2 F.R.D. 560 | S.D. Tex. | 1943
This is a suit brought by the City of Edinburg, Texas, a municipal corporation, against the Central Power & Light Company, a Massachusetts corporation, seeking to recover penalties in the sum of $10.0 per day for alleged noncompliance with Articles 1121 and 1122 of the Revised Civil Statutes of Texas, 1925. Both plaintiff and defendant filed motions herein, whereby each seeks to obtain a summary judgment in its respective favor. Considering the pleadings, affidavits on file and briefs submitted in this case, it is clear that there is no genuine dispute as to any material fact and that, therefore, Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c applies. Based upon the pleadings, affidavits and briefs, the Court finds that at all times material to this suit, the defendant, Central Power & Light Company, was engaged in operating public utilities in more than one municipality, and that, therefore, said Articles 1121 and 1122 of the Revised Civil Statutes of Texas do not apply to the defendant, Central Power & Light Company, and that said defendant was not legally required to make reports to the plaintiff. The City of Baird v. West Texas Utilities Co., decided by the Supreme Court of Texas, and reported in 136 Tex. 148, 148 S.W.2d 392, reads as follows: “We agree with the holding of the Court of Civil Appeals to the effect that Articles 1121 and 1122 apply only to public utilities operating in one municipality.”
Believing as this Court does that 'the question here involved has been directly, clearly and correctly decided by the Supreme Court of Texas as above set out, and that such decision is binding upon this Court, it is this Court’s opinion that the summary judgment sought by the plaintiff, City of Edinburg, should be and the same is hereby denied, and that the summary judgment prayed for by the defendant, Central Power & Light Company, should be
