Bennett v. Brown County Water Improvement District No. One

hold does not me that convinces analysis case of this An contributory issues the same to have was entitled defendant specifically. generally negligence both submitted of Civil judgment the Court my that the conclusion It I discussed. point above on the reversed Appeals should be point petitioner’s second forego consideration opinion majority Appeals and the of Civil Court reason ground trial that the court should on the the cause do not reverse 12. objection Special Issue No. respondent’s sustained have 24, 1954. Opinion delivered November H. et ux v. Jesse Bennett Improvement District No. One Brown Water July 21, 1954. No. A-4415. Decided Rehearing overruled December 498) (272 S.W. 2d Series Callaway, Brownwood, Mark petitioners. of Appeals respond- The Court of Civil erred in that the political ent water district was subdivision and of the State irrigation gov- operation performing of in the said ditch was county, footing and on ernmental function stands same as a the acting agency public City and was such Amarillo use. of Ware, Texas, 456, City of San Ostrom v. Higgin- Antonio, 909; City 94 Texas of Dallas v. botham, 143 S.W. 2d 79. Darroch, Brownwood, respondent. C.

J. opinion the delivered the Court. Mr. Justice Griffin Eugene petitioners, Bennett, eight-year-old son Norman irrigation ditch and when he fell into owned was drowned operated by storing and respondent part as a the function of County, distributing Petitioners flood waters in Brown Texas. alleging respond- damages against respondent that filed suit for operation negligence guilty in the construction ent was young was irrigation place at where Bennett ditch the of the place drowned; therein at that ditch the water the “attrac- regrettable occurred constituted an accident where the Bennett; young years of to one of the tender nuisance” tive maintaining guilty respondent nuisance was and that Respondent to a motion place question. filed at the time petition ground plaintiff’s petition on that dismiss the question place respondent at the time and showed rights carrying engaged governmental agency out the created. which it was imposed law and for and duties Bennetts dismiss and the the motion to trial court sustained Appeals. In amend, appealed the Court of Civil declined to judgment Appeals of the trial court of Civil Court 2d 754. affirmed. 261 S.W. following agreement between was made trial Upon the through their acting open litigation, court to this parties

the respective attorneys: Brownwood, County “Brown Lake District owns Water dispenses impounding District water that the is the reservoir for Brownwood. District and the inhabitants bonds of issuance of created virtue This reservoir was tak- laterals together irrigation District, with the canal dis- ing it; City of Brownwood off from it wholesales theOn penses irrigated District. within the water to the lands Im- child, Water Bennett Brown date death operating canal and provement owned and was District ad- place; and it is syphon at which the child took death of the irrigation at flowing through canal that that mitted water was through canal time, being flowed the water was further purposes It created. for the for which District was with accordance admitted canal constructed in that this specifications plans plans of—in with accordance by Brown reputable engineers, approved the and under contract directors, County act- Improvement board of Water District’s engineers.” ing upon of such the advice and under the direction XVI, Respondent provisions was Article created under the enacted Constitution, Section 59a of statutes our State and Legislature by carry constitu- thereunder into the effect such provision. tional provides, con- part,

Section 59a of XVI that Article development this servation and of all the natural resources of state, including storing, control, preservation distribu- and and waters, tion of its storm and flood the waters of its rivers irrigation purposes, streams for recla- and all other useful irrigation arid, mation and lands other semi-arid and needing irrigation, drainage over- reclamation and of its lands, needing drainage, preserva- flowed and other land tion and state conservation of all such natural resources hereby duties; public rights each all and and declared and Legislature pass may appropriate shall all such laws as (b) provides, part, thereto. Subsection of such Section may the creation of conservation and reclamation districts as accomplishment (conserva- be determined essential to the of this agen- tion) governmental amendment, “which districts shall be gov- politic corporate cies and bodies and with such rights, privileges, ernment and with to exercise such concerning subject and amendment functions matter of this may by be conferred law.” Article Annotated Vernon’s 1921) Leg., (Ch. 13, 6, Acts, Ses., Texas Civ. Stat. Sec. Rev. 37th regard part, provides with districts

“All politic governmental body agencies, districts shall be and corporate, governed by and and be and all exercise * * rights, privileges powers provided by law governmental agency

Petitioners admit that this district is “a body politic,” and a but contend that the analagous city; i.e., negligence that liable for the agents of its resulting proprie- servants in the exercise of tary distinguished governmental functions as from functions. furnishing Petitioners further contend that of water irrigation purposes pro- to the inhabitants the District prietary anot matter function. think We this by previous has been Court, foreclosed decision of this both opinion, application Court’s our “refusal” writ (since 1927) of error in two from Civil cases the Courts of Appeals. In Willacy the case Improve Water Control and ment (1944), Dist. No. al et Abendroth 936, 937, sought 177 S.W. 2d District Abendroth make the subject garnishment to a writ of in his favor. court The trial grounds exceptions upon sustained to the Dis writ that exempt garnishment body trict was being reason corporate politic political and a subdivision of the State appeal Appeals 90) (175 Texas. On Court Civil grounds reversed “body cor District ** porate politic only sense “body corporate garnish politic,” subject and therefore to city. ment under the same rule of law a to Cities were held subject garnishment exempting in the of a statute absence exempting improvement them. Since there was no statute districts, Appeals Court Civil held the District subject garnishment. Thus, squarely presented to there was question Court the of whether or not a water “body corporate politic” only was a city. as a This court, discussing XVI, after Article 59a of Section our Constitu tion, Legislature an (1929, act of the 41st Vernon’s Anno. Civ. Stat., 7880-147c) validating again Art. districts and declar ing existing governmental agen these districts to be “valid and cies, politic,” necessity statutory specific and bodies for a counties, districts, etc., subject enactment to make school garnishment, said: (J “Irrigation districts, navigation districts, improve- levee and districts, political ment and like created subdivisions under Sec- Constitution, ton 59a enacted Article XVI of the and statutes

603 pro- carrying purposes such constitutional out the thereunder held municipal corporations, but vision, classed with are not governmen- State, performing political to be subdivisions footing standing functions, counties the same tal Coun- Harris political law. subdivisions established and other 239, Mann, 2d 140 S.W. ty District v. 135 Texas Flood Control Higbee Drainage County No. 1 al v. 1098; District et Wharton refused; Bexar-Me- App., 381, al, writ 149 et Texas Civ. S.W. v. Improvement District No. 1 dina-Atascosa Counties Water Engelman refused; 747, App., State, 2d writ Texas Civ. 21 S.W. al, Irrigation 1 al v. No. et Texas Civ. Land Co. et Donna District al, Texas 428, refused; Shary et App., v. 209 Arneson S.W. writ 907, dismissed, App., appeal Arneson United 2d v. Civ. 32 S.W. Coun- 592, 202, 510; Co., L. Harris Irr. Ed. 284 U.S. 52 S. Ct. 76 ty Drainage Houston, Com. Texas 12 v. District No. 262, App., 120; Jur., p. 35 176.” 2d 44 Texas Sec. S.W. opinion of gave unqualified “refusal” to the This Court Appeals Coun- v. of Civil the case Jones Jefferson Court ty Drainage 6, (1940) 2d No. 139 wherein Dist. S.W. sought Drainage injury to to hold the District negligence employee. plaintiff by A de- District virtue of of a plaintiff’s petition trial murrer was sustained Appeals affirming judgment, In court. the Court of Civil said:

“Drainage Chapter provisions 7 districts under the created 8097, V.C.S., of Title enacted under of Art. Art. 59a, Constitution, St., Ann. Sec. the State Vernon’s political the state of the same nature and stand subdivisions of any upon exactly footing counties, precincts, the same County political of the other Drainage subdivisions of the state. Harris App., City Houston, No.

District 12 v. Texas Com. 118; Drainage v. County 35 Higbee, No. 1 S.W. Wharton District App., 381; Surety v.Co. Texas Civ. American S.W. Hidalgo County, App., writ of error Texas Civ. refused; District, Drainage Civ. Parker v. Harris 351; App., County Gerhart, Harris 115 Texas S.W. 139; County, Nussbaum Bell District, Independent Braun v. of Victoria Trustees School 947; App., 722. Texas Jur. Civ. 114 2d 15 Texas S.W. (115 Supreme case, supra, held “In Court the Gerhart our 449, 140) com- Texas 283 : established that at S.W. ‘It is well resulting injuries mon law as a rule are liable for counties negligence not recovery agents, and from the no of their officers damages by statute. can had in be created unless 604

Heigel County, v. Wichita 84 Texas SW. 31 Am. 19 Rep. 63; County, St. Nussbaum v. Bell 430’. drainage

“Since districts are of the same nature and stand upon footing counties, the same and since counties are injuries resulting negligence not liable for from the of their agents, districts, logically drainage officers or follows that likewise, injuries resulting negligence are not liable for from the agents.” of their officers or A to the same effect is Mata- the case of Peters v. gorda County Drainage (1941), Dist. No. 146 2d S.W. One appellant Court, the contentions of therein was that this by its application “refusal” of the Jones for writ error in the case, supra, give did not approval proposition its of law to the drainage districts were of the same nature and stand footing counties, same and therefore are not liable injuries resulting negligence agents. from the their officers This Appeals’ opinion contention was was set out the Court Civil specifically unqualifiedly overruled. This Court “re- application fused” an writ error the case. drainage It is contended that the above district cases drainage partly or- case because district

ganized police power under protection of the State for the Drainage property health and dis- of its inhabitants. tricts receive vitality (Section from the same amendment Art. public welfare, being well health and by served drain- conservation same age district.

For enlightening applicable to law discussion of the causes such Hodge as the Lower one at bar see the case of Colorado Authority App., River (1942), Texas Civ. 2d agreement writ parties. dismissed following thoroughly cases nature discuss the Authority, characteristics of the Lower River Colorado has been XVI, 59a, created hold that under Article Section such Authority governmental politic and agency, body possessed of the characteristics and nature as the State governmental also hold that subdivisions. Such cases Authority does not virtue lose its character generates power fact indi- power and sells the viduals, River private utility. Colorado same as Lower Authority McGraw, Lower

605 Co., Tex- Authority Chemical Bank & Trust River Colorado 326, 190 App., 461, 2d affirmed as Civ. of the law to can no distinction in rules 2d 48. see S.W. We drainage River applied district or the Lower Colorado to either a the under Authority, respondent herein. Each is created or to legis- 59, authority XVI, appropriate of Article Section Texas, people adopting in the Con- lative The enactments. very XVI, 59) (Article have servation Amendment plainly Section “govern- to be set that these districts forth decree agencies politic.” representatives the mental people The bodies Legislature, carrying into effect the

assembled the amendment, the so decreed. It constitutional have likewise duty give people so the will of the courts to effect to the plainly expressed. Hidal- impose liability

Petitioners seek under the cases go County Improvement Holderbaum, Com. Dist. 2 v. No. Ware, App., City 120 506 S.W. 2d of Amarillo v. 57, Texas Liability cited. therein S.W. 2d authorities first, upon fact predicated, in those cases second, injury damage; and, property that sustained was engaged time proprietary in a at the function injury. Appeals inflation of The commission case, supra liability (11 507), Holderbaum bases “ ‘damaging of the water or de- ” flooding property by struction’ Holderbaum’s virtue of seepage opinion from the district’s ditches and canals. The “* * * degree ‘district,’ states or The whatever its governmental agency (Section no 16, Constitution), has Art. immunity liability injuries in Section referred to (State Constitution). Art. 1.” last mentioned section prohibits “taking, damaging one the State, or destruction” pay- property by one’s or without state Judge adequate compensation. expressly ment of states Nickels that the “exact character of the a matter not essential ‘district’ is bar, presently of the case is a made.” In at the district the case agency governed by the body politic, statu- applicable only A under law tory enactment, to counties. is liable making being the district there no statute Also, this, liability liable a case such can result. no gov- Constitution, I, specifically all makes Article Section damage agencies to, de- taking of, ernmental damage property. property no claimed. struction of Here Babbitt, the case of of Ysleta v. Petitioners cite history, App. as author- 8 Texas Civ. no writ in- ity respondent That case liable in this case. city volved the operation virtue of irrigation system years prior some 23 adoption Conservation Amendment to our State Constitution vote of people- 1917, enabling in Texas and passed statutes people’s representatives Legislative assembled in Ses- sion of 1917. case, city had, Also Ysleta common consent, ,of operation irrigation system taken over the had many years prior existed Again, liability thereto. sought to established in that case for furnish failure to (which alleged water available) it was plaintiff to enable him crop. to make a Plaintiff was entitled to needed receive his implied contract, under an were, as with the permit year necessary him to continue crop to use water for the 1892, using past. event, as he had any been water in the In case ganized authority improvement cannot be that a water or- district XVI, 59, under body politic Article and Section is not a governmental agency. Raywood Petitioners rely upon also cite and such cases as Milling Rice Canal Erp, (1912), & Co. v. 155; S.W. Irrigation American Rio Mer Grande Land & v.Co. cedes App., (1919) 904; Edinburg Plantation Co. Com. 208 S.W. Ledbetter, Irr. App., Co. v. (1926) 185; Mark Com. 286 S.W. ham Brown, Irr. App., (1927) Co. v. Com. Gar Williams, wood Irr. 2d App., (1951) Co. v. Texas Civ. 453, n.r.e., and Richman v. Calhoun Com Canal pany, App., (1954) e., Texas Civ. n. as r. liability respondent The this cause. district arising first prior two above cases involved matters adoption date amendment. conservation irrigation private companies, All of the cases involved cor porations organized appropriate Article under subdivisions of suits Vernon’s All Annotated Texas Statutes. were Civil duty, statutory duty under breach of a contract and also what now is Article Texas Civil Sta Vernon’s Annotated tutes, any irri pro-rata to furnish water to all users served companies gation irrigation system. awas Not of those one improvement respondent. water conservation and It is contented as to that there should be no distinction irrigation corporations conservation between and water Regardless individual our districts. what opinion obey question may be, duty upon that is our clearly they spoken people mandate of the when so Texas have present adoption in the XVI Con of Section of our Article government people stitution. Our in which is one solely only respository power. They sole of all limited delegated branches to the various they have right declare government. people had State The gov- politic respondent bodies organizations to be terms. they no uncertain have done This ernmental bodies. taxes, levy bonds, irrigation no companies can issue no Private dis- many ways conservation differ from water other tricts. importance of conservation to state water and soil his- forcibly by the all its inhabitants demonstrated facts perished peoples civilizations,

tory. have nations Whole Surely, people supply has failed. where the water “self- giving using good only judgment and effect to that were preservation” adopted law of nature when the first repre- and their Section Article XVI of our Constitution Re- Legislature adopted Article 7731 our sentatives in the vised Civil Statutes.

Judge style, Fly, set usual has in his inimitable and lucid Im- Water forth in Counties the case of Bexar-Medina-Atascosa provement App., State, 21 No. 1 v. S.W. District Texas Civ. 747, refused, prompted 2d the citizens writ the reason which governmental powers exemptions confer Texas to respondent. districts such as seeking liability pleadings, on Petitioners’ to establish

grounds law nuisance, clearly contrary to the rule by declared of Gotcher Chief Justice Alexander in the case (2), Farmersville, 137 151 S.W. 2d 565 Texas wherein it is said: municipality is liable

“There which hold that a authorities damages nuisance, even for though caused maintenance of engaged in maintaining municipality the same 956; governmental 30 Texas. the exercise of J. function. 43 C. However, liability mainten- Jur. 537. in order create way nuisance, ance of constitute the nuisance must in some rights p. J. unlawful others. 46 C. invasion of the sec. 18.” things af- judgments

The courts are in all both below firmed.

Opinion July 21, delivered 1954.

Dissenting Opinion joined Wilson, Mr. Justices Justice Calvert Smith, dissenting.

608 respectfully I length dissent will write at some be- (1) government expands cause performed into fields also private enterprise, it should pri- assume the same liabilities as enterprise, (2) majority opinion vate cen- tends toward government, tralization weight (3) contrary it is to the throughout of the United States. Exemption from tort here accorded to water improvement district, as gov- a subdivision of the central state ernment, because: 59a, XVI, Sect. Art. Constitution, provides Texas

conservation, storage right and distribution of water is a duty. 59b, XVI, 2. Sec. Art. Constitution, Texas and Art. V.A.C.S., declare agencies shall be districts. politic corporate. bodies 3. Stare majority decisis. The holds here im- that a water provement comparable subdivision of the state ato comparable and not city, citing Willacy County to a Improvement Water Control & Abendroth, Dist. No. 1 v. 142 936; Texas 177 2d S.W. Jones v. Jefferson Drain- age Dist. No. App., Texas Civ. Lower S.W. 2d Colorado Authority River reported cases at 2d 629 and App. 185, 461; (also Texas Civ. SW. 2d 326,190 48) and Bexar-Medina-Atascosa Counties Improvement Water State, Dist. No. 1 App. Texas Civ. S.W. 2d 747.

The basis of this dissent is that: (1) irrigation The operation maintenance and canals proprietary governmental a and not a function. (2) It is improvement immaterial whether a water district comparable city county to a to a since even a should be liable for torts performing proprietary committed while function. (3) Even if a be held to be not for com- torts performing

mitted while proprietary function, still a water comparable district is more to than to voluntarily by because is created for its inhabitants their own advancement. majority opinion

The following language holds operation irrigation gov- the maintenance and of an canal is proprietary ernmental and not a function: furnishing of contend that water “Petitioners further irrigation purposes to the inhabitants the District is for proprietary think and not function. We by previous court, matter has foreclosed decision of this been by application opinion, ‘refusal’ of both this court’s our (since 1927) from the Courts of for writ error two cases Appeals.” Civil alleges passing plantiff In the at case bar the water solely through drowned the conduit where son was profit for sale land used owners at to the District and the benefit of the land owners. The receives its revenue charges. from ad valorem taxes and service There charge a Dollar and One to the landowner for water of a flat rate of subject Twenty-five per irri- Cents acre of land gation charge ninety per and an additional cents acre irrigated. actually land privilege duty develop, conserve, The and distribute many irrigation great purposes can, is, water for for a has years municipal been carried on in both corporations. Art. of water V.A.C.S.This includes sale irrigation purposes. City Babbitt, for App. perform of Ysleta v. 8 Texas Civ. corporations authorized S.W. 702. Private provides 1302, V.A.C.S., Art. these functions as follows: purposes private corporations may

“The formed for which are: operate construct, canals, ditches,

“32. To maintain and flumes, feeders, laterals, dams, reservoirs, wells, and lakes conserving, storing, transferring conducting for all persons mining, irrigation, entitled to the use of the same for milling, manufacturing, power development to cities stock-raising. p. waterworks, towns for and for Acts H? H* v corporations may for, or, “88. Private be created after be- ing may created, two so amend their charters include as to following purposes, namely: supply more of the of water pur- irrigation, power, municipal to the or domestic * * *” poses; system purely operation irrigation How can the an governmental corporations? panies legally performed profit private if it is irrigation com- The courts Texas treated have great public utility as a sort of deal and there is 610 Raywood defining and statute law their status. In

both case 155, Milling Erp, 161, Rice & Co. v. 146 S.W. Canal 158, said: this courts granting imposes power of eminent domain

“The public in return. No under our service law exists conferring power of eminent domain for use. pub- power granted, grantee quasi moment such becomes character, exercised lic functions and while his profit, exercised in the interest must be * *” * upon reasonable terms and without discrimination. Irrigation In American Rio Land Mercedes Grande Co. v. Co., (Com. 1919) 904, App. 905, Plantation court 208 S.W. said: organized corporation “Defendant under in virtue 1526, 1911, (Vernon’s

article Rev. St. Civ. Stat. Art. irrigation Corporations; cor Water), Article poration. organ corporation It well settled in this state irrigation public corporation, quasi ized under act is a charged public by with certain duties to the reason of the privileges upon pertaining conferred the statutes irrigation. Irrigation Co., (Trespalacios) 98 Borden v. Rice & Irrigation 11, 107 640; Imperial Texas Rep. 86 Am. S.W. St. 1914B, Jayne, v. Co. Ann. Texas Cas. 322; Raywood Rice, Milling Erp, Texas & Co. v. Canal 146 S.W. 155.” irrigation In of an canal is maintenance corporate function, proprietary and not a ignores majority opinion cases cited above.1 the statutes

The structural difference and a between a logi- simple matter. Their differences are more historical than against rightly except cal and cannot be their his- understood background. torical “body politic

The words “subdivision state” corporate” trustworthy are not which to criteria differentiate govern- city. between ment and a Texas modeled its England Virginia, that of which in turn came from during period. city government the colonial Our came Edinburg Ledbetter, 185; App. 1. See ham Williams, CCA, Mark- also Irr. Co. v. Texas Com. Brown, App. Irr. Co. Garwood Irr. Co. Com. 243 S.W. 2d n.re. legal (not entity subject borough. concept to English a The of are) changes partnerships personnel in its dissolution the England and emerged from Universities the first corpora- boroughs. spread we now call to what It then English did entities). counties and cities (or The tions business governmental structures, these and neither are have uniform not throughout Each structurally States. the United units English the same English grew local custom county from and each King. this grants separate For franchises and the of govern- English generalize very reason, to about it difficult is .However, during period.2 the American Colonial mental units legal boroughs entity many say were of a than more we can originated borough municipal charter most counties. The were general, Royal type franchise Royal In of as a franchise. this appoint- grant liberty power agency and an was a of not granted payments liberty a release from ment. The was often King. Traditionally, England, counties or services due the emerged many an incidence land tenure and of them of originally name, area, lands took their and boundaries from the by a But inclusion rural area ab- held Count. of a is not an test, borough solute for the often extensive of cul- included areas borough a tenancy tivated land in farm held was also govern- tenancy form of for both rural and urban land. As the England centralized, ment of nobility diminished, was and as the of emerged county local of as a unit government. change came, central In the course of time this more not, represent power often than to a from flow of downward King Although agency. borough in the of nature also Maitland, writing English county a & 2.—Pollock of the structure at very early says: (before I) time Edward ‘county’ land, district; “The is not a stretch mere it is organized body men; stop saying communitas. We must short of corporation. slowly, corporation being is a The idea of a evolved but corporations, days borough, ‘county our shires never become so that in later the term cor- porate’ employed distinguish municipal certain been which have organization counties, ordinary ‘counties endowed with the shires large.’ belong corporate’ deal; they at With such ‘counties we have not age. only attending large.’ another But to the ‘counties at We notice that sight language period law them of our seem first to treat much at though corporations, respect between were hard to draw no line county. towns; borough communitas, them and the chartered is a so is the county It even would seem that under Edward of Devon had a common I. may exceptional unity; seal. John had This have been an manifestation but granted little to Cornwall in form Devonshire charters which differed might boroughs: granted grant from those that be made he of liberties —if grant liberties, heirs, grant free- to the men of a town so also a might exactions, sheriff, grant right made from forestal dom to the men of a to elect a unity county county apt to find its and their heirs. But the rights. brought form home in the to it in the form of liabilities rather than assembly, punished misdoings The the mistakes and of its History English Law, p. court.” King, through power derived from the it came much grant carrying (frequently purchaser) usually of franchise concept agency. officials carried out the busi- King King’s revenues, ness of collected the but borough King. Thus, early, gen- officials often resisted the the feeling borough corporate entity, eral that a was a local became having arms-length bargaining relationship with the King, King’s agents go- composed while the was of the ing King’s During period, about the business. the Colonial general feeling city the between about difference was transferred to the American A North Colonies. number of plans organization city county origin different were of for both colonies, adopted depending the the somewhat the of on States, particular colony. first settlers in a In the Southern after regarded Revolution, American con- the the through venient the func- subdivision of which the State State tioned,3 deriving separate entitles, the whereas cities were through corporate State, agency from not so the but by grant purposes. Still, they had much as of charter for local general many by agency imposed duties the nature of Both cities and are now State. counties held to be subdivisions Law of the State4 and the trend of American Constitutional independ- fifty corporate years the last has been to decrease general part ence central- of cities. This is of the trend toward government. ized independent been of the

Our cities are not have never government. organisms inde- The State belief that cities were high period pendent of in the the State reached tide Texas Judge “right Cooley’s 1903-1909. It was on local self- based of government.” self-government right ori- inherent This of local English ginated misunderstanding origin in a borough. split It court caused the now famous bewteen this dispute Appeals. our validity over Court of Criminal The arose Following City Galveston. ordinances Legislature flood, disastrous issued a charter new City Mayor appointed of Galveston in which the appoint- Appeals Governor. The Court of Criminal held that Mayor be- ment of was unconstitutional the Governor self-government right local cause violated the inherent were prosecutions city under therefore all criminal ordinances void.5 be- This were valid court held that civil ordinances County Linden, 3.—Bexar 110 220 761. City Houston, App. Drainage 4. —Harris Dist. Com. #12 2d 118. Lewis, Rep., —Ex Parte 45 Texas Crim. 73 S.W. 811. a creature the State and is defined cause Legislature.6 This reaffirmed State Constitution rights upon and was bottomed a denial inherent constitutional proposition then the written, all is written. As of our Constitution self-govern- give right any it did the cities to local a number ment. The debate the two continued for between courts Appeals finally abandoned cases until the Court Criminal Judge Cooley.7 amend- people adopted

In 1912 the of Texas Home Rule Legislature ment and conferred Rule Home cities self-government” power (Article Vernon’s “full of local Stat.) long city’s Civ. so as the consistent with acts were general self-government right laws. inherent as dis- local tinguished right a written constitutional was buried Jersey, the case of of Trenton v. New S. State of U. Sup. 67 L. Ed. 537. The court said: Ct. safe-guard- provisions “In the absence state constitutional ing them, municipalities right it to have no inherent of self- government beyond legislative is which control the state. municipality merely A may withhold, grant, department state, is a and the state privileges, or it withdraw and great sphere sees fit. action, However or remains small its it state, exercising creature of the powers and privileges subject sovereign to the will.” See Barnes v. Dist. Columbia, 540, 545, 91 U.S. 23 L. ed. 441. city plead

A rights (such pro- cannot constitutional as due equal against cess protection) Legislature or an act of the be- city a Legislature cause is a creature of the and a mere subdivi- government sion carrying purpose State for the out the government.8 functions of State a While it is subdivision State, agency it still not relationship does have the State corporate proprietary function. comparable Both cities and counties are in that entities can a They both, sue be sued their own name. can extent, property name, subject, limited ever, hold in their own how Legislature.9 a disposition by limited control and They corporate know, can both be debtors. far I So there City Galveston, 6. Brown v. 97 Texas 75 S.W. 488. Anderson, Rep., 372, 973; State, 7.Ex Parte 46 Texas Crim. Mantel 81 Rep., 456, Crim. 117 S.W. 855. City Jersey, 8. of Newark v. State of New 262 U.S. 943. Ed. L. County, 9. Robbins v. Limestone 114 Texas Love v. Dallas, 40 S.W. 2d 20. performed government city be which cannot no function of Legislature performer, county, so a to have it if the wishes government can there function of likewise is no delegated a Legislature, not, within the discretion city. have It said that one main difference is that cities do charter counties not. Legislature

Therefore, de- when the Constitution “body politic clare district shall be a nearly classify corporate” more either as does not politic, city and both like because both are bodies Although corporate.10 were are at one time most counties re- corporate, is often great considered to bodies now many quasi-corporation actually has ferred to as corporate although came into existence characteristics. And cities independence from King (granting charters from the some Crown), make been to trend American decisions has government. As dependent the a subdivision of the state gov- result, disputes and the central state between cities engaged constantly “political” ernment are and so cities legislative battles. Therefore, we and counties have a see that while cities divergent background growth, widely be- the distinction largely tween them entities the discretion now rests within Legislature. Throughout States, trend United away original They from the structure. historical distinction in coming slowly very alike.11 to be much for on a service basis. mainly collection, by functions mer embraces functions which but when it enforcement mental mainly proprietary on a come more like that of cities. instrumnets the what has tion and a Since counties ated. 10. Comanche charged “Though explanation seemed governmental the state Both are creatures to the fund ions. to an hospitals, individuals perform for on to treat Goversment Across the Nation, — functions. On the other character distinction fune!ions gives engaged County can be found in the relative increasing each carrying Hence, fund as a a proprietary libraries, it can withdraw or the performs, service provision aggregate The latter of their operations. in a ion, quasi-co: poration, performed needs of corporations. When city Burks, out extent, the the proprietary basis, larger * * *” and other like to be made between namely, functions state, state make CCA includes an as they roads on and even immunity grants both adult up hand, the insistence hedge governmental services function and the the distinction get If inevitably will, Wager. and functions, a preponderance about with restrictions. provision may state, they schools, granted local have had immunity their which the cities such a have should the state has used unit city powers 470. of and which cannot to counties has immunity and have been been the from suit as a should not be relatively undertake water, proprietary. their locally initiated, engaged they from the like a minor state, municipal provided is not status lights, have two for few such incorporated If the state proprietary be state, been damages, formerly had carrying types exagger will granted. them corpora garbage govern charged child, for few law due and can be of City Posnainsky, In Texas Galveston by Legislature emphasized counties are created court cities regard to of their inhabitants while without the wishes express response desire their inhabitants. created in to the The court said: corporations by the quasi and like are created

“Counties legislature general their by reference to the wish of laws without purposes. inhabitants, essentially public and thus for through incorporated “Not so with towns and cities which are charters, at special which, special most laws are enacted like by request directly those who are be most benefited them with view to this end. agency purpose “The one is created as an effectively through conveniently

the state which it can most discharge state, organized govern- the duties ment, pro- every person, by assumes to which it can best mote the welfare all.” other, given public pur-

“The while to a created for a extent pose, mainly large is so reason the existence of degree towns system police and cities neces- makes there sary villages population; which is not so in nor with rural purpose but the main and essential for which are created advantage is the corporation, so inhabitants of and in corporations far powers as such receive and exercise than other as would through be exercised the state county organizations, essentially this is true.” liability,

For tort the line of demarcation between cities counties in Texas was drawn cases Galveston Posnainsky, supra, Heigel County, v. Wichita 892, 19 Posnainsky 562. In case held Heigel liable in In gave and in tort case a liable. held not writing Posnainsky Stayton for this court in the case Justice following reasons: against 1. “No action lies of a ‘created subdivision state solely public purpose general applicable for a law all such given by subdivisions’ unless statute. 2. “In far quasi corporation so as a ex- exercises clusively public character, forced it without consent, simply thus, through state because the can such local agencies, essentially easily discharge more effectively duties own, its proper it is but that no should action be maintained against officers, negligence, it misfeasance, for the or even of its sovereign given by expression be an

unless action the same arbitrarily imposed duty. will which general they laws, . are 3. “Counties created and while municipal corporations sense, they in- in a restricted are voluntarily so, relationship and sustain to the a a state city incorporated They does sustain. to town or not created mainly state, carry policy out common to whole and not bring particular locality, to and municipality. advance the interest of the to advantage or emolument to the inhabitants of that municipal corporations that,

“It would far seem in so class, any incorporated, powers and however conferred exercise essentially to purposes public purposes pertaining on them for — general general the administration policy laws made to enforce the agencies state,- -they should be deemed — ocurring state, subject any not sued for act or omission to be unless, ac- power, by statute, while exercise of such given; that, matters, they should tion be in reference such to agents are, subject sovereignty, they stand as does whose only state, statute, they may be sued when declares be.” corporations voluntarily or assume “Persons that though quasi work, performance undertake the of a even be ought character, impliedly in its held to contract be they performance, will exercise due care in its damage. resulting neglect respect this should be wish, however, do to assert not understood “We be corpora- municipal there contract between the state and accepting that, charter, simply tion when such but to assert powers, law corporation accepts imposes giving charter defined gives exercising duty faithfully them, ac- an person neglect respect any tion for misfeasance in this may injured by duty.” who failure ^[*] “ ^[*] ‘The ^[*] grant the state to the municipality of a portion sovereign powers, acceptance its for these beneficial and their part regarded raising purposes, implied promise on the as perform corporation duties, im- corporate and as posing state duty performance, benefit merely, any in its but for the individual interested benefit of performance.’ may all, ,as municipal corporations,

“How if far counties at injuries resulting neglect, be liable for from misfeasance unnecessary inquire. in this case to far, however, powers “In so not of exercise character, voluntarily intended for the assumed — 'advantage locality and benefit inhabitants —there why they seems to be should relieved no sufficient reason damage an liability actual that to suit and measure of powers corporation exercising private same individual essentially private purpose be liable.” for a would Stayton was within From this is clear that Justice Anglo-American recognizing a concept a difference between big agent. grant power appointment and an as There is this English American difference between colonial and the modern key England King appointed county. In colonial in times county difference officials while now we elect them. And this probably meaning takes most the real traditional out of the grant appointment power distinction between a and an agent. Heigel County, supra, opinion

In case of Wichita in an by de- written in a Justice Gaines this court sustained against personal injury upon a murrer negligence maintaining claim based bridge. in a defective The court held: (1) Posnainsky In the liable case it is held that recog- circumstances, opinion under similar but that “the case applies nizes the doctrine counties.” that different rule toas “ * * * (2) damages may respond That cities made be injuries resulting discharge corporate failure their duties, practical is affirmed country courts of this with unanimity. very At generally held, the same time it is that injuries liability counties are not similar unless such by statute, necessary by express created either words ” * * * implication. “ * * * (3) corporations Counties are not fullest They commonly sense of corporations. that term. are quasi called They purposes government; are created the State for the political functions administrative, upon imposed privileges conferred them are rather duties than granted. Cities, hand, voluntary on the other cor- deemed porations; political functions, and while con- exercise it is granted sidered that their charters are much so with a view advantage to the interests of as for the their citizens. It ordinarily this distinction that the courts municipal base the in the applied difference rule of corporations proper corporations quasi municipal and to townships. hold, counties Other courts since against political State, is but a subdivision of the suit against State; is in effect suit therefore ***” Legislature. action not lie without the will consent of the says sum- Posnainsky may What the court case follows: marized as county city response

1. A not but created desire of its inhabitants. county carry are

2. A created to which out functions general perform functions and statewide. A is created to gen- may perform special and local its inhabitants also but eral and state-wide functions. against city or action

3. No can be maintained either a negligence for the even officers misfeasance of its performance general duty permission to sue unless given expression sovereign by arbi- “an be same * ** trarily e., legislature. impose duty” i. may against coun-

4. be maintained Actions both cities per- they “voluntarily ties where assume undertake * ** advantage private formance a work for the intended locality they im- benefit of and its inhabitants” because pliedly contract will exercise due care. Heigel may court

What the said in the case be summarized as follows: generally

1. It is held that failure cities are perform corporate duties counties are not liable while injuries” liability “similar unless created be statute. corporations 2. are are full Counties their duties imposed political County powers and administrative. are duties granted. privileges rather than voluntary corporations charters Cities whose

granted advantage for the of their citizens. Stay- completely

The two cases cannot reconciled. Justice (as dicta) for torts ton states that a would be liable acting capacity proprietary committed in a Justice while while opposite (also dicta). Gaines states the county’s passing I directly have found no Texas case on a acting capacity. a proprietary for tort In the while Improvement Dist. No. 1 County Water of Cameron case history, Whittington,12 no writ CCA said: the court irrigation im- the Constitution declaration of “The duties,’ rights ‘public

provements therewith are connected ‘shall improvement districts and that powers of corporate agencies politic and with and bodies priv- rights, government exercise such with the concerning subject-matter of ileges amend- and functions 59; Rev. (Const, may law’ art. be conferred ment as § infringed 7731), interfered with art. is not Stats. torts of that the was liable watchman state, employed, to con- not to some interest but advance corporation (Dillon Corp. Mun. serve interest of the alone 1650).” 1634 to § § Stayton’s page views C.J.S. 218 at follows Justice § proprie-

that a liable for committed would be tort tary capacity. says: It maintaining hand, county constructing the

“On other or public private, proprietary, work or in or volun- *” * * tary capacity injuries therewith; is for liable in connection throughout accepted generally

This view seems to be the Jurisprudence, 51, p. 218, United States. In American is the § following statement: given nonliability injuries “The reason for the of counties for performance governmental in caused the namely, functions — county respect that a should not held liable in of an act which performs any as an state arm of the than itself more the state Hodge Authority, App., 1942, In v. Lower Colorado River Texas Civ. 163 855, Whittington S.W. 2d error is the had ref. W.O.M. statement that the case County Drainage 6, been overruled Jones v. Jefferson Dist. No. Texas Civ. 861, ref., Matagorda County App., 2d, 1940 139 S.W. error Peters v. Drainage 1940, 1, App., 779, ref., Dist. No. Texas Civ 1946 2d er. I not do irrigation, so construe the writ in these refusal of the two cases. In addition to drainage police preservation organized power districts the under the general public (a function). governmental Wharton Drain- health In App. age 1912, 381, Higbee, ref., District No. 1 Civ. 149 er. v. court said: something question crea- “It will he else observed that enters into the of the lands tion of such benefit or value districts than the enhancement of the drainage public in the will ‘be conducive district. court must find to the utility,’ prerequisite or health he as a to the creation of benefit peculiarly general police powers district. These are matters fall within the of the state.” is applicable county not

should be deemed liable —is engaged where proprietary capacity in a injury when for which sought possibility is by held was exercise inflicted. The county private proprietary functions, with conse- quent immunity recognized many liability, loss of in * * *” cases. County (Sup. Idaho)

In P. Henderson Twin Falls Ct. 101 ALR the court said: * * “* * private of counties into The advance fields of enter- rapid- prise early progressed did commence as and has not cities, ly county as that so that enterprise How- has not become well torts so settled. recently Supreme ever, it was somewhat held Court Allegheny Pittsburgh Pennsylvania, Bell et ux. county County, 297 Pa. 146 A. A.L.R. that a negligence employees operating ele- for the of its liable maintained, owned, building, jointly city vator in a partly Pittsburgh, operated by the governmental although partly purposes, for person business governmental injured way office of a was on the engages city, ac- department of and that a not of a nature is for the torts tivities See, also, et employees v. Town of Lancaster therein. Cleveland al., App. Div. 267 N.Y.S. 673.” following following A.L.R. annotation In the this case (101 1169) A.L.R. : comment *

“* * involving proprietary or cases exercise of The few for are unanimous in liable functions injuries arising in therewith.” connection liability sovereign exempting from tort for The old basis wrong.” King de- do no cast in maxim: “The can points. This procedural feudal on of most law turned cision King could part proposition that the was based on the maxim pre- lord was the the feudal in his own court. Since not be sued recognized that siding court since was officer his own usually litigant judge, he man cannot both the same be However, him. when above answer in court next held to hold defendant, one him to King no above there was was the grant sovereign difficulty a could overcome court. This gov- many for which there torts permission sue. Now litigant permission held if secures ernment can be liable King wrong” now “The can sue. Yet the maxim do no is not recognize altogether procedural. certain There are cases which governmental liability, activity which there fields of for is no government though permission even to sue be obtained. When capacity proprietary plaintiff permission acts does not need Legislature liability exempt city from sue. Neither can the exempt capacity.15. proprietary when it acts we Would county operating tort power a street car line? Or an electric drinking system? for

distribution Or waterworks domestice use? I think not. should hold a We propietary just city consequently its torts would be lying hold liable entities between all shades of them. analysis questions

There ais correct of those in Holderbaum Hidalgo County Improvement Water Dist. No. CCA 297 S.W. affirmed in 11 where the court said: “Primarily, improvement po- a water district is in no better city exercising sition than a purely is when its local general duties. Its purposes public essentially are not nature, only incidentally so; purposes but are may those operating sys- likened to those aof a waterworks tem, irrigation system, or an such as in the Ysleta A Case. water nothing, district can do no has furnished facilities, government. sovereign the administration of the Its power officers authority have no any to exercise general functions government, of the any or to enforce any laws subdivisions, of the state or of its other taxes or collect other than those They assessed the district. have more no power private corpora- than that of the officers of a organized tion purposes. practical matter, like As a primary objects purposes purely district are of a nature, local operated for the sole is created and for the benefit of purposes members, its own analysis objects and and an of these they directly only

discloses that the landowners benefit who district, reside part within and whose lands form a to the exclusion true, of all other residents therein. It course, general that proper operation greatly the state and the benefited district, extent and to that Elliott, ref., The case of State v. CCA seem wr. er. would railroad). proprietary (Operation to hold the State liable for a tort of a Brannan, ref., 14. State CCA wr. er. 2d 347. Operation City Tutor, App. 1924, 15. of street cars. S.W. Amarillo v. Com. 698. nature, accomplishments public objects but only object primary incidental and chief characteristic irrigation forming corporation, which is the of lands then, part obvious, purpose of the district. It that of such do not come within duties districts the definition public rights, purposes, dis- and duties would entitle the exemption protection as a trict to raised the common law having corporations public purpose performing purely essentially public duties.” long ago Babbitt, supra, held

As Ysleta v. it was irrigation that within distribution water was local meaning Posnainsky case. The court said: opinion city

“We are this article the was authorized regulation supply control to assume the acequia, only uses, means of this not for domestic but also for irrigation, and, purposes limits; so, within its if it did it obligated permit proportion by those had its use due who City (Utah) entitled themselves to it. Holman v. Pleasant Grove By assuming exercising them 72. 30 Pac. these functions and through selection, officers of would liable in dam negligence ages done for the other officers tortious acts of its operation scope in the course and within of their duties. The system supply subject purely local of this of water was a benefit, does fall within those acts of a city may perform indi character which without Wagner City 127; Posnainsky, v. 62 Texas viduals. of Galveston Island, Corp. City of Rock Dill 146 Ill. 34 N.E. Mun. *” * * § applied recently The same test has been as Calhoun Company Richman, ref., n.r.e., 264 Canal error CCA 2d 738. V.A.C.S., organized, Art. under unit was which this specifically provides body corporate Art. shall be Josnainsky irrigation corporate defines function. The leading unquestionably field, has case Texas case in this great ap- times, quoted been cited number of with proval Smith, Dallas v.

872. We should follow it. act) grants (death

Plaintiff Art. contends that V.A.C.S. permission grant of sue, legislative but if there be no even particular unit, without to sue this should be suable Stayton Posnainsky presented in the Justice under the tests They case. are: voluntarily involuntarily by its unit created

1. theWas ? inhabitants carry policy “to out a common to 2. it created Was par- State, mainly and not to the interest of the

whole advance advantage bring locality, or emolument to” ticular inhabitants ? performance the falure of for which it sued a Was general special in- local

function statewide or to its ? habitants provide for

Art. V.A.C.S. and other related statutes organization only of this district after a vote favorable inhabitants, voluntary so it cannot other than a creation of its inhabitants. facts,

Under these I would hold: (1) voluntarily bring That this unit was created advan- tage to its inhabitants. (2) particular That the distribution of water lands through irrigation system special local. including irrigation,

Since the distribution irrigation system, legally maintenance anof has been and still is performed proprietary on a profit, basis for I would hold this proprietary be a and not a function. The Lower point Colorado River cases16 are not on tort

liability because, first, building of the dams was done prevent power, and, second, floods as well as sell because special Legislature was created under act of the not any. consent of its “inhabitants” if it can be said to have Willacy The Case Improvement Water Control & Dist. Abendroth, No. v. 142 2d does in- garnishment. volve tort majority but cites no case Authority McGraw, 629; 16.— Lower Colorado River 125 Texas 83 S.W. 2d Hodge Authority, Lower Colorado River Lower CCA 163 S.W. 2d Authority Colorado River v. Chemical Bank & Trust Co. CCA 461, affirmed, Hodges 190 S.W. 2d 48. In ease a writ of error was granted. paid Defendant then a substantial amount in settlement. exempt or water district from tort lia- either acting capacity. bility proprietary when in a a tort When water commits in- performance purely done local function to advance the advantage bring particular locality to its terest of the and to just inhabitants, negligence, as a held for its should be public utility This would circumstances. be under similar legal entity, de- step would make centralizing it more of a would government government, impose upon would irrigation privately rest same as now owned liabilities govern- against give company, protection people and would our rights by tort. mental invasion of their July Opinion delivered

Rehearing 1, 1954. overruled December

Case Details

Case Name: Bennett v. Brown County Water Improvement District No. One

Court Name: Texas Supreme Court

Date Published: Jul 21, 1954

Citation: 272 S.W.2d 498

Docket Number: A-4415

Court Abbreviation: Tex.