Council Proceedings: January 16, 1903

To the Honorable Mayor and City Council:

City of Fort Worth.

I feel great pleasure in being able to report to you that on the 12th day of January, 1903 the case of W. L. Huff vs City of Fort Worth was called for trial, and the trial of the said case was on that day begun and on the next day was submitted to the jury on special issues and their finding was so clearly in favor of the defendant that the court immediately rendered judgment on the said verdict in favor of the city.

I regard this suit as one of great importance to the city in two aspects:

1st. The amount of money which was involved which was the sum of $7325.

2nd. In that the issue was involved and settled so overwhelmingly in favor of the city that no further trouble on that score need be anticipated, to-wit, do the water works dams cause the Clear Fork to overflow more than it would were the dams not there.

In order that you may clearly understand this I copy in this report the Fourth issue as submitted by the court which is as follows, towit.

"Find and state whether or not the damages to crops and grass above mentioned were occasioned by reason or the dams complained of in plaintiff's petition, and in this connection you are instructed that if you believe from the evidence that the rain which produced said overflow was sufficient to have caused the same overflow, if said dams had not been constructed, then you will find that said overflow was not occasioned by said dams.

You are further instructed that the burden is upon the plaintiff to prove, and that by a preponderance or the evidence, that but for said dams said rain would not have produced said overflow, and if she has not done so, you will find that the overflow was not occasioned by said dams."

To this issue the jury answered as follows to-wit:

"Upon issue No. 4 we find the overflow complained of in plaintiff's petition was not occasioned by the dams complained of in plaintiff's petition."

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I will further state that in preparing for this case I was enabled to get evidence which most overwhelmingly showed that the dams do not obstruct the stream in such manner as to cause an overflow substantially larger than would result were the dams not there.

In the preparation of this case most valuable assistance was rendered by the City Engineer, Hawley and his assistants, and I feel that they as well as Capt. A. W. Scoble, Superintendent of the Water Works and William Rea, Chief of Police are entitled to the thanks of the city as well as of myself.

I would further state that I am informed that no appeal will be taken from this judgment and the matter is therefore finally settled.

I would also further report that the case of A. C. Walk vs Texas & Pacific et al, the city being one of the parties defendant, has been continued for the term.

Very respectfully yours,

E.C. Orrick City Attorney

To the Honorable Mayor and City Council of the City of Fort Worth:

Gentlemen:

I have the honor to report to you that the case of John W. Herbert against the City of Fort Worth came on for trial in the Circuit Court of the United States for the Northern District of Texas, sitting at Fort Worth on January 5th, and that on January 7th judgment was rendered against the city for the sum of $40108.09 with interest at the rate of six per cent per annum from that date, said amount was arrived at by calculating the amount of the coupons which remained in suit after non-suit had been taken by the plaintiff as to some of the coupons, with the interest calculated thereon from the date at which the coupons were respectively payable.

On behalf of the city I pleaded amongst other things to the jurisdiction of the Circuit Court of the United States, alleging that a legal fraud was being perpetrated thereon by the pooling of the coupons, which plea was confessed by the plaintiff as to coupons amounting to $33985, and they took a non-suit as to all of said $33985 together with the interest thereon. The coupons included in the said amount nonsuited were substantially as follows to-wit:

Second Series, 1 to 5 inclusive; 17 to 25 inclusive; 30 to 35 inclusive; 38 to 40 inclusive; 87 to 88 inclusive; 95 to 100 inclusive; 129.

Third Series, 8 to 20 inclusive; 61 to 66 inclusive; 72. 98. 99. 148, 149, 150, 183, 185, 189, 192, 194, 195, 196, 199. 200, 203, 210, 220, 221 to 228 inclusive, 252, 253.

Fourth Series, 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10.

Fifth Series, 32, 33, 47, 48, 49, 50, 51, 53, 73. 74, 75, 76, 77, 97, 98, 99 and 100.

Sixth Series, 10, 11, 12, 13, 14, 72 and 74.

Seventh Series, 11 to 16 inclusive; 68, 102, 103 109 to 112 inclusive; 188, 174 to 177 inclusive, 181, 184, 185, 186, 235, 239, 240, 241, 244 to 249 inclusive, 251 to 265 inclusive.

Eighth Series, 103 to 112 inclusive; 159 to 168 inclusive.

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City Waterworks Mortgage Series, 11 to 21 inclusive; 26, 87, 108 to 119 inclusive; 123 to 133 inclusive; 167, 169, 177, 189 to 192 inclusive; 251, 276 to 280 inclusive; 301 to 308 inclusive; 319 to 328 inclusive; 337 to 347 inclusive; 416 to 420 inclusive; 423 to 488 inclusive; 490 to 491 inclusive; 494 to 500 inclusive; 508 to 546 inclusive; 549 to 560 inclusive; 563 to 575 inclusive; 577, 579.

First Series Redemption, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 61, 62, 63, 64, 70, 71, 72, 73, 103, 104, 105, 106, 107, 108, 109, 123, 148, 149, 150, 151.

It will be noticed that in addition to about forty per cent of the coupons appertaining to the Second, Third, Seventh, Eighth and Waterworks Series of Bonds this took out all of the coupons which had been in suit appertaining to the Fourth, Fifth, and Sixth Series of bonds and the First Series Redemption Bonds, and the validity or in validity of those series or bonds was not in issue on the trial.

The court held in substance that the recitals in the bonds were a complete estoppel and that no thing occuring prior to the execution of the bonds upon all the series of bonds in suit except the waterworks bonds and the court with reference to them held that in order to sustain the bonds, that the case of Winston vs City of Fort Worth, Bank vs Mitchell, and Wright vs City of San Antonio would be followed by him, and that he would therefore hold the waterworks bonds valid.

In reference to the matter I deem it proper that I should say:

1st. That I believe the court to be clearly wrong in this holding upon the main principle upon which his decision was based.

2nd. That I believe that the cases followed by the court in order to sustain the waterworks bonds will not be followed by an appellate court, because all of said cases are either wrong in principle or not applicable to the case as now presented by the city by reason of their clear distinctions in law or in fact.

3rd. The main questions in the case were not determined by the court further than that the point on the interest and sinking fund which

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was also raised on the waterworks series of bonds is a principle involved in the Mitchell County case and his holding may be construed as adverse to us on that point, which, of course, constitutes one of the main defenses of the city to the validity of these bonds still leaving many substantial points, however, which I think well taken.

4th. As to the coupons which went out of the case by reason of the non-suit, before anything can be done by the holders of them it will be necessary that a new suit or suits be instituted, and I think that it will be practically impossible for them to get the said coupons into the United States Court and that suits will have to be brought thereon in the State Court. Whether the State Court decision will be more favorable to us than the Federal Court, I cannot now say, but I do say that all of the decisions of the Appellate Courts in the State of Texas which can be construed to be to our detriment are clearly based upon unsound reasoning or a different state of facts, and I believe that our chances of defeating the coupons either in whole or in part ultimately are good.

From the standpoint of your officer, a city attorney, and without presuming to advice you with reference to the advisability as a business measure or otherwise with reference to your future proceedings in regard to the suit recently decided against us in the Federal Court, I would suggest, that a writ of error be taken to the Circuit Court of Appeals of the United States in order that the questions raised may be adjudicated by an Appellate Court and one of last resort, as I think that the said questions are of too much importance to rest content with the decision of the lower court when all of the points raised practically without exception are points upon which no Appellate Court has held against the position taken by the city.

In order to take a writ of error it will be necessary to give a bond, that is, a cost bond, in the sum of fifteen hundred dollars which the Judge has indicated to me as the sum which he would fix, and to that end I would suggest that the city make arrangements with some individual or Surety Company to make the said bond in case the council should think that it is advisable to take out said writ or error.

In order that you may be advised of the result of the judgment