number of Arrests, 59. Referred to Police Committee By the City Physician Number of Patients in Hospital August 1st 1896. 70 " " admitted during " " 17 " " discharged " " 16 Deaths - " " 3 Patients remaining " " 31st " 13 " Visits made to Paupers during August 79 " Prescriptions " " " 165 " Cases of Diphtheria " " 1 " " Scarlet Fever " " 1 General health of the City is good. Referred to Hospital Committee By the City Sexton. Total number of Deaths during August 1896. 19 White 18 Colored. 1 Male 17 Female 7 Referred to Cemetery Committee. Report of City Auditor. The City Auditor reported that he had examined the books and reports of the City Clerk and the City Assessor and Collector and found the same correct. Also that he had examined the receipts and disbursements of the City Treasury, and the Earnings Fund, and the monthly reports of the City Treasurer, and the same found correct. Report of Supt. of Water Works. The Supt. of the Water and Light Plant presented his report, showing that seven new consumers of water for the month and six old consumers again connected making forty three additions. Showing an increase in earnings of $2.20, ten new meters set, six new old wells in use. One new water closet & three old in use. One new old sink in use. And a large amount of repairs and improvements made to the Water and Light Plant, and water works generally during August. --- Page break --- 164 August 31st 1896. 82.N. From by request. Total number of consumers The receipts for the month were as follows: For Water $1153.80 For Electric Light. 918.96 For Electric Power. 341.94 Total $3214.50 There was also collected and undeposited from sundry persons the sum of $47.11. Total number of gallons of water pumped during the month 130,664,951 Average number of gallons pumped per twenty four hours was 4,880,159. The bills and accounts approved for payment during the month were $1007.66. On motion the report was ordered filed. Ald. Davis report in regard Aldermen Fischer, for the Street Committee, to whom was referred the to bridge over Steenryings Creek City Engineer in regard to the bridge across Steenrying in South Austin. Creek, South Austin, presented their report, recommending that the bridge be repaired at once. Adopted. Supt. Maddox read his Alderman Haynes moved that Superintendent Maddox be allowed resignation as Supt. W.S. to read his resignation. Alderman Snyder moved that the matter be postponed, to come up after the regular order of business. Lost. The motion of Alderman Haynes was then adopted. Superintendent Maddox then tendered his resignation, to take effect when hissuccessor had been appointed and qualified. Supt Maddox resignation Alderman Shelley moved that the resignation be accepted to take accepted to take effect when effect at once, which motion prevailed by the following vote: Aldermen Fischer, Goeth, Lawless, Ritschke, Platt, Roberdeau, Shelley, Strumpf, Taylor, Tobin and Zilker. 11. Nays: Aldermen Beatty, Glass, Haydon, Short, Linn, Powell, Redd, Rosechopin, Schneider and Townsend 10. Comm. on Claims & Accts. Aldermen Platt, for the Committee on Claims and Accounts, to whom report on claims of Mrs. Fannie was referred the claims of Mrs. Fannie Huddle and Mrs. Mary Mullin Huddle & Mrs. M. Mullin for for damages to land overflowed by the [illegible] presented their report, damages to land overflowed which was read and ordered to lie over to come up under the head of new business: Finance Comm. report on Alderman Townsend, for the Finance Committee, presented the fol bids received for Austin lowing report, which was read: Dam Bonds for investment Austin, Texas, Sept. 1st 1896. of Sinking Fund To the Honorable City Council: Gentlemen, The Finance Committee and the Mayor, by ordinance charged with the duty of investing the Sinking Fund, beg leave to report that they have advertised for bids for Dam Bonds, from $5000. to $11,000. of which none were received, but that six bids were made on the entire lot: Six A. F. [illegible] at 103. [illegible] Six [illegible] 2. & 2. at 104. [illegible] Six A. D. [illegible] at 104. [illegible] Six C. [illegible] at 104. [illegible] Six [illegible] at 105. [illegible] Six G. [illegible] at 105. [illegible] --- Page break --- 465 Two thousand dollars at 99½ and interest. Five thousand to $10,000 at par, flat. One thousand dollars 6 per cent Bonds at 107½ and interest. These offers were most of them subject to sale of the Bonds if the offer was immediately accepted, and the Committee not being authorized to close any trade for Bonds, could only receive them subject to the action of the Council. In the meantime all the best offers have been withdrawn. The Bonds offered the City at 95, 96½ and 97, are no longer obtainable. Under these circumstances the Committee does not feel justified in recommending the purchase of Bonds at given figures higher than these, when better offers have been made in the last few weeks. The Committee believes it best to advertise again for bids to be opened on September 7th the day of the next regular Council meeting at which meeting the best offer can be received, the money approppriated, and the matter closed at once; and it will take this course unless objection is offered. To bids to be advertised for now again the Committee thinks it fair to all bidders that the names of none of the bidders be disclosed. Very respectfully, Lewis Hancock, Mayor; A. J. Townsend, W. D. Shelley, Finance Committee. On motion the report of the Committee was adopted and the Committee authorized to advertise again for bids. Com. on Claims Accounts Alderman Platt, for the Committee on Claims and Accounts, to whom report on petition of J. R. Davis was referred the petition of J. R. Davis for damages to person asked for damages, with further time. for further time in which to make their report. Granted. The report of the Fire Commissioners on the application of North Fire Commissioners report Austin Fire Company was read, and on motion the report was on North Austin Fire Co. laid over to come up under the head of new business. The Mayor then read the following message to the Council: Mayors Message in Mayor's Office, September 7th 1896. regard to management of To the Honorable City Council: Water Plant. Gentlemen, In pursuance of the ordinance governing the Water Plant, passed at your Special Session on the 29th of August, and your action under the same, I notified Messrs. H. A. Water and J. W. Johnson of their appointment in temporary charge of the Plant, and addressed the following letter to Mr. John W. Maddox: Mayor's Office, August 31st 1896. "Maddox letter to W. J. Mr. J. W. Maddox, Esq., Present. Maddox" Sir, In pursuance of an ordinance passed by the City Council on the 29th of August, I do appoint J. W. Water and H. A. Johnson as temporary managers of the Water Plant until a permanent water works Superintendent is selected. You will act with Mr. Johnson, under a bond of $2,000, and will supervise all employees under you. [illegible] --- Page break --- 166 Superintendent. Respectfully, Lewis Hancock, Mayor, received the following reply: Austin, Texas, August 31st, 1896. Supt. Maddox letter to Hon. Lewis Hancock, Mayor of the City of Austin: Mayor. In reply to your communication of this date, informing me that I am "relieved of duty as Superintendent," I desire to say that I do not or understand the action taken by the City Council and by you as Mayor of the City. I am, very respectfully, (Signed) J. W. Maddox, Superintendent. I thereupon made a careful examination of the ordinance in question and of its effect upon the control of the Plant. I found that certain preliminaries had been omitted which, perhaps, resulted in delaying temporarily the taking effect of the changes contemplated by said ordinance, but that such preliminaries could be readily complied with and the ordinance put into immediate effect, provided the ordinance itself was not invalidated by causes outside of itself. But a further examination disclosed the fact that this ordinance, passed August 29, 1896, and the original ordinance for the government of the Water and Light Plant, passed January 7, 1895, contained many clauses imposing forfeitures and penalties, and that neither of said ordinances had been published for ten days, as is required by Section 31 of the City Charter, the effect of which seemed to be to render inoperative both ordinances. I submitted the matter to the City Attorney and received the following reply: Austin, Texas, September 7th, 1896. City Attorney Bendele's Hon. Lewis Hancock, Mayor, Austin, Texas. letter to Mayor. Dear Sir: At your request I have carefully examined the original and amended ordinances providing for the government of the City Water and Light Plant, the first of which was adopted on the 7th day of January, 1895, and the other on the 31st day of August, 1896, as well as several of their other amendments to the first mentioned ordinance. I find that neither the original ordinance nor the amendment of August 29, 1896, have been published in conformity with the Charter, and therefore, I am of the opinion that they have never been in effect. It will be observed that these two ordinances are not identical in the violation of several of their provisions, and while they are not altogether penal in character, yet the sections declaring the penalties and forfeitures are so interwoven with, and dependent upon the others that, in my opinion, no part of either ordinance could have been in effect until after publication in full in conformity with Section 31, page 7, of the Charter of the City of Austin, which gives the following provision: "Fine, imprisonment, or both, as may be prescribed for its violation." In view of this, both ordinances are invalid and I am of opinion that the City should proceed by adopting a new ordinance and publishing it as required by law. Very respectfully, F. M. Bendele, City Attorney, Austin, Texas. --- Page break --- publication has been completed." Similar charter provisions have frequently been construed by the Court. and the rule seems clearly established that where the publication is made a condition precedent to the taking effect of an ordinance, the requirement must be complied with in order to put the ordinance into effect. The following authorities, among numerous others, sustain this position: Dillon on Municipal Corporations, volume 1, section 321. Tiedeman on Municipal Corporations, Section 113, page 263. American and English Encyclopedia of Law, volume 1, page 241. This citation of authorities could be greatly enlarged, but I think an examination of those here referred to, together with the cases sustaining the view I have laid down, will justify the conclusion at which I have arrived. After an examination of these ordinances, and a discovery of what I regarded was a serious omission, likely to produce confusion, I thought it best to prepare a substitute for all ordinances on this subject, separating the penal provisions from those not of a penal character, and embodying such in two separate ordinances. The results of this you will find in the two ordinances which I herewith enclose. In the preparation of these ordinances I had the valuable assistance of Hon. F. H. North, the author of the first ordinance on this subject, and to him am indebted for the very efficient aid he has rendered. I believe that you will find that the substitute preserves everything of value contained in the original ordinances and simplicity matters by removing all question that has arisen because of the omission to make publication as required by the charter. The sections of the original and amended ordinances denouncing penalties and forfeitures are as follows: Sections 11, 13, 16, 28 and 34. Very respectfully, (Signed) Geo. F. Pendexter, "City Attorney". If the opinion herein expressed is correct, and it seems to me that if the consequences are grave and far-reaching. It follows that the original Water and Light ordinance passed January 7th 1895, has never gone into effect and that all acts done under it, including the election of a Water and Light Commission and the election of a Superintendent, are invalid. It further follows that all amendments thereto, including the ordinance passed August 7th, are certainly inoperative, and probably void. The original ordinance, passed January 7th 1895, may certainly be put into effect by publication for ten days as required by the charter. But it would be very costly to do this, without delay and involving new officers under the order or- dinance by the citizens, but it is or else its effect is to make it a new and better ordinance and avoid any further litigation. --- Page break --- 168 To be passed over again and to be published To receive the opinion of the City Attorney, as to the ordinances in force governing, or protecting the City Water and Light Plant, controlling tapping, plumbing, waste, etc. This condition of affairs should be remedied at once, and all doubt set at rest, as to questions raised. Owing to the gravity of the situation, I respectfully call upon and request the Honorable Chairman of the Water and Light Committee, to give it immediate, or as a substitute for it, the careful and diligent, consideration, and attention. The inner workings are such, in their character, and which can at once go immediately upon its passage, and the other, a short ordinance contain- ing all the penal provisions, and which can be published without undue expense to the City. In compliance with my request, Mr. Moran or the City Attorney himself prepared the two ordinances referred to above in the City Water and Light, and which I herewith lay before you. I recommend that they receive your immediate consideration, and that they be passed at the earliest practicable moment. As the two together are substantially, a compilation, or re-enactment of what the Council has already done, or at least wished to do, I trust they will meet your unanimous approval, and be speedily enacted into law. Respectfully, Lewis Hancock, Mayor. Alderman Saylor moved to suspend the regular order of business and that the Council take up the Water and Light ordinances mentioned in the Mayor's message, which motion prevailed. Alderman Linder was excused from further attendance at this session of the Council. Ord. providing for management & operation of the Water & Light Plant. The Mayor's message before the Council an ordinance entitled, "An ordinance providing for the management and operation of the Waterworks, Electric Light and Power Plants of the City, and establishing rules and regulations for the government thereof and fixing prices for service." The ordinance was read the first time and on motion of Alderman Stumph the rules were suspended and the ordinance was placed upon its second reading by the following vote: Ayes: Platt, Padden, Buterding, Rose, Knapp, Schneider, Shelley, Tilschner, Saylor, Stumph - 10. Nays: Donovan, Branwell - 1. The ordinance was then read a second time by caption. Alderman Saylor moved that the City Clerk be authorized to employ [illegible] --- Page break --- 469 Ord. for providing for protection Aldn Fischer, Robert [illegible], Shelley, & of W. W. & L. light plants etc. Mayor laid before the Council an ordinance providing for the protection of the W. W. Light and Sewen Plants, grounds and property of the City of Austin and from providing penalties for the violation of its provisions: The ordinance was read a second time and a motion made to suspend the rules so as to put the ordinance on its second reading was lost by the following vote: Yeas, Aldermen Fischer, Glass, Joseph, Haynes, Landrum, Powell, Roberdeau, Ridd, Rossingmund, Stumpt, Townsend and Tyler 13. Nays, Aldermen Healy, Glass, Haynes, Platt, Ridd, Rossingmund Schneider On motion Aldermen Tobin and Schneider were excused from further attendance at this session of the Council. Alderman Fischer moved to suspend the regular order of business to allow Alderman Powell to offer a resolution. Carried. Alderman Powell offered the following resolutions which were read Resolution by Ald. Powell, and adopted: authorizing City Marshal to Resolved, that the Marshal be empowered to employ one employ 1 man for the month person for the month of September to enforce the dog ordinance, of Sept. to enforce dog ordinance. at a salary not to exceed forty dollars. On motion Alderman Horton was excused from further attendance at this session of the Council. Alderman Ridd moved that the Council adjourn until Wednesday night next. Lost. City Engineer granted two On motion of Alderman Townsend the City Engineer was granted weeks leave of absence from Sep. 10. a leave of absence for two weeks from the 10th inst. Alderman Nitschke moved to suspend the regular order of business and take up the appropriation bills, which motion prevailed. Ord. appropriating $500 for extra By Alderman Jiken An ordinance appropriating the sum of $500. Street Labor to pay extra street laborersAlderman Healy was excused from further attendance at this session of the Council. The ordinance was passed under suspension of the rules by the following vote: Yeas, Aldermen Fischer, Glass, Joseph, Haynes, Landrum, Nitschke, Platt, Powell, Ridd, Roberdeau, Rossingmund, Shelley, Stumpt, Taylor, Townsend and Tyler 16. Nays. Ord. appropriating $96. to By Alderman Glass, An ordinance appropriating the sum of $96. pay extra Sanitary labor for Sept. to pay extra Sanitary laborers for the month of September 1891. The ordinance was read first time and on motion the rules were suspended and the ordinance passed upon its second reading, by the following vote: Yeas, Aldermen Fischer, Glass, Joseph, Haynes, Landrum, Nitschke, Platt, Powell, Ridd, Roberdeau, Rossingmund, Shelley, Stumpt, Taylor, Townsend and Tyler 16. Nays. --- Page break --- 470 The amendment was then read a second time. By motion, Alderman Gilker moved to amend by adding "and extra teams". Alderman Glass moved to amend the amend of Alderman Gilker by making the amount appropriated $1000.00 instead of $100.00. Alderman Heath moved to adjourn until 8:30 p.m. Wednesday the 9th inst. Lost by the following vote: Yeas Alderman Breyden, Putnam, Stummst, and Townsend 4. Nays Alderman Fischer, Glass, Gooth, Haymes, Nitschke, Platt, Powell, & Brosendeau, Rosengren, Shelley, and Zilker 11. The question was then taken on the amendment offered by Alderman Glass, and the same was lost. The amendment of Alderman Zilker was lost. On motion of Alderman Fischer the rules were further suspended and the ordinance placed upon its third reading and final passage by the following vote: Yeas Alderman Fischer, Glass, Groth, Haynes, Nitschke, Platt, Powell, Read, Rosengren, Breyden, Shelley, Stummst, Taylor, Townsend & Zilker 15. Nays None. Ord. appropriating $347.89 out of Earnings Fund to pay Approved Accounts. Alderman Townsend, An ordinance appropriating the sum of $347.89 out of Earnings Fund for the purpose of paying Approved Accounts. The ordinance was passed under suspension of the rules by the following vote: Yeas Alderman Fischer, Glass, Groth, Haynes, Nitschke, Platt, Powell, Read, Rosengren, Breyden, Shelley, Stummst, Taylor, Townsend & Zilker 15. Nays None. Ord. appropriating $110.84 out of General Fund to pay Approved Accounts. Alderman Townsend, An ordinance appropriating the sum of $110.84 out of General Fund to pay Approved Accounts. The ordinance was read first time and a motion made to suspend the rules and place the ordinance on its second reading was lost by the following vote: Yeas Alderman Fischer, Glass, Groth, Haynes, Nitschke, Platt, Powell, Read, Rosengren, Breyden, Shelley, Taylor, Townsend and Zilker 14. Nays Alderman Stummst 1. Mayor authorized to appoint a temporary Water & Light Committee to operate the plant, who shall employ a Superintendent temporarily. Alderman Powell moved that the Mayor be authorized to appoint a temporary Water and Light Committee to operate the plant, who shall be authorized to employ a Superintendent, temporarily, which motion prevailed. Ord. appropriating $230.00 to repair bridge over New Riverings Branch. Alderman Read, An ordinance appropriating the sum of $230.00 to repair the bridge over Newrings branch in Sooby Austin. The ordinance was passed under suspension of the rules by the following vote: Yeas Alderman Fischer, Glass, Groth, Haynes, Nitschke, Platt, Powell, Read, Rosengren, Breyden, Shelley, Stummst, Taylor, Townsend & Zilker 15. Nays None. Alderman John Landers Fischer appointed temporary Water & Light Committee. Alderman John Landers, and Fischer the temporary Water and Light Committee, as provided for in the resol- ution. George P. Linnson City Clerk.