Suit by I. T. Goodnight and others against the City of Wellington. Judgment for defendant, and plaintiffs appeal. Affirmed. Conforming to answer to certified questions in 13 S.W.2d 353. R. H. Cocke, of Wellington, for appellants.
This court said that the requirement under Art. 1, § 17 of the Constitution that property not be taken unless for a 'public use' was a similar requirement to that of Art. 8, § 3 that public funds be expended only for 'public purposes.' See also: Coastal States Gas Producing Co. v. Pate, 158 Tex. 171, 309 S.W.2d 828 (1958); Housing Authority of City of Dallas v. Higginbotham, 135 Tex. 158, 143 S.W.2d 79 (s940); Davis v. City of Taylor, 123 Tex. 39, 67 S.W.2d 1033 (1934); Goodnight v. City of Wellington, 118 Tex. 207, 13 S.W.2d 353 (1929). The holding in the Waples cases that the expenditure of public funds to finance party primary elections cannot meet the public purpose test, and that any such expenditure is necessarily proscribed by the Constitution, must be overruled.
Davis v. City of Taylor, 123 Tex. 39, 67 S.W.2d 1033, 1034. See also Goodnight v. City of Wellington, 1929, 118 Tex. 207, 13 S.W.2d 353. This question has been raised in almost all of the urban renewal cases in other states, and it has been held that the tax money spent on the project has been for public purposes.
That which is or is not a public purpose is primarily a question for the law-making body and the court should not and cannot determine to the contrary except in an instance where the legislative determination of the question is palpably and manifestly arbitrary and incorrect. Lytle v. Halff, 75 Tex. 128, 12 S.W. 610; Brown v. City of Galveston, 97 Tex. 1, 75 S.W. 488; Goodnight v. City of Wellington, 118 Tex. 207, 13 S.W.2d 353; McQuillan Mun. Corp., vol. 2, p. 1527, sec. 703. MR. JUSTICE PIERSON delivered the opinion of the court.
It has been established that the Legislature is empowered to define specific institutions that are within the purview of the general language of the constitution. Davis v. City of Taylor, 123 Tex. 39, 67 S.W.2d 1033 (1934); Goodnight v. City of Wellington, 118 Tex. 207, 13 S.W.2d 353 (1929); Davis v. City of Lubbock, 160 Tex. 38, 326 S.W.2d 699 (1959). Since the meaning of the term 'institution of public charity' is a matter which the constitution left to the Legislature to define, it did so by the enactment of Section 22 of Article 7150.
It was stipulated that the lines were being lawfully used by appellant and we think such use was in legal contemplation necessarily for public purposes. Art. 1108, Vernon's Tex.Civ.Stats.; Goodnight v. City of Wellington, 118 Tex. 207, 13 S.W.2d 353; Housing Authority of Dallas v. Higginbotham, 135 Tex. 158, 143 S.W.2d 79, 130 A.L.R. 1053; Arcola Sugar Mills Co. v. Houston Lighting Power Co., Tex. Civ. App. 153 S.W.2d 628, error refused; State v. City of Beaumont, Tex. Civ. App. 161 S.W.2d 344. It will be noted that Art. 1108, supra, as amended by an Act of the Legislature which became effective on May 22, 1937, Vernon's Ann.Civ.St. art. 1108, expressly authorizes any town or city in this State which owns or operates water works, sewers, gas or electric lights, to extend the lines of such systems outside the limits of such towns or cities and to sell water, sewer, gas, and electric light and power privileges or service to any person or corporation outside of the limits of such towns or cities.
It is now well recognized that many of the activities of a city are "proprietary" in nature rather than "governmental." Goodnight v. City of Wellington, 118 Tex. 207, 13 S.W.2d 353; Denton v. Denton Ice Co., supra. And the public interest and public purpose is equally served in the support and maintenance of both kinds of these activities.