687 Minutes of a called meeting of the City Council held Austin, Texas, July 12, 1902 Hon R.E. White Mayor presiding Roll Called Present Aldermen Crowson Davis Low Maddox Mortimer Shumate Slocum Thiele Absent Aldermen Hume Ritschke Reed Schneider Shelley The following call of the Council was read To the members of the City Council, Austin, Texas, July 12th, 1902 City Council of the City of Austin: A special meeting of the City Council of the City of Austin is hereby called to convene in the Council Chamber at the City Hall in said City on Saturday July 12, 1902, at 8:30 o'clock P.M. for the purpose of considering and taking such action as to the Council may deem proper on a Communication from the City Attorney with reference to Cause No. 2292, E.B. Bartholomew Receiver, et al vs. City of Austin et al, pending in the Circuit Court of the United States at Austin R.E. White Mayor J. Shumate 6th Ward H.D. Shelley J.M. McLain City Marshall I hereby certify that all the Aldermen have been served with the foregoing by having it read to them in person with the exception of Alderman J.B. Ritschke, he being out of the city a true copy was left at his residence J. Montgomery Jr. By Marshall The following Communication from the City Attorney was read. July 12, 1902 The Honorables, the Mayor and Board of Aldermen of the City of Austin: Gentlemen: In my opinion the status of the litigation in communication Cause No 2292 E.B. Bartholomew, Receiver et al vs The City of Tim R. Atty Austin, et al pending in the Circuit Court of the United States atty for the Western District of Texas, at Austin, is such regarding as to render prompt action by the City Council essential to action in the proper protection of the interests of the City of Austin. US Court I therefore beg to submit to the Council the following report of the present condition of that litigation, and to recommend that the Council in due time take such action thereon as in their judgement may seem proper. On March 11 1902 a mandamus judgement was entered in said Cause the material part of which reads as follows, Viz: "And it appearing to the Court that Joseph Nalle, Receiver, & the City Water Company and the Austin Water Light and Power --- Page break --- 688 Company is the owner of a subsisting and unsatisfied judgement against the City of Austin for the sum of $39,925.00 with interest on same at the rate of 6% per annum from May 30th 1899 and all costs of suit, and that execution has been duly issued on same and has been returned unsatisfied, and that the City of Austin has paid no part of same, and has failed and refused to pay same, and that the City of Austin has no property, out of which said indebtedness, or any substantial part thereof, can be realized by execution on otherwise, and that said City has not in its treasury, subject to the payment of said debt, money sufficient to pay said debt. And that its City Council is composed of R.E. Colet is the Mayor, and the following Aldermen; Joseph Hemphill, J.B. Nitschke, Geo. Low, H.B. Shelley, J.M. Shumate, R.A. Gillis, J.P. Schneider, H.B. Redd, J.M. Maddes, J.M. Crowton, J.W. Hume, Wm. Weil, O.H. Mortimer and H.B. Dains, and that the City is authorized to levy a tax of $1.00 on every $100.00 valuation for current expenses and general improvements, a levy of 70 cents on every $100.00 valuation being sufficient, with other sources of income to furnish funds for carrying on the Municipal government of said City, and paying the reasonable expenses thereof, and that said City is also authorized to levy and collect an additional tax to pay said judgement, and that Said City Council is authorized and it is its duty to levy and collect by ordinance all necessary and proper taxes, and by ordinance to appropriate all money necessary and proper for the payment of the debts of said City, and that Fred [illegible] is the Assessor and Collector of said City of Austin, whose duty it is to Assess and Collect the Taxes levied under the Authority of the City Council, and that John O. Johnson is the City Clerk of the said City of Austin, and that it is the duty of said Mayor, R.E. Colet, to sign warrants, and of the Clerk John O. Johnson, to attest the same, and it is their joint duty to deliver said warrants to the beneficiary for the payment of any indebtedness of the City of Austin to the said beneficiary, and that the claimant is the treasurer of the said City of Austin, and that it is his duty to pay out upon said warrants, the monies of the City of Austin; It is therefore ordered, adjudged, and decreed by the Court that the mandamus as prayed for by the plaintiff be granted to the extent of the levy and collection for the year 1900, and all years subsequent thereto until the judgement aforesaid is paid in full. 1st A tax of $5/10 of 1% on all property within the limits of said City made taxable by law as a part of the tax of 1% authorized by law for current expenses and general improvements of the City 2nd A tax of 1/5 of one per cent of all property within --- Page break --- Said City, made Taxable By law as a part of the 1/2 per cent authorized By law to be levied over and above the Tax of one per Cent for Current expenses and general improvements of the City Said Tax of 3/10 of one per Cent as aforesaid, To be appropriated and Said Tax of 1/5 of one per Cent as aforesaid, to be appropriated and used for the discharge of Said judgment and the Costs of this Case; and defendant, the City of Austin, and R.E. White, the Mayor thereof, and the following Aldermen thereof; Joseph Shimmily, J.B. Hicks, Theo. Low, H.P. Shelley, J.W. Johnson, A.A. Gillis, J.Schneider, W.B. Redd, R.M. Maddox, B.W. Crooker, J.A. Huske, J.M. Smith, R.D. Mortimer and Co. W. Davis, Constituting with Said Mayor, the City Council of Said City, and their Successors in office are hereby Commanded and ordered, under pains and penalties of Contempt of this Court, To levy and Collect for the year 1904, and for all years Subsequent thereto until the judgment aforesaid is paid in full; 1st A Tax of 3/10 of one per Cent of all property within the limits of Said City, made Taxable By law as a part of the Tax of one per Cent authorized By law for Current expenses and general improvements of the City. 2nd A Tax of 1/5 of one per Cent of all property within Said City, made Taxable By law as a part of the 1/2 per Cent authorized By law to be levied over and above the Tax of one per Cent for Current expenses and general improvements of the City Said Tax of 3/10 of one per Cent as aforesaid, and Said Tax of 1/5 of one per Cent as aforesaid, To be appropriated and used for the payment and discharge of Said judgment and the Costs of this Case; and H.P. Shelley, the husband and Collector of Said City of Austin, and his Successors in office, are hereby Commanded and ordered, under pains and penalties of Contempt of this Court, to assess and Collect Said Taxes levied under authority of the City Council; and the Said R.E. White, and his Successors in office are hereby Commanded and ordered to draw warrants drawn on the funds arising from the Collection of Said taxes in favor of plaintiff to the amount of the Sums necessary to pay Said judgement and Costs, & Such warrants to be drawn in favor of plaintiff; and Said John Johnson, Clerk of the City of Austin, and his Successors in office, are hereby Commanded and ordered, under pains and penalties of Contempt of this Court, To attest Said warrants; and the Said R.E. White and his Successors in office, are further Commanded and ordered, under pains and penalties of Contempt of this Court to deliver Said warrants to plaintiff, the Same being made payable to him; and the Said H.P. William, Treasurer of Said City of Austin, and his Successors in office, are hereby Commanded and ordered, under pains and penalties of Contempt of this Court, to pay to plaintiff, upon Said warrants, out of the respective funds where allotted to the amounts necessary to pay Said judgment --- Page break --- 690 And the Costs of this proceeding, which money when so paid shall be in full satisfaction of said judgement, to which the defendant and respondents then and there in open Court excepted. March 11, 1902. Aleck Bowman, Judge This judgement which with interest accrued to date amounts to upwards of $47.000. must either be obeyed by the persons against whom it is directed, or it must be superseded by appeal perfected in the manner authorized by law. In order to supersede the judgement and properly perfect an appeal it is necessary (1) That bills of exception in proper form should be prepared by Counsel for the City, approved by the trial Judge, and filed with the Clerk of the Court at Austin, (2) That a bond in proper amount and with good and sufficient sureties thereon should be executed, approved and filed with the Clerk of the Court (3) That Assignment of errors in proper form should be prepared by Counsel for the City and filed with the Clerk of the Court, and (4) After these things have been done, that a transcript of the record be made out and filed with the Clerk of the Circuit Court of Appeals at New Orleans. By a special order entered in the Cause a period of 150 days from date of judgement has been allowed for filing bills of exception and otherwise perfecting an appeal. The Judge who tried the case is said to be at present at Baton Rouge La. and in the state of New York, and it is necessary to secure his approval of the bills of exception before they can be filed. It will, therefore, be seen that it is urgently necessary that the Counsel should promptly decide the following questions, Viz: 1st Shall an appeal be perfected in the case? 2nd If so, how shall the necessary bond be secured? The requisites of the bond are prescribed by rule 18, Circuit Court of Appeals rules, which reads as follows, Viz: "Supersedeas bonds in the Circuit Court must be taken with good and sufficient security, that the plaintiff in error or appellant shall prosecute his writ of error to effect, and answer all damages and costs if he fails to make, his plea good. Such indemnity, where the judgement or decree is for the recovery of money not otherwise secured, must be for the whole amount of the judgement or decree, including just damages for delay, and costs and interest on the appeal." This rule is held to apply against Municipal Corporations, when the money directed to be paid has already been collected; although it is otherwise where the judgement is secured by the lien of an uncollected tax. --- Page break --- 691 In Conclusion I beg to state that, in my opinion, it is imperatively necessary that the city should have the benefit of the services of special counsel to prosecute this appeal. The City Charter does not make it the duty of the City Attorney under any circumstances to attend to city litigation outside the State, while I would not refuse on this ground to conduct the litigation at New Orleans, I consider that the volume of city business at present pending in my office is such that this litigation must be placed in other hands. By a Contract made between the City of Austin and A.R. Hishon Esq, the latter has obligated himself to represent the City in Cause No 2292, E.G. Bartholomew, Receiver vs. City of Austin, from the date of said Contract to the final termination of the litigation. Subsequently Mr. Hishon associated Judge Gus Doorn with him in the case. These two Gentlemen have represented the City so far, are thoroughly familiar with all the details of the above mentioned litigation, and have expressed themselves as confident that the City can perfect, and will prevail on appeal in the mandamus case. Mr Hishon does not think that his present Contract with the City obligates him to represent the city also in the mandamus proceedings to collect the Judgement. I, therefore, recommend that the Council, if possible, secure the services of Mr Hishon or Judge Doorn, or both of them to continue to represent the city in the litigation. In addition to the above mentioned Judgments there is also another subsisting and unpaid Judgement against the city, rendered by the Federal Court in Cause No 3625, E.G. Bartholomew, Receiver vs City of Austin. The amount of this latter Judgement with costs and interest accrued to date is $ 27, 416.15. Both these Judgements grew out of a Contract for hydrant rentals between the City and the Water Company. Other claims against the city on the same Contract have accrued since the last Judgement was obtained; and similar claims will continue to accrue until the final expiration of the Contract. Other mandamus suits will no doubt follow in due course. I therefore recommend that the Contract for services of special attorneys be made as to secure to the City the benefit of special Counsel in all litigation at present pending or to be instituted in the matter of this waterworks Controversy. Respectfully, V.L. Brooks City Attorney. Aldermen Hume & Schneider entered the Council Chamber Alderman Stumpff moved that Judge Gus Doorn, who was present, be invited to address the Council which motion prevailed. After remarks by Judge Doorn, Judges Hishon & Cochran were invited to address the Council on the matter before it came. --- Page break --- 692. Alderman Waddox moved the whole matter be referred to a special Committee of 3 for investigation and that they report back to the Council at a meeting to be called for that purpose, which motion was lost by the following vote Yeas Aldermen Crooker, Waddox, Mortimer, Schnumate, 4Nays Aldermen Davis, Kerve, Low, Schneider, Stumpff, Welch 6- Alderman Davis moved that the Council accept the proposition of Messers Dorn, Fisher & Cochran Proposition Alderman Davis moved that the proposition of Messrs of Dorn, Fisher Dorn, Fisher, & Cochran, to assist the City Attorney in the & Cochran matter of appealing the Case to a higher Court, false of accepted Charge, ex cept traveling and other necessary expenses in Case they should have to go to New Orleans, be accepted and that the necessary papers in the matter be prepared by them and submitted to the Council at a meeting to be called for that purpose, which motion prevailed On motion the Council adjourned Jas. A. Johnson City Clerk