author: POPE, Justice. GREENHILL, Chief Justice, DENTON, Justice,

text:
    TEXAS ANTIQUITIES COMMITTEE et al., Appellants, v. DALLAS COUNTY COMMUNITY COLLEGE DISTRICT, Appellee.
    No. B-6107.
    Supreme Court of Texas.
    July 13, 1977.
    Rehearing Denied July 27, 1977.

      John Hill, Atty. Gen., Austen H. Furse, Asst. Atty. Gen., Austin, for appellant.
    Strasburger, Price, Kelton, Martin & Unis, Patrick F. McGowan, H. P. Kucera, Dallas, Clark, Thomas, Winters & Shapiro, Barry K. Bishop and Mary Joe Carroll, Austin, for appellee.
   POPE, Justice.

Dallas County Community College District filed this suit for injunction against the Texas Antiquities Committee and its members to set aside an order of the Committee denying a permit to demolish three buildings owned by the College District. The trial court rendered judgment for the College District, stating that in its judgment section 6 of the Antiquities Code is both unconstitutional and unconstitutionally applied. This court has jurisdiction by direct appeal. Tex.Rev.Civ.Stat.Ann. art. 1738a (1962); Tex.R.Civ.P. 499a.

Dallas County Community College District came into existence in 1965 as authorized by section 130.005 of the Texas Education Code. Its Board of .Trustees “constitutes a body corporate” which may “acquire and hold real and personal property, sue and be sued,” and has “the exclusive power to manage” the College District’s affairs. Tex.Educ.Code Ann. § 23.26. Acting under its legislative authorization, the College District in 1966 purchased land in downtown Dallas on which there were four buildings; the cost of the purchase was 2,150,000 dollars. The City of Dallas permitted temporary limited use of the three older buildings upon assurance that they would be demolished within three to five years. Plans for the demolition of the three older buildings were announced to the public as early as 1969.

The Board of Trustees of the College met in 1972 and voted to restore the one building that was structurally sound and to demolish the three older buildings so the space could be used for new college facilities. The Board met on April 1,1975, to consider demolition bids, but a group of citizens requested a ten-day delay during which time the group hoped to find funds for rebuilding the three buildings which were set for demolition. The group was unsuccessful in finding any funds, but it reported to the Board that on April 8 the buildings had been placed on the National Register of Historical Buildings. No prior notification was given the College District that an expedited application was being made for inclusion of the buildings in the National Register.

After the College District purchased the land and buildings in 1969 and made its plans for the College’s efficient use of the land, the legislature enacted the Antiquities Code. Tex.Rev.Civ.Stat.Ann. art. 6145-9 (1969). The Antiquities Code provided for an Antiquities Committee consisting of seven members. Tex.Rev.Civ.Stat.Ann. art. 6145-9, § 3 (1969). Section 4 of the Code gives the Antiquities Committee the authority “to determine the site of, and to designate, State Archeological Landmarks . .” Section 10 proscribes any construction on any State Archeological Landmark without first obtaining a permit from the Antiquities Committee. Section 10 is the only provision of the Code which in any way entitles the Committee to grant or deny a permit for the demolition of the buildings. The Antiquities Committee has not designated any of the three buildings at issue as State Archeological Landmarks, but the Committee has denied the College District’s request to demolish the buildings based upon the buildings’ expedited inclusion in the National Register of Historic Sites and Buildings. The Antiquities Code does not give the Antiquities Committee authority over buildings in the National Register; instead, the Code only gives the Committee authority over buildings which the Committee has designated as a State Archeological Landmark. Since the Committee has not designated the buildings as State Archeological Landmarks, the College District does not need the Committee’s permission before demolishing the buildings.

The trial court grounded its judgment upon two separately stated and separately numbered adjudications:

1. Section 6, Article 6145 — 9, V.T.C.S., reading as follows:
Sec. 6. All other sites, objects, buildings, artifacts, implements, and locations of historical, archeological, scientific, or educational interest, including but expressly not limited to, those pertaining to prehistoric and historical American Indian or aboriginal campsites, dwellings, and habitation sites, their artifacts and implements of culture, as well as archeological sites of every character that are located in, on or under the surface of any lands belonging to the State of Texas or by any county, city or political subdivision of the state are hereby declared to be State Archeological Landmarks and are the sole property of the State of Texas and all such sites or items located on private lands within the State of Texas in areas that have been designated as a “State Archeological Landmark” as hereinafter provided, may not be taken, altered, damaged, destroyed, salvaged, or excavated without a permit from, or in violation of the terms of such permit of, the Antiquities Committee,
is unconstitutional and void, and the orders of the Defendants based thereon are unconstitutional and invalid.
2. Plaintiff need not obtain a permit from the Defendants before demolishing the three buildings in question situated on Plaintiff’s El Centro Campus in the City of Dallas, Dallas County, Texas, and bounded by Elm, Austin, Main and Lamar Streets in said city; and the application of the Texas Antiquities Act, Article 6145-9, to these buildings is unconstitutional as applied.

We affirm the trial court judgment and will now examine each of its separate adjudications.

UNCONSTITUTIONALLY VAGUE STATUTE

The first basis of the trial court’s judgment was that section 6 of the Antiquities Code, stated above, was unconstitutionally vague. There has been no contention that the three buildings in question possess archeological, scientific, or educational interest. The Antiquities Committee only contends that the buildings are of “historical interest.” The sole basis for the exercise of the Antiquities Committee’s power over the three buildings is found, if it can be found, in these words of the statute:

Sec. 6. All . . . buildings . and locations of historical ... interest.

The Antiquities Committee, although it has the power, by article 6145-9, section 11, has adopted no rules or standards which state criteria for “buildings . . . and locations of historical . . . interest.” The Antiquities Committee does not contend that section 6 gives any predictable standard or safeguard. Its position is that the law which strikes down statutes because they are vague, overbroad, and uncertain should be overruled. It argues that the power of the legislature to delegate its powers to state boards and commissions should be unlimited so long as there are experts who constitute the membership of the Committee.

There has been called to our attention no case in Texas or elsewhere in which the powers of a state board are more vaguely expressed or less predictable than those permitted by the phrase in question. The word “buildings” comprehends all structures; “historical” includes all of the past; “interest” ranges broadly from public to private concerns and embraces fads and ephemeral fascinations. All unrestorable structures ordinarily hold some nostalgic tug upon someone and may all qualify as “buildings . . . of historical . . . interest.”

Upon the basis of the statute now before us, we are unconvinced that we should renounce the settled law of Texas that the legislature may not delegate its powers without providing some criteria or safeguards. Depending upon the nature of the power, the agency, and the subject matter, varying degrees of specific standards have been required in testing the reasonable breadth of statutes. 1 Sutherland, Statutory Construction, § 4.05 (4th ed. 1975); Jordan v. State Board of Insurance, 160 Tex. 506, 334 S.W.2d 278 (1960). Sound reasons support the rule that some reasonable standard is essential to the constitutionality of statutory delegations of powers to state boards and commissions.

Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. [Footnote omitted.] Second, if arbitrary or discriminatory enforcement is to be prevented, laws must provide explicit standards to those who apply them. A vague law impermis-sibly delegates basic policy matters to policemen, judges, and juries for resolution on ad hoc and subjective basis, with the attended dangers of arbitrary and discriminatory applications. Grayned v. City of Rockford, 408 U.S. 104, 108-109, 92 S.Ct. 2294, 2298-2299, 33 L.Ed.2d 222 (1972).

We adhere to the settled principle that statutory delegations of power may not be accomplished by language so broad and vague that persons “of common intelligence must necessarily guess at its meaning and differ as to its application.” Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926). We are not persuaded that we should overrule or disapprove such cases as Key Western Life Ins. Co. v. State Board of Insurance, 163 Tex. 11, 350 S.W.2d 839 (1961); Lone Star Gas Co. v. Kelly, 140 Tex. 15, 165 S.W.2d 446 (1942); Housing Authority of City of Dallas v. Higginbotham, 135 Tex. 158, 143 S.W.2d 79 (1940); Martinez v. Texas State Board of Medical Examiners, 476 S.W.2d 400 (Tex.Civ.App.1972, writ ref’d n.r.e.), appeal dism., 409 U.S. 1020, 93 S.Ct. 463, 34 L.Ed.2d 312; Commissioners Court of Lubbock County v. Martin, 471 S.W.2d 100, 105 (Tex.Civ.App.1971, writ ref’d n.r.e.); E.S.G. v. State, 447 S.W.2d 225 (Tex.Civ.App.1969, writ ref’d n.r.e.).

Professor Davis concludes that the non-delegation doctrine in federal courts has been less than successful, but he would not abolish all standards. Davis, Administrative Law. Treatise, § 2.16 (1st ed. 1970). Instead, he would substitute administrative standards in the form of published rules and regulations for statutory standards. See Trapp v. Shell Oil Co., 145 Tex. 323, 198 S.W.2d 424 (1947). We have, in this case, no standard or criteria either by statute or rule which affords safeguards for the affected parties.

Unconstitutional Application

The second basis for the trial court’s judgment is that “the application of the Texas Antiquities Act, Article 6145-9, to these buildings is unconstitutional as applied.” We agree with this conclusion. Since the Antiquities Committee is a state agency, the Antiquities Committee’s application of section 6 of the Antiquities Code must be judged by the substantial evidence rule. Railroad Commission v. Shupee, 57 S.W.2d 295 (Tex.Civ.App.1933), aff’d, 123 Tex. 521, 73 S.W.2d 505 (1934). The substantial evidence rule demands that we hold section 6 unconstitutional as applied if the evidence is such that reasonable minds could not have reached the conclusion that the Antiquities Committee must have reached in order to justify its actions. Trapp v. Shell Oil Co., supra; [Railroad Comm.] TremCarr v. Shell Oil Co., 139 Tex. 66, 161 S.W.2d 1022 (1942). We hold that there is no substantial evidence in support of the action of the Antiquities Committee.

There are two reasons for this conclusion. This first one is. that a program to restore the buildings would compel the misuse of public funds that were obtained by approving a bond issue for educational purposes. The college delayed its contract for demolition so that those seeking to save the buildings might come forward with funds necessary to do so. If those funds had been available, the public school money would not have been needed. No source of funds for salvage and restoration is suggested by any of the witnesses, other than the school funds. The school funds were already dedicated and allocated to the College District’s educational purposes. The testimony shows that the large sums of money required to restore the buildings would exhaust the College funds essential to its authorized educational purposes. Restoration of the buildings would also require the reconstruction of five times more space than is needed for educational purposes. The Antiquities Committee recognized this fact. A witness for the Committee stated that funds might be granted by the National Park Service provided the buildings are usable, but not if they are simply restored to be exhibited as old buildings. An architect testifying for the Committee expressed the opinion that “the only source I know of for the money would be . the Community College . .” The President of the College said that the public would be considerably upset if it thought there was a possibility of diverting school funds to the restoration for non-educational purposes. Upon the basis of this kind of evidence from both those who favored and opposed the restoration of the buildings, the trial court quite properly concluded that the Act was unconstitutionally applied to a situation in which property and funds committed to a public trust for the benefit of the people in the school district would be arbitrarily diverted to a wholly different purpose.

The second reason for our decision is that the buildings are incapable of restoration except upon an unreasonable expenditure of money. The inferior materials used in the original construction of the buildings requires complete reconstruction from the foundation up and at a cost greater than original new construction. The engineering and architectural evidence is that the only way to bring the buildings up to code standards or to save them is to rebuild them. Even the foundations would have to be rebuilt. The cost of rebuilding all three buildings would be in excess of 10,500,000 dollars. There is danger of collapse of the outside walls if reconstruction is undertaken. Estimates for the cost of reconstruction range from thirty-five dollars to eighty-one dollars per square foot. One witness for the Antiquities Committee said that anything can be built if you construct a building out of money, but the reconstruction would cost more than new construction. He stated that the diversion of the College District’s funds from education to-the preservation of the three buildings presented an unsolvable conflict. Another witness for the Antiquities Committee suggested that the solution to the construction problem was to gut the buildings, use the facades as curtain walls, and put a new structural frame inside. Sandstone and brick have been falling from the buildings since 1967. Both the sandstone and the windowsills have now been purposely chiseled away from the outside of the buildings to avoid their falling on people in the streets below. Of three hundred core samples taken from the building, all came out as dust, chips, or loose bricks. The buildings have already outlasted by more than forty years the time for which they were designed. The exterior walls support the floor load. One building, eight stories high, uses wood columns. All three buildings are at least nine times below the code requirements.

The only use for the buildings suggested by the Antiquities Committee, even after the costly rebuilding would be as commercial office space. The buildings cannot be made usable for educational purposes. Classrooms with many occupants, books, and furniture would impose weight loads that the buildings could not bear even if restored. If usable as commercial rented space, there would be a continuing financial burden to the College District. For example, one building could be restored at a cost of 6,000,000 dollars and then rented for commercial purposes with a maximum return of no more than 2.98 percent. But leasing for business purposes would be difficult because the commercial offices would be in the midst of an inappropriate academic community. That part of downtown Dallas already has an eighteen to twenty percent vacancy rate for its buildings. From this record, there is no substantial evidence that the buildings, even after reconstruction and renovation could be usable for educational purposes.

The Antiquities Committee confronts the trial court’s judgment with the contention that the College District, as a political subdivision of the state is subordinate to the powers of the Antiquities Committee; has no contract or property rights which are protectable against the Committee’s superi- or powers. We need not in this case, decide which of two state agencies is charged with the “higher” trust. In this case that question would cast the educational needs of the state’s citizens against the preservation of the 1910 buildings described above. The Committee, relying upon the language of Hunter v. Pittsburgh, 207 U.S. 161, 28 S.Ct. 40, 52 L.Ed. 151 (1907), argues that “the State is supreme, and its legislative body . may do as it will, unrestrained by any provision of the Constitution of the United States.” That expression of statism satisfies neither the protections of the United States Constitution or the Texas Constitution.

The United States Supreme Court has closely restricted Hunter’s broad and loose language in Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960). Justice Frankfurter, writing for the court in Gomillion, circumscribed its dicta by an analysis of the matters before the court in Hunter and wrote:

In short, the cases that have come before this Court regarding legislation by States dealing with their political subdivisions fall into two classes: (1) those in which it is claimed that the State, by virtue of the prohibition against impairment of the obligation of contract (Art. I, § 10) and of the Due Process Clause of the Fourteenth Amendment, is without power to extinguish, or alter the boundaries of, an existing municipality; and (2) in which it is claimed that the State has no power to change the identity of a municipality whereby citizens of a pre-ex-isting municipality suffer serious economic disadvantage. 364 U.S. 342-343, 81 S.Ct. 128.

In a society when so many rights are subject to the regulation of administrative agencies, Gomillion brought the “plenary power” doctrine of Hunter under appropriate limitations, stating:

a correct reading of the seemingly unconfined dicta of Hunter and kindred cases is not that the State has plenary power to manipulate in every conceivable way, for every conceivable purpose, the affairs of its municipal corporations, but rather that the State’s authority is unrestrained by the particular prohibitions of the Constitution considered in those cases.

The Texas law has developed in a similar fashion. One agency of the state does not possess powers to divest vested property and contract rights of another state agency “unrestrained by the particular prohibitions of the Constitütion.” In Milam County v. Bateman, 54 Tex. 163 (1880), the legislature granted land to the county for public school purposes. Subsequently, the legislature took this land from the county and transferred it to private individuals. This court held that the legislature could not do this. The legislature’s extensive control over its subdivisions’ political rights was recognized, but it was held that a subdivision’s property rights, “are protected by the same constitutional guarantees which shield the property of individuals.” 54 Tex. at 166. Milam County went on to state that, “the purpose for which the property was originally acquired shall, as far as circumstances will admit, be kept in view; and that it shall not arbitrarily be diverted as in the case before us, to private parties and to a wholly different purpose.” 54 Tex. at 166.

Love v. City of Dallas, 120 Tex. 351, 40 S.W.2d 20 (1931) faced the issue whether the legislature had plenary power over a school district’s property and functions. The question in Love was whether a school district must, as the legislature had enacted, use its funds to educate non-residents of the local district. Writing for the court, Chief Justice Cureton rejected the idea that the legislature has plenary powers over its creature when the school district holds its property as trustee for the public. This court held, instead, that the school district’s property must be used for the purposes for which it was acquired. This court stated that the school district:

has no contract right to exist as a corporation, but the public that it represents has a vested right in the municipal property acquired for its benefit, and is entitled to demand that such property be applied to its uses. 40 S.W.2d at 27.

Love cited with approval the principle enunciated in 24 Ruling Case Law, Schools §§ 45-47 (1919), that school funds and property are trust funds for educational purposes; consequently, they should not:

be diverted to other even though closely kindred uses, no matter how meritorious the project may appear to be either in its practical or ethical or sentimental aspects. Even the legislature, itself, the fountain head of matters educational, cannot divert school funds to other uses. 40 S.W.2d at 27.

Since the Antiquities Committee’s application of section 6 diverts the buildings to uses other than educational purposes, Love demands that we hold section 6 unconstitutional as applied.

On the basis of the trial court’s findings that section 6 of the Antiquities Code is both unconstitutional and unconstitutionally applied, we affirm the trial court judgment.

GREENHILL, C. J., concurs with an opinion.

DENTON, J., dissents in an opinion in which DANIEL, JOHNSON and YAR-BROUGH, JJ., join.

GREENHILL, Chief Justice,

concurring.

I agree that the judgment, of the trial court should be affirmed; and, therefore, I concur in the judgment of the Court.

It clearly appears to me that this particular determination of the Antiquities Committee is not supported by substantial evidence. Stated differently, for the reasons set out in the Court’s opinion, the action of the Board is arbitrary and without a sound basis.

My conclusion is based on the application of the substantial evidence rule and not upon constitutional grounds. When a controversy may be resolved on a non-constitutional ground, then the court should rest its decision on that ground, and should not decide the constitutional questions presented. Neese v. Southern Railway Co., 350 U.S. 77, 76 S.Ct. 131, 100 L.Ed. 60 (1955); Peters v. Hobby, 349 U.S. 331, 75 S.Ct. 790, 99 L.Ed. 1129 (1955). I therefore, do not reach any constitutional question.

DENTON, Justice,

dissenting.

I respectfully dissent. Four of my brothers hold that section six of the Antiquities Code is too vague, so it violates the Due Process Clause of both the State and Federal Constitutions. I disagree; the College District does not have standing to assert deprivation of property without due process, and under what I perceive as the proper scope of review in this case there exists no justiciable controversy.

My first disagreement with the plurality is in the application of. the Fourteenth Amendment and Art. I, § 19 of the Texas Constitution:

nor shall any State deprive any person of life, liberty, or property, without due process of law . ...

U.S.Const. Amend. XIV, § 1.

No citizen of this State shall be deprived of . . . property . . . except by due course of law .

Tex.Const. Art. I, § 19. Essential to a holding that the College District has not been afforded due process is a holding that the District is a person, or a citizen. There exists no authority to support the holding, implicit in the plurality opinion, that the College District is a “person,” and I can think of no rationale for such a holding.

The College District is a body politic, or political subdivision of the State of Texas, created pursuant to the legislative authority of article 2815h of the civil statutes. The College District is authorized to levy taxes, acquire title in its own name to real and personal property, and generally to administer such property for educational purposes. It is not given the right to vote, the freedoms of speech, press, and religion, the right to counsel, or any other right enjoyed by people under the Constitution. This is because a political subdivision is not now and never has been a “person” in any sense of the term. It was early established by this Court that a public political subdivision is merely an agent of the State in the administration of its power. In Bass v. Fontelroy, 11 Tex. 698 (1854) the Legislature had repealed the charter of the City of Brownsville; the repeal was challenged as an unlawful taking of vested property rights without just compensation. Justice Lipscomb, denying the City’s claim, stated that:

The establishment of counties, their boundaries, courthouses, jails, bridges, ferries, are all matters of public policy, dependent on the legislative will for their creation; and . . . are equally dependent upon the same for their continued existence.

11 Tex. at 705. And in Guadalupe County v. Wilson County, 58 Tex. 228 (1882), the Legislature in creating Guadalupe County had taken portions of Wilson County without compensation. The ensuing boundary dispute was held a political question, resolved beyond judicial interference by the Act creating Guadalupe County and defining its boundaries to the exclusion of Wilson County. The agency concept of municipal corporation law was specifically relied upon in City of Victoria v. Victoria County, 100 Tex. 438, 101 S.W. 190 (1907), where this Court, in upholding a legislative transfer of title from the county to the city stated:

The principle is that insofar as a corporation strictly municipal or quasi-municipal holds property for the purposes of government, it holds merely as a governmental agency, and it is within the power of the Legislature of the State to confer that agency upon some other proper governmental instrumentality.

100 Tex. at 451, 101 S.W. at 196. See also, Herget, The Missing Power of Local Government, 62 Va.L.Rev. 999 (1976).

Decisions of the United States Supreme Court establish that political subdivisions, as agencies of the State in the exercise of governmental powers, have no rights assertible under the Federal Constitution against the State. The famous case of Trustees of Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518, 4 L.Ed. 629 (1819), established that public corporations, as distinguished from private business corporations, enjoy no protection assertible under the contract clause of the Federal Constitution against legislative alteration of organic charters. See Campbell, John Marshall, The Virginia Political Economy, and the Dartmouth College Decision, 19 Am.J.Legal Hist. 40 (1975). Cases following Dartmouth College have reiterated that the charter of a political subdivision, being a mere delegation of State authority, is subject to alteration or revocation at the will of the Legislature. Hunter v. City of Pittsburgh, 207 U.S. 161, 28 S.Ct. 40, 52 L.Ed. 151 (1907); Covington v. Kentucky, 173 U.S. 231, 19 S.Ct. 383, 43 L.Ed. 679 (1899); Meriwether v. Garrett, 102 U.S. 472, 26 L.Ed. 197 (1880); East Hartford v. Hartford Bridge Co., 51 U.S. (10 How.) 511, 13 L.Ed. 518 (1850). A municipality thus was denied the power to assert denial of due process of law in City of Trenton v. New Jersey, 262 U.S. 182, 43 S.Ct. 534, 67 L.Ed. 937 (1923). And Mr. Justice Cardozo in Williams v. Mayor of Baltimore, 289 U.S. 36, 53 S.Ct. 431, 77 L.Ed. 1015 (1933) made it clear that no protection is offered a political subdivision by the Fourteenth Amendment. To the Supreme Court, a political subdivision simply is not a person; and is not, therefore, entitled to due process. See Schulz, The Effect of the Contract Clause and the Fourteenth Amendment upon the Power of the States to Control Municipal Corporations, 36 Mich.L.Rev. 385 (1938).

The plurality cites Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960) as providing the necessary exception to the rule. In that case voters, that is People of Tuskeegee, Alabama argued that a legislative redistricting of the city deprived them of the voting rights under the Fifteenth Amendment. There were no “rights” of the city, a political subdivision, before the Court. The plurality quote the following from the Gomillion opinion:

[A] correct reading of the seemingly unconfined dicta of Hunter and kindred cases is . that the State's authority is unrestrained by the particular prohibitions of the Constitution considered in those cases.

364 U.S. at 344, 81 S.Ct. at 128 (emphasis mine). As stated above, City of Trenton v. New Jersey and Williams v. Mayor of Baltimore, supra, two of “those cases” referred to in Gomillion, involved claims under the Fourteenth Amendment. To reiterate, Gomillion involved the rights of private persons ; it has no application to the controversy at hand. The plurality cite no case in which a political subdivision has been held entitled to due process and there is none.

This Court has, on two occasions, enunciated the proper scope of judicial review over legislative control of political subdivisions. Far from holding that political subdivisions are entitled to due process of law, this Court has stated that the only protection is against arbitrary diversion of property held by political subdivisions in such a fashion that the public would be deprived of the use of such property. The only judicial question is arbitrariness vel non of the legislative action.

In Milam County v. Bateman, 54 Tex. 163 (1880), the Court commented:

Counties in their relation toward the state may be viewed in a two-fold aspect: one, which pertains to their political rights and privileges; the other, to their rights of property.

54 Tex. at 165. Concerning “political rights and privileges,” including the right of organic existence, the Court noted that a county has no assertible rights against the State; the latter was said to be in complete control. Different considerations were deemed applicable as to “rights of property.”

A different principle, however, obtains as regards the rights of counties to property which they may acquire.
If given for a specific object, the state may very properly, as in the instance under consideration of our school lands granted to counties, exercise such supervision and control over the actions of the counties as to compel the proper execution of the trust, or prevent its being defeated; but it is believed that this control, unless by consent of the county, should be subject to the restriction, that the purpose for which the property was originally acquired shall, as far as circumstances will admit, be kept in view; and that it shall not arbitrarily be diverted to private parties and to a wholly different purpose.

54 Tex. at 165-66 (emphasis mine).

The quoted portions of the Milam County opinion were genesis to this Court’s consideration of legislative power in Love v. City of Dallas, 120 Tex. 351, 40 S.W.2d 20 (1931). In Love the Court was concerned with whether the Legislature could impose upon the City the obligation to employ City funds for the education of nonresident children. It was determined that such an imposition would violate Tex.Const. Art. VII, § 3, in that it would divert special school funds. In spite of such holding the Court went on to discuss the legislative power over its subdivisions in general:

The rule is that the ownership of [local government] property is in the local district or municipality for the benefit of the public, within the boundaries of the district or municipality. The Legislature may control or dispose of the property without the consent of the local bodies, so long as it does not apply it in contravention of the trust.

120 Tex. at 367, 40 S.W.2d at 27 (emphasis mine).

The limitations upon legislative power in Milam County and Love are founded upon sound reason. Local government property is, in principle and in fact, trust res conveniently held and managed by local officials for the benefit of the local public. Where, as here, such property has been acquired with governmental funds pursuant to specific approval of the local voting public, there arises special reason for enforcing the trust; justifiably, the public has a reliance interest in the disposition of property acquired for and devoted to a designated use. Milam County instructs the Legislature in its supervision of local government property to keep in view “the purpose for which the property was originally acquired,” and prohibits arbitrary diversion to a “wholly different purpose.” Love goes further to say that Legislative power over local government property is regulatory only; while the entity is subject to legislative destruction, the property held by that entity remains in the public trust. On the other hand, neither Milam County nor Love can be considered authority for the proposition that local government entities have judicial standing to challenge legislative regulation of property in the same manner or to the same degree as owners of private property. The judicial touchstone is arbitrariness. Management of property held in the public trust is a matter of legislative concern. Cf., Note, Proprietary Duties of the Federal Government Under the Public Land Trust, 75 Mich.L.Rev. 586, 592-94 (1977).

Turning now specifically to section six of the Antiquities Code, it becomes apparent to me that it effects no diversion of College District property in a manner prohibited by Milam County and Love. The mere fact that “State archeological landmarks” are declared to be the “sole property of the State” gives rise to no justiciable complaint on the part of the local government entity in which title was theretofore reposed. The interest protected by Milam County and Love is the public’s interest in use of the property, not the local entity’s interest in nominative title. Change in nominative title effects no change in use. The nominative title to public property is a patently political matter to which the words of Justice Bonner in Milam County are peculiarly applicable: “If [the State] could not exercise such power over the delegated political rights and privileges of . subdivisions of state governmental authority, we might have a system of petty discordant governments within a government, without unity of design or action.” 54 Tex. at 165. See also Chester County Institution District v. Commonwealth, 341 Pa. 49, 17 A.2d 212 (1941). And although the grant of power to the Antiquities Committee to prohibit or regulate alteration, damage or destruction of an “archeological landmark” indirectly might effectuate some change in a use, the legislative decision to vest power to make that change in a committee of seven experts cannot be considered arbitrary. It is as I have said, only arbitrary regulation of local government property which gives rise to a justiciable interest on the part of local government officials. In the instant case, the College District claims that the buildings cannot compatibly be used for both educational and cultural (historical preservation) purposes. It might indeed be a justifiable implication from the Antiquities Committee’s action that the educational function of the College District would be promoted rather than impaired by the requirement that the cultural integrity of school buildings be maintained. But making such an implication is not a judicial function. It is not the duty of the courts in a case of this nature to view structures, deemed by one State agency as culturally insignificant and by another as worthy of preservation, and decide which is in the right. This is especially true where the Legislature has granted the other the power to preserve without granting the one the right to question. Firemen’s & Policemen’s Civil Service Comm’n v. Kennedy, 514 S.W.2d 237 (Tex.1974). The Legislature, in section six of the Antiquities Code, has delegated authority to the Antiquities Committee to protect that which it deems worthy of protection. The Antiquities Committee is made a final checkpoint prior to possible effacement of property deemed by the Legislature to be of intangible value. The legislative decision that property held by its political subdivisions may not be altered when such alteration would efface the property’s historical integrity is not a decision with which the courts should interfere. If the plurality intends to hold, under Love v. City of Dallas that historical preservation is such a wholly incompatible use of property acquired for educational purposes so as to constitute an unlawful diversion of a public trust, it would be difficult to discern any situation in which historical preservation would not be antipathetic to the public trust. I can see no operative distinction between property acquired for educational purposes and property acquired for, say, a City Hall, a courthouse or a park. Indeed, such a holding is tantamount to a judicial declaration that no property held by a political subdivision can be protected under the legislative banner of historical preservation unless the property originally was acquired for its aesthetic characteristics, or unless the Legislature takes the property by exercise of eminent domain. I would hold that restriction of the use of College District property in order to protect that property's aesthetic integrity does not deprive the local public of the benefit of the property to the degree prohibited by Love and Milam County. In imposing a higher, general trust upon property held by political subdivisions in the public trust, the Legislature acted within its authority. When such is the case, the remedy lies in the legislative process, not in the courts. See Henkin, Is There a “Political Question” Doctrine ? 85 Yale L.J. 597 (1976). This is a dispute between different departments of the same branch of government. The “boss” of that branch, the Legislature, has decided that one department’s power exceeds the other’s. As long as no specific constitutional provision is violated, and absent arbitrary legislative action, the courts cannot and should not interfere with the manner in which the Legislature conducts its affairs.

I would not in this case reach the questions of vagueness discussed by four members of the Court. Such questions should, and will be raised at such time as this Court is faced with governmental interference with private property under the banner of historical preservation. But in reply I do point out that this Court very recently stated that the protection of cultural property may indeed be a duty of the Legislature. San Antonio Conservation Soc’y, Inc. v. City of San Antonio, 455 S.W.2d 743, 748 (1970). Not every historical structure worthy of protection can be an Alamo; vagueness in describing cultural property may to a degree be an inherent difficulty.

I would reverse the district court’s judgment and dissolve the injunction.

DANIEL, JOHNSON and YAR-BROUGH, JJ., join in this dissent.

      . Sec. 10. The Antiquities Committee shall be authorized to issue permits to other state agencies or institutions and to qualified private institutions, companies, or individuals for the taking, salvaging, excavating, restoring, or the conducting of scientific or educational studies at, in, or on State Archeological Landmarks as in the opinion of the Antiquities Committee would be in the best interest of the State of Texas. Such permits may provide for the retaining by the permittee of a portion of any recovery as set out for contracting parties under Section 9 hereof. Such permit shall provide for the termination of any rights in the permittee thereunder upon the violation of any of the terms thereof and to be drafted in compliance with forms approved by the Attorney General. All such permits shall specifically provide for the location, nature of the activity, and time period covered thereby. No person, firm, or corporation shall conduct any such operations on any State Archeological Landmark herein described without first obtaining and having in his or its possession such permit at the site of such operation, or conduct such operations in violation of the provisions of such permit.

       The Court stated:
      Since the Constitution, art. 7, sec. 3, contemplates that districts shall be organized and taxes levied for the education of scholas-tics within the districts, it is obvious that the education of nonresident scholastics is not within their ordinary functions as quasi-municipal corporations; and under the authorities cited the Legislature is without power to impose such an obligation on them, without just compensation.
      120 Tex. at 367, 40 S.W.2d at 27.


source: Caselaw Access Project

author: GREENHILL, Chief Justice.

license: Public Domain

text:
    Judith Ellen LAMPHERE, Relator, v. Oswin CHRISMAN, Judge, Domestic Relations Court Number Four of Dallas County, Texas, Respondent.
    No. B-6783.
    Supreme Court of Texas.
    July 27, 1977.

      Berman, Fichtner & Mitchell, Jay S. Fichtner, Toby L. Gerber, Dallas, for relator.
    Laurel A. Bates, Ronald E. Massingill, Dallas, for respondent.
   GREENHILL, Chief Justice.

This original mandamus proceeding arises from a controversy between Judith Lam-phere and Thomas Lamphere over the custody of their seven-year old daughter, Julie Lamphere. Our respondent, the Honorable Oswin Chrisman, Judge of the Domestic Relations Court Number Four of Dallas County, has denied Judith’s application for a writ of habeas corpus for the return of Julie, who is living with her father. Judith thereupon instituted this action to compel Judge Chrisman to grant the writ of habeas corpus. Because we believe that Judge Chrisman’s order below is in conflict with Section 14.10 of the Texas Family Code, we conditionally grant the requested writ of mandamus.

In September of 1970, the Lampheres’ marriage was dissolved by a judgment rendered by the Circuit Court of Saint Louis County, Missouri. The judgment awarded Judith the permanent care, custody and control of Julie; and reasonable visitation rights were given to Thomas. It is undisputed that the Missouri court had jurisdiction over the Lampheres and that the judgment of divorce and custody has never been modified.

In November of 1974, Judith and Thomas executed an agreement whereby Thomas was to have the care of Julie at his home in Dallas, Texas. Judith remained in St. Louis, but she was to have the right to custody at any time she elected, provided that Thomas was given seven-days’ written notice. The agreement was terminable at the will of Judith on fifteen-days’ written notice, and it expressly provided that it in no way altered the Missouri court’s award of custody to Judith.

Thomas then took Julie to Dallas, and she has lived there with him until the present time. Her stay in Dallas, however, has not been uninterrupted. In the summer of 1975, she visited her mother in St. Louis for two months. Similarly, Julie lived with Judith in St. Louis for two months in the summer of 1976. Julie also spent six days with her mother in Missouri in April of 1977.

On April 19, 1977, Thomas filed suit in the Domestic Relations Court Number Four of Dallas County and sought his appointment as managing conservator of Julie. Judith was served with process in St. Louis, and she then filed a special appearance in the Texas court. She also sought a writ of habeas corpus for the return of the custody of Julie pursuant to the Missouri court decree. After a hearing, the trial court overruled Judith’s plea to the jurisdiction, denied her application for the writ of habeas corpus, and appointed Thomas temporary managing conservator.

Judith then filed this action, which asks this Court to direct the trial judge to issue the writ of habeas corpus and thereby enforce the Missouri court custody decree. At the outset, we note that we have jurisdiction to mandamus the judge of a court of domestic relations. Texas Revised Civil Statutes Annotated Article 1733; McHone v. Gibbs, 469 S.W.2d 789 (Tex.1971).

The habeas corpus procedure in child custody cases is governed by Section 14.10 of the Texas Family Code. That section provides in relevant part:

(a) If the right to possession of a child is presently governed by a court order, the court in a habeas corpus proceeding involving the right to possession of the child shall compel return of the child to the relator if and only if it finds that the relator is presently entitled to possession by virtue of the court order.
(b) The court shall disregard any cross action or motion pending for modification of the decree determining managing con-servatorship, possession, or support of or access to the child unless it finds that the previous order was granted by a court of another state or nation and that:
(1) the court did not have jurisdiction of the parties; or
(2) the child has been within the state for at least 12 months immediately preceding the filing of the petition for the writ.
* * * * * *

We have held that the Legislature, by enacting Section 14.10, intended to change the rule that the right to possession of the child may be readjudicated in a hearing on an application for a writ of habeas corpus. The general rule now is that the writ should be granted when the relator shows that he or she is entitled to custody of the child by virtue of a valid and subsisting court order. The right to possession may not be relitigated in the habeas corpus hearing; the relator is entitled to an issuance of the writ immediately on a showing of his or her right to custody. Further, mandamus is a proper remedy to compel enforcement of the relator’s right to custody. McElreath v. Stewart, 545 S.W.2d 955 (Tex.1977); Standley v. Stewart, 539 S.W.2d 882 (Tex.1976). For these purposes, we recognize no differences between valid custody orders of our state and those of sister states beyond the distinctions set forth in the statute. See Russell v. McMurtrey, 526 S.W.2d 270 (Tex.Civ.App.1975, writ ref’d n. r. e.). Therefore, the writ of habeas corpus in this case should have been granted when Judith proved her right to custody under the Missouri court judgment, unless it was . proper to relitigate the right of possession under Section 14.10(b).

Thomas argues that the trial court properly redetermined the right to possession because Judith’s custody order is from Missouri and because “the child has been within the state [Texas] for at least 12 months immediately preceding the filing of the petition for the writ.” Section 14.10(b)(2). We disagree. The uncontroverted evidence shows that Julie was with her mother in Missouri for two months in the summer of 1976 and for six days in the spring of 1977. These periods were within the twelve months immediately preceding the filing of the petition for the writ; so the exception of Section 14.10(b)(2) does not apply to this case. Nor does the exception of Section 14.10(b)(1) apply, because it is undisputed that the Missouri court had jurisdiction of the parties. Since neither 14.10(b) exception is applicable, the general rule of the subsection controls; and the trial court, in deciding Judith’s entitlement to the writ of habeas corpus, should have disregarded Thomas’ request for his appointment as managing conservator.

Thomas argues that we here apply a too literal interpretation to Section 14.10(b). He says that the subsection should be interpreted to mean that the child’s residence or domicile shall have been in the State of Texas for the twelve months immediately preceding the filing of the habeas corpus application. We cannot subscribe to that view. If the Legislature had meant for residence or domicile to be determinative here, it certainly could have used those terms in phrasing Section 14.10(b)(2). Furthermore, an inquiry into a child’s residence or domicile would often raise difficult questions of dubious relevance to the question of whether the foreign custody decree should be immediately enforced, especially when the parents of the child reside in different states. We prefer to apply what we perceive to be the plain meaning of the statute, and we hold that the child must be physically present within the state for the required length of time before the exception of Section 14.10(b)(2) may be invoked.

Thomas argues that it would be absurd to require the child’s presence to be continuous and uninterrupted for the entire twelve-month period. We are inclined to agree that such a strict construction might lead to absurd results. We do not believe the Legislature intended that a child’s mere absence from this state for a few hours or days should prevent a Texas court’s redetermination of the right to possession in a habeas corpus proceeding. For example, if a child were sent to a summer camp in another state, or accompanied her father on an ordinary vacation trip in another state, such a temporary absence would not automatically terminate the time period in Texas. Counsel for Judith concedes this. On the other hand, the Legislature could have stated, had it so intended, that the child’s presence should be for the principal part of the preceding twelve-month period. See, e. g., Section 11.06(b). Despite the absence of such language, we believe that the Legislature did not intend that the child’s presence in Texas be continuous and uninterrupted for the entire twelve-month period. We hold that the child must be present in Texas for the period specified by Section 14.-10(b)(2), except for absences which are so brief as to be insignificant. This question is one of law that the court should decide in view of the facts and circumstances of the particular case.

In this case we hold that Julie’s absence from Texas for two months and six days was more than an insignificant visit beyond our borders. In making this holding, we have considered the relative length of time involved; and we also deem it important that when Julie was outside of Texas, she was living with the parent who here seeks custody. The exception of Section 14.10(b)(2) therefore did not come into play, and Judith was entitled to the issuance of the writ without the relitigation of the right to possession question.

Finally, we emphasize that our holding here does not dispose of any of the issues raised by Thomas’ suit for his appointment as managing conservator. We here hold only that Section 14.10 requires that the habeas corpus writ should be granted immediately on the relator’s showing of his or her right to possession under an existing court order. Section 14.10 does not require the trial court to dismiss pending suits or motions for change of custody; it requires only that these matters be disregarded until such time as the application for the writ of habeas corpus is disposed of. Therefore, after the writ is either issued or denied, the trial court is free to continue with the disposition of any suits or motions for change of custody. The jurisdictional or other questions raised in the change of custody suit may then be considered on appeal from the final judgment in that suit. To the extent that the holding in In re Kamont, 537 S.W.2d 86 (Tex.Civ.App.1976, writ ref’d n. r. e.) may conflict with our views, it is disapproved.

It is assumed that Judge Chrisman will vacate his order denying Judith’s application for habeas corpus and that he will issue the requested writ. A writ of mandamus will issue only if he declines to do so.

Pursuant to Rule 515, Texas Rules of Civil Procedure, no motion for rehearing will be entertained.

      . Vernon’s Texas Codes Annotated, Family Code Section 14.10. Ail statutory references herein are to Vernon’s Texas Family Code Annotated, unless otherwise indicated.


author: NYE, Chief Justice.

text:
    The CITY OF INGLESIDE, Appellant, v. T. R. STEWART, d/b/a L & S Air Conditioning Co., Inc., Appellee.
    No. 1111.
    Court of Civil Appeals of Texas, Corpus Christi.
    March 31, 1977.
    Rehearing Denied June 30, 1977.
    Second Rehearing Aug. 31, 1977.

      Bruce D. Viles, Wood, Burney, Nesbitt & Ryan, Corpus Christi, for appellant.
    Mark H. Giles, Stone, .Berryman & Giles, Corpus Christi, for appellee.
   OPINION

NYE, Chief Justice.

This is an appeal from a judgment against the City of Ingleside which awarded $4,700.00 and interest to L & S Air Conditioning Company, Inc. The suit was brought by the Air Conditioning Company to recover for the installation of the heating and air conditioning system in the criminal justice facility in Ingleside, Texas. Trial was to the court. From this judgment the City has perfected its appeal to this Court.

In August of 1970, the City sustained considerable damage to its facilities as a result of Hurricane Celia. One of the buildings damaged was the City Hall. It was decided by the City Council to rebuild and remodel this structure and turn it into a criminal justice facility. This rebuilt facility was to house the Municipal Court, the Police Department and offices for the Department of Public Safety. In connection with this rebuilding project, Charles Bellah, a Corpus Christi architect and engineer was hired to design several structures including the subject Criminal Justice Building. The funding for the construction of the building was obtained through the Celia relief fund and a matching grant from the Texas Criminal Justice Council in the total amount of $48,375.00. Bids were solicited for the project and the construction contract was awarded to Sherrahl D. Smith for the exact amount. Subsequently, Smith, subcontracted the heating and air conditioning work to the appellees for $5,075.00.

In late August or early September of 1971, the City became dissatisfied with the progress being made on the facility by contractor Smith. Smith had already received $17,186.28 in draws, and was requesting additional funds, when it was determined that the subcontractors were not being paid. It was then the joint opinion of the City’s Mayor, Jerry Storms, and the Project Architect and Engineer, Charles Bellah, that contractor Smith was not entitled to any additional draws from the City for the project, at least at that time. On recommendation of the architect, the City instituted a dual payee check system to insure that the various laborers and subcontractors would be paid. Under this dual-payee system, each check drawn from the Criminal Justice Facility fund was made out to contractor Smith and the laborer or subcontractor to be paid. The contractor would periodically come to the City’s offices, endorse the checks, and the City would then have the checks either picked up by the appropriate payees, or delivered to their places of business. This procedure was maintained until December of 1971, when the fund became virtually exhausted.

The appellees began working on the building in October of 1971, after receiving a phone call from someone purporting to be Rick Diegel, the then mayor pro tern of the City, stating that it was time to install the heating and air conditioning units. On October 31, 1971, appellees prepared an interim bill for $3,187.00 addressed to Diegel at the City Hall. This bill was not paid. On December 1, 1971, the appellees completed the work on the building and prepared a final billing in the amount of their contract ($5,075.00), and addressed the bill to the same Rick Diegel at Ingleside City Hall. This bill was likewise not paid. In April 1972, after the City had commenced using the facilities, one of the fans in the air conditioning system malfunctioned. The City contacted the appellee Air Conditioning Company and requested repairs to be made. The appellee company removed the fan from the building, but because they had not been paid for the job, refused to repair or return the fan.

The City never paid appellee for its work. The appellee did not choose to collect from contractor Smith, choosing instead to sue the City. The case was tried to the court without a jury. At the conclusion of the trial, judgment was rendered for appellees in the amount of $4,700.00 plus pre-judgment interest at 6% from December 1, 1971 through January 26, 1976, and post-judgment interest at a rate of 9%. In response to a request by the City, the trial judge made extensive findings of fact and conclusions of law, all of which are germane to the City’s points of error presented by this appeal.

The City in points of error 1-23 complains of the findings of fact made by the trial court in support of its judgment that appellees are entitled to recover $4,700.00 based on quantum meruit. This Court in reviewing no evidence and insufficient evidence points of error based on the trial court’s findings of fact must use the same test for factual sufficiency as is applied to jury answers. V. K. Hall v. Villarreal Development Corporation, 522 S.W.2d 195 (Tex.Sup.1975). Therefore, in considering the City’s “no evidence” points of error, we must look only to that evidence which supports the trial court’s findings and disregard all other evidence to the contrary. In reviewing the City’s “insufficient evidence” points of error, we must consider and weigh all the evidence in the record and set aside the trial court’s verdict if we conclude that the evidence is insufficient to support the trial court’s findings. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). Calvert “No Evidence and Insufficient Evidence Points of Error”, 38 Tex.L.Rev. 359 (1960).

The most recent definition of quantum meruit was stated in Black Lake Pipe Line Company v. Union Construction Company, Inc., 538 S.W.2d 80 (Tex.Sup.1976). The court said that “. . . the right to recover in quantum meruit is based upon a promise implied by law to pay for beneficial services rendered and knowingly accepted.” See Davidson v. Clearman, 391 S.W.2d 48 (Tex.Sup.1965); McDaniel v. Tucker, 520 S.W.2d 543 (Tex.Civ.App.—Corpus Christi 1975, no writ). Quantum meruit is a principal of equity based on the theory that if one performs work for another and such work is accepted by the other, non payment for such work would result in an unjust enrichment to the party benefited by the work. University State Bank v. Gifford-Hill Concrete Corporation, 431 S.W.2d 561 (Tex.Civ.App.—Fort Worth 1968, writ ref’d n. r. e.); Kramer v. Wilson, 226 S.W.2d 675 (Tex.Civ.App.—Fort Worth 1950, writ ref’d n. r. e.).

The necessary elements of recovery under quantum meruit were set out by this Court in Montes v. Naismith and Trevino Construction Company, 459 S.W.2d 691 (Tex.Civ.App.—Corpus Christi 1970, writ ref’d n. r. e.). These elements are: 1) valuable services were rendered or materials furnished; 2) for the person sought to be charged; 3) which services and materials were accepted by the person sought to be charged, used and enjoyed by him; 4) under such circumstances as reasonably notified the person sought to be charged that the plaintiff in performing such services was expecting to be paid by the person sought to be charged. See Colbert v. Dallas Joint Stock Land Bank, 136 Tex. 268, 150 S.W.2d 771 (1941); Rogers-Hill & Co. v. San Antonio Hotel Co., 23 S.W.2d 329 (Tex.Comm’n App.1930, holding approved); Olivares v. Porter Poultry & Egg Company, 523 S.W.2d 726 (Tex.Civ.App.—San Antonio 1975, no writ); Crockett v. Sampson, 439 S.W.2d 355 (Tex.Civ.App.Austin 1969, no writ). See also Kendall Company v. Plastic Engineering & Sales Corporation, 350 S.W.2d 661 (Tex.Civ.App.—Fort Worth 1961, writ ref’d n. r. e.);. Kramer v. Wilson, supra.

At least 7 witnesses testified that the heating and air conditioning system was installed in the Criminal Justice Building for the City of Ingleside by the appellee company. The President, T. R. Stewart, testified that he expended $5,075.00 in equipment and labor while installing the heating and air conditioning system. This testimony was substantiated by appellee’s various exhibits which represented appel-lee’s estimates for the work performed and the invoices for the equipment purchased for the building. There were several witnesses, including members of the City Council in 1971 and 1972, who testified that the services rendered by the appellee were accepted by the City and were used and enjoyed by the City.

This brings us to the final elements of quantum meruit: whether the services rendered and the equipment furnished by appellee were accepted and used by the City under such circumstances as would reasonably notify the City that appellee expected the City to pay for its work. The basis for a claim in quantum meruit is either an express or implied agreement to pay for the work. Stone Company, Inc. v. Carminati, 317 S.W.2d 78 (Tex.Civ.App.—Fort Worth 1958, no writ); Wyche v. Perrin, 228 S.W.2d 330 (Tex.Civ.App.—Dallas 1950, writ ref’d n. r. e.). See also Electric Wire & Cable Co. v. Ray, 456 S.W.2d 260 (Tex.Civ.App.—Houston [14th Dist.] 1970, writ ref’d n. r. e.); Schneider v. Delwood Center, Inc., 394 S.W.2d 671 (Tex.Civ.App.—Austin 1965, writ ref’d n. r. e.); Johnson v. Walker, 330 S.W.2d 508 (Tex.Civ.App.—San Antonio 1959, no writ).

Ms. Rosalie Eddings, who was secretary and bookkeeper for the appellee company, testified that Mr. Diegel, the City’s mayor pro tern, called her on three or four occasions and told her he was from the City of Ingleside and that it was time for the air conditioning company to install the heating and air conditioning system. As a result of these calls, appellee commenced the work on the facilities. Mr. Diegel denied that he had instructed the appellee to commence the work. He did state that he may have called them in connection with the electrical work that he was personally doing on the building. The City objected to the testimony of Ms. Eddings. Ms. Eddings admitted that she had never met Diegel nor had she ever talked to him on the telephone prior to this particular occasion. Generally, proper authentication is necessary if such evidence is to be admissible for the purpose as here claimed. However, authentication may be accomplished by circumstantial evidence such as the fact that the particular communication reveals to the recipient that the caller had knowledge of facts that only the person sought to be identified could have known such facts. Texas Candy & Nut Co. v. Horton, 235 S.W.2d 518 (Tex.Civ.App.—Dallas 1950, writ ref’d n. r. e.).

Shortly after the receipt of the alleged calls, the appellee company in fact went to Ingleside and commenced its work on the building. The evidence showed that the building was completed to the stage where it was ready for the installation of the air conditioning and heating system. Mr. Diegel admitted that he was present on the job when the air conditioning work was being done because he had to re-route some of his electrical work caused by the appel-lee’s air conditioning duct work. There is no evidence that Diegel, or the City in particular, objected to appellee’s presence at the job. The City did, in fact, accept and ratify the work that had been completed by the appellee company, as will be discussed hereinafter. Even though it may have been error for the trial judge to permit Ms. Ed-dings to testify as to these phone calls from Mr. Diegel ordering appellee to do this work, there was other evidence that the City impliedly agreed to pay the appellee for its work.

The trial court specifically found and the evidence supports such findings that the City initiated a dual payee system and took over the job when the contractor overspent his withdrawals. The record showed that the City assumed and undertook the duties of the general contractor and paid the laborers and subcontractors. The City maintained a labor payroll chart and went so far as to open a special bank account to pay into such account the withholding taxes of the various laborers and materialmen. The City’s own architect testified that the general contractor left the job when it was only 40 to 50% completed. He stated that he was the one who suggested to the City that they require Smith and the payee to endorse the remaining checks for work performed on the job. Finally, he testified that the City, through its mayor and the mayor pro tern actually took over the supervising of the work on the facility after the contractor left. It was only reasonable to expect that those who were doing work on this job expected the City to pay them for their work and materials. The evidence also showed that the City had available funds from which to pay the general contractor, the architect, and subcontractors, not only at the time the appellee commenced the work, but even after appellee finished the installation of the heating and air conditioning system. Although there was conflicting evidence, we hold that the evidence is legally and factually sufficient to support the trial court’s findings of fact on each of the necessary elements for recovery in quantum meruit.

The City, in points of error 24-29, complains of the action of the trial court in not holding that appellee’s remedy should have been against the general contractor’s payment and performance bond and not against the City. The City argues under these points of error that appellee’s sole and exclusive remedy was against contractor Smith on his payment and performance bond as required by Tex.Rev.Civ.Stat.Ann. art. 5160 (Supp. 1976). There is no question that contractor Smith should have been required to provide a payment and performance bond. The work which he contracted to do was on a public building which was exempt from any claims of mechanic’s and materialmen’s liens by subcontractors. He therefore should have been required to provide such a bond for their benefit. The record reflects, however, that contractor Smith failed to post such a bond upon the advice of the City’s architect. The architect advised the City that it should have the general contractor take out a life insurance policy naming the City as beneficiary in place of the bond. The City’s argument really begs the issue which they present. The City in effect is saying that even though the City did not follow the law in requiring the contractor to have a bond, the subcontractor appellee is limited to bring suit on the bond and against the general contractor and not against the City.

The purpose of the bond is to protect the subcontractors, not municipalities. Citadel Construction Company v. Smith, 483 S.W.2d 283 (Tex.Civ.App.—Austin 1972, writ ref’d n. r. e.); Allis-Chalmers Mfg. Co. v. Curtis Electrical Co., 259 S.W.2d 918 (Tex.Civ.App.—Austin 1953) rev’d on other grounds 153 Tex. 118, 264 S.W.2d 700 (1954). The fact that a contractor fails to provide the prescribed bond does not avoid the whole contract. It simply becomes voidable at the election of the governmental unit involved. Overstreet v. Houston County, 365 S.W.2d 409 (Tex.Civ.App.—Houston 1963, writ ref’d n. r. e.). It is, therefore, logical to assume that the bond requirement can be waived by an agency of the State. As was demonstrated in Overstreet v. Houston County, supra, the governing body involved may, upon discovery of the failure to provide a bond, choose not to set aside the contract.

In the case at bar, the record clearly reflects that the City was aware that contractor Smith did not have a bond and chose to allow him to continue under his contract. It is entirely reasonable for a subcontractor to assume that the governmental agency, in executing a construction contract covered by Article 5160 will follow the law and require the general contractor to provide a bond. However, if such governmental agency should choose not to require the bond, then it should also not be heard to claim that a subcontractor’s only remedy for nonpayment is against the general contractor on the bond it did not require and that it knew he did not have. Neither party has cited us any authorities in point and we can find none. However, we feel that the equities involved in this case clearly are contrary to the appellant’s arguments. In addition, we hasten to point out that the City stepped into the shoes of the general contractor and chose to supervise and finish the job and pay some of the laborers and subcontractors. In such a case, the City is now estopped to deny this subcontractor’s claim for payment. The City’s points of error 24-29 are overruled.

In its points of error 30-34, the City attacks the findings and conclusions of the trial court that Article 11, § 7 of the Texas Constitution was not applicable to this case. This article provides, in part, that no debt for any purpose may be incurred by a City or County covered by the section unless provision is made at the time of creating the debt for levy and collecting a sufficient tax to pay the interest on the debt and also provide at least 2% as a sinking fund for debt retirement. The trial court in one of its conclusions of law held that Article 11, § 7 was inapplicable because the City already had a fund with which to pay for the construction of the building. We agree. The key word in Article 11, § 7 is debt. The City in question must be creating a debt before this section of the constitution becomes applicable. The record clearly indicates that none of the City’s own money was used to build the Criminal Justice Facility. The construction contract was executed and the building constructed exclusively with funds from the Celia relief funds and with a matching grant from the Texas Criminal Justice Council. The term “debt” as it is used by Article 11, § 7 means any pecuniary obligation imposed by contract except such as were to be satisfied out of some fund then within the immediate control of the corporation. Stevenson v. Blake, 131 Tex. 103, 113 S.W.2d 525 (1938, opinion adopted). Obviously, the funds used to pay for the construction constituted another fund within the immediate control of the City from which the debt could be satisfied.

Regardless of all the testimony offered by the City to the effect that no fund was ever created by the City to pay appellee at the time the debt was incurred, the record is clear that sufficient funds were available for its payment. The City’s points of error 30-34 are overruled.

In points of error 40-42, the City complains of the amount of the judgment awarded against it. As with almost every issue in this case, the testimony concerning the value of appellee’s services varies sharply. T. R. Stewart, President of appellee company, testified, naturally, that the value of the job was what he charged, $5,075.00. David Locher, an expert witness for appellee, testified that in his opinion the job done by the appellee company was worth about $250.00 less than the bid price or $4,875.00. The City’s expert witness testified that to have gone back into the building in 1971, after it was completed, and brought the entire system into the specification in the architect’s plans would have cost $3,780.00 additional. However, he also testified that the maximum value of the system as it was installed was $4,500.00. There was a considerable amount of testimony concerning the variations in the system installed and the one specified. Several witnesses testified in varying detail as to the cost of items omitted from the specified system and of modifying the whole system. The trial court awarded appellee $4,700.00 finding that the City was entitled to an offset of $375.00 for defects in the system. As was stated in Bratcher v. Moore, 219 S.W.2d 527 (Tex.Civ.App.—Amarillo 1949, no writ), in an action on quantum meruit, the cost of correcting any defects may be adjudged as an offset to be deducted from the reasonable value of plaintiff’s services and materials. We hold that the evidence is sufficient to support the trial court’s findings of the amount of the judgment.

In its point of error number 43, the City complains of the action of the trial court in assessing prejudgment interest. The trial court in its judgment awarded appellee prejudgment interest at a rate of 6% from December 1,1971 through January 26, 1976. It is settled rule in Texas that where damages are established as of a definite time and the amount thereof is definitely determinable, interest is recoverable as a matter of right from the date of the injury or loss. Black Lake Pipe Line Company v. Union Construction Company, Inc., 538 S.W.2d 80 (Tex.Sup.1976); McDaniel v. Tucker, 520 S.W.2d 543 (Tex.Civ.App.—Corpus Christi 1975, no writ). If damages are definitely determined by written instrument or fixed rules of evidence and known standards of value, interest is recoverable as a matter of right from the date of injury. Ambox, Inc. v. Stewart & Stevenson Services, Inc., 518 S.W.2d 428 (Tex.Civ.App.—Houston [14th Dist.] 1975, writ ref’d n. r. e.). The test is whether or not the measure of the recovery or claim (and not necessarily the amount) is fixed by conditions existing at the time the claim arose or the injury was inflicted. Metal Structures Corporation v. Plains Textiles, Inc., 470 S.W.2d 93 (Tex.Civ.App.—Amarillo 1971, writ ref’d n. r. e.). The record clearly demonstrates that appellee’s claim was established as of a definite date and that the measure of their claim was fixed as of this date. The City’s point of error number 43 is overruled.

The City in points of error 35-39 objects to the finding and conclusion of the trial court that the City had ratified its acceptance of appellee’s work by making use of the system and by requesting that the ap-pellee make repairs on the system after it had been accepted and after it was being used. Initially, it should be noted that ap-pellee did not plead any theory of ratification or estoppel.

One of the fundamental elements of ratification is knowledge. One who has purportedly ratified an agreement must have knowledge of all material facts before ratification will be found. Rourke v. Garza, 530 S.W.2d 794 (Tex.Sup.1975); Norman v. Safway Products, Inc., 404 S.W.2d 69 (Tex.Civ.App.—Dallas 1966, no writ); Williams v. Hooks, 333 S.W.2d 184 (Tex.Civ.App.—Beaumont 1960, no writ).

It is apparent to us from all the evidence that was introduced, that the parties tried the issue of ratification by implied consent under Rule 67, T.R.C.P. The trial court found that in 1971, the City accepted appellee’s work and subsequently ratified that acceptance by requesting that appellee company make repairs on one of the fans. Although the trial court made no finding that the City had knowledge of all the material facts before committing the ratifying act, the evidence supports such a finding. The record shows that in January 1972, the City received appellee’s final bill for $5,075.00 and in April of 1972, T. R. Stewart, President of appellee company, contacted the City about payment. As early as January 1972, the City’s Director of Finance and Assistant City Secretary had received appellee’s final bill for its work. Then, in April of 1972, T. R. Stewart, the President of appellee’s company, personally contacted Mr. Bounds, the City mayor and sought to collect his bill from the City. The testimony concerning the repair work indicates that the appellee company was contacted by someone from the City and asked to come out and repair the fan some 6 months after the work was completed. This would be in May or June of 1972. Since the City requested appellee to repair the system after they clearly had knowledge that appellee sought to charge them for the system, their action amounts to ratification of an implied contract that they would pay appellee for its work.

We have carefully considered all of appellant’s points of error and they are overruled. The judgment of the trial court is AFFIRMED.

AFFIRMED.

OPINION ON MOTION FOR REHEARING

Appellant City of Ingleside’s motion for rehearing has been carefully considered and is found to be without merit. Appellant has also filed a motion relating to costs wherein he requests this Court to retax or readjudicate the cost on appeal pertaining to the fee of the official court reporter in this cause. In addition to ruling on appellant’s motion for rehearing in this cause and the motion relating to the cost involved, this Court also rendered an opinion this day in cause number 1132 in which the question of the constitutionality of Art. 2324 (which attempted to set the fee of the court reporter) and/or the reasonableness of the court reporter’s fee was also determined. See City of Ingleside v. T. R. Stewart, d/b/a L & S Air Conditioning Company, Inc., Docket Number 1132. (Tex.Civ.App.—Corpus Christi, June 30, 1977) (not yet reported).

A motion to adjudge cost involves an assessment by the court as to who shall pay the cost, while a motion to retax cost involves the question of the amount of cost assessed. Reaugh v. McCollum Exploration Co., 140 Tex. 322, 167 S.W.2d 727 (1943) and followed by this Court in Smith v. State, 500 S.W.2d 682 (Tex.Civ.App.—Corpus Christi 1973, no writ). There have been repeated statements by courts of this State that a motion to retax cost is one to correct the ministerial act of the clerk of the court in tabulating cost. Wood v. Wood, 159 Tex. 350, 320 S.W.2d 807 (1959); Hammonds v. Hammonds, 158 Tex. 516, 373 S.W.2d 603 (1958); Reaugh v. McCollum Exploration Co., supra; Hartzell Propeller Inc. v. Alexander, 517 S.W.2d 455 (Tex.Civ.App.—Texarkana 1974, no writ); Smith v. State, supra. It is interesting to note, however, that prior to the amendment of Art. 2324 (Supp. 1977) the motion to retax the costs was available to a litigant to test the reasonableness of a court reporter’s fee in the Court of Civil Appeals. In both Reaugh v. McCollum Exploration Co., supra and Southland Life Ins. Co. v. Statler, 141 Tex. 110, 170 S.W.2d 714 (1943) the question before the Supreme Court was whether or not a court reporter’s fee was reasonable for transcribing the record. In both cases the court refused to rule on the motion, stating that that question was one to be determined by the Court of Civil Appeals since that was the court in which the cost arose. However, in 1975 the legislature amended Art. 2324 and provided that the trial court should determine the reasonableness of a court reporter’s fee until the Supreme Court so provided under its rule making authority. The legislature by the 1975 amendment deprived this Court of its original ancillary jurisdiction to decide this question as determined by prior case law. For these reasons appellant’s motion relating to costs is denied.

Due to the fact that this case and cause number 1132 are intimately connected we must make special provisions for the mandate should mandate issue from this Court. Since we affirmed the judgment of the trial court, mandate will issue on behalf of T. R. Stewart d/b/a L & S Air Conditioning Company, Inc. 30 days after this judgment in this cause becomes final. Mandate as to the cost of the statement of facts shall not issue in favor of the party against whom cost shall be assessed until the judgment of this Court in cause number 1132 shall become final.

Appellant’s motion for rehearing is overruled.