*1
commanding appellee
issued
theretofore
writ
patrons
charging
in said
desist
to
city
service than
for electrical
.lower
above men
prescribed
the ordinance
those
application,
refusing,
tioned,
on second
in
temporary
purpose.
for that
not confer
which de
orders did
these
jurisdiction
the enforcement of
extraordinary writ,
mands
and,
prejudge
granted,
in effect
pending
in the dis
untried
merits of the case
county. Therefore,
trict
of Collin
authority
following
is denied
Tipton v.
and authorities cited therein:
cases
Railway
etc.,
(Tex.
Postal
Ass’n
Civ.
113; Texas, etc.,
v.
Co.
170 S. W.
Taylor
;
(Tex.
App.)
CITY et al. LOUISIANA POWER CO. 10852.
No. Appeals of
Court of Civil Texas. Dallas. 8, 1930. Nov.
Rehearing Denied Dec.
*2
plant began operations
light
electric
in Feb-
ruary, 1930,
a
under
schedule of rates fixed
by ordinance,
investigation
an
as’ to
after
what would be reasonable rates. The sched-
ordinance,
ule fixed
after such inves-
tigation,
appellee
was tbe same schedule
bad
except
1928,
enforced until tbe increase in
cent,
provided
per
that it
for a 10
discount
monthly
promptly paid
on all
bills that were
Appellant’s light plant
when due.
the- current
furnished
'
lighting
for
wifhin its
the street
corporate limits, and increased tbe number
lights
of street
in-
had
been
-theretofore
Touchstone, Wight, Gormley
Price,
&
of
stalled,
appellee’s regime,
from 65
appellant.
Dallas, for
75, and also furnished
of
all.consumers
elec-
Abernathy, McKinney,
of
W. R.
power,
tric
its service.
In re-
who.desired
lees.
spect
installation,
opera-
purchase,
to the
and
JONES, C. J.
light plant, appellant
of
tion
its electric
con-
provisions
from
of
district
an
formed
tbe
of the
municipal corpora-
au-
statutes
county,
temporary thorizing
controlling
Collin
court of
engaging
Appellee’s
had been
that theretofore
tions
in such business.
hearing,
parte
in favor of
appellant
issued on an ex
city
the rates are much less than
is allowed
appellant;
Farmersville,
and,
charge,
also
-this,
of
to
tivity
ness,
of
ac-
result
and the
application
denying
appellee’s-agent
for an
soliciting
from an order
in
busi-
appellant
injunction, requested by
petition,
approximately fifty-users
appellant’s
on its same
power
changed
the motion to
electric
after the
have
appellee.
order dissolv-
dissolve
had and the
had been
temporary injunction
en-
been
May
1930, appellant
5,
passed
On
or-.
two
following a
tered. The
sufficient statement
having
purpose
regula-
dinances
tion of
for their
tbe
dis-
issues
to understand the
case
.
govern
rates
tbe
cussed:
public utility companies furnishing electric
municipal corporation,
Appellant
or-
is a
lights
inhabitants,
to its
as authorized
ar-
ganized
general
state
under the
laws
ticle
R. S. 1925. These ordinances were
Appellee,
Texas-Louisiana
of Texas.
regularly
duly enacted, provided appel-
corporation
Company,
Power
chartered
lant, at the time it undertook to assert this
Delaware, and
under
for some
inhabitants
the laws of the state
power
public utility,
of control over a
supplying appellant’s
has been
2,000 inhabitants,
required by
more
Article
a's
light
with electrical
1119, supra.
The verified
al-
supplying
in
has
towns
also
been
other
leged
2,000 population,
bad a
adjacent
Appellee M. D.
counties.
Collin
as shown
the next
census. The
agent
power
com-
Honaker is a local
subsequently enacted, fixing
ordinance
schedule of
opera-
general charge
corporate
pany
in
rates,
fixed the same schedule
appellant.
limits of
within
tions
by appellee up
that had been used
until the
power
com-
The
refer
term
year
slight
1928when it made the
increase
pany.
in 1926 to some date
From some date
rates, except
provides
that the ordinance
192S,
electric
in
furnished its
cent,
per
prompt monthly
a 10
discount for
published
rates, which
under a
allowed
schedule
payment,
presents
and tbe schedule fixed
payment,
prompt
no discount
charged
municipal
same rate as that
per
provided minimum rate
$1.60
which
month
prior
plant
enactment of the said or-
power.
user
electric
A
dinances.
slight increase, mainly affecting domestic con-
sumers,
published
in
was made
these
Appellee refused
conform
to the schedule
early part
until
in force
and-remained
of
schedule,
of rates fixed
tbe
and continued
entirely
February,
an
new
very
In force its
low schedule of rates
ex-
consumer,
up
price
lower in
much
prior to,
of,
passage
isted
tbe
put
force and maintained
to tbe
Appellant alleges
of
later
ordinances.
that this
hearing in
time of the
the trial court.
schedule of rates is
much below tbe
and distribution of the
production
year 1929,
cost of
During tbe
after considerable
current,
put
agitation by
Farmersville,
electric
it is
force
tbe citizens
express purpose
destroying
for
municipal plant
with
cause
dissatisfaction
tbe 1928increase
appellee may
in order
rate, appellant’s governing body
availed
monopoly
right,
have
business within
of tbe
accorded cities and towns
itself
corporate limits;
purchase
appellant’s
state,
-that
town
and install
own
tbe.
Princeton,
eight
distant,
light plant.
miles
machinery
This electrical
electric
.it
ebargés consumers,
old
payments
rates,,
purchased
on time
7,-ates
such schedule of
and enforces
in all
provisions statutes of'the
author-
state
Copies
purchase.
towns
serves.
municipally
other
of the various
izing smch
owned
n ordinances
to are attached
here referred
spe-
prayer
in its
temporary injunction is,
of a
for the immediate issuance
and are
exhibits to
effect,
attempt
Appellant
cifically
leges damages by
part
al-
an
thereof..
made
adjudica-
once,
wrongful
to
tion
an
secure at
advance of
reason
n present
a final
keeping
and before
trial on the merits of
in force its
*3
claim,
its
final
writ
been
the full relief
it
obtain
such
dam-
could
seeks to recover
of rates and
schedule
words,
temporary
allegations
by appropriate
trial.
In other
if
therefor,
ages
and
injunction,
parte,
damages.
exemplary
of
had
issued ex
seeks to recover
by
court,
position
dissolved
trial
injunction
permanent
on
Appellant seeks a
parties,
of
it
-the
as
existed at the
violation-by appellee
its
of
ground of
reversed,
controversy arose,
in that
have been
would
remedy
legal
has no
it
said
appellee
and not
would have
general grounds
and, further,
of
therefor,
on
occupied
position
seeking
of
to enforce a
independ-
favor
-equity,alleged
in its
to exist
right
wrongfully
which had been
invaded
establishing a schedule
ordinance
its
ent of
party.
the other
grounds
allegations
to both
Its
rates.
of
complete,
appeals
do not deem
we
interlocutory
but
In all
full and
from an
are
full
amake
granting
review
refusing
order
grant,
(cid:127)it
or
dissolv
Appel- ing
set out.
refusing
temporary
therein
dissolve,
of matters
statement
or
a
writ
prays
injunction,
immediate
question
the
of
presented is,
of
Did the trial
tering
also
lant
the sole
prevent
injunction
temporary
writ
of a
court
abuse its discretion
en
pend-
ordinance
of
violation
further
the order from which the
is
during
prevent
trial,
prosecuted
such
and to
case,
final
In?
the instant
alleged is,
further commission
Did the trial court
its
abuse
discretion in
prayer
appellee.
is
wrongful
Its
temporary
injunction
acts of
writ of
considered,
“Wherefore, premises
refusing
appellee,
on
follows:
motion
of
and
be cited to
injunction
temporary
plaintiff prays that -thedefendants
issue a
of
on
writ
'
prays
herein,
damages,
further
appear
answer
same
after the
order
dissolution
pu-
actual
judgment,
orders, therefore,
been entered? Both
for
nitive,
out, and present
set
substantially
hereinabove
amount
the same issue to this
injunction in the
perpetual
prays for
court.
further
premises,
restraining
further
from
defendants
interlocutory injunction
pro
An
is a
herein-
and conduct
in the
commission
above
remedy
hearing
visional
before a
allowed
on
out,
par-
and further
specifically set
object
preserve
the merits with the sole
issue
ticularly prays
forthwith
court
subject in-controversy
existing
in its then
con
injunc-
temporary
gracious writ of
most
its
merely prevents
doing
any
dition.
act
It
so-
tion,'restraining
from further
defendants
whereby
controversy may
energy
any
liciting
of electric
consumers
injured
materially
endangered
or
before a
take
cur-
electric
Farmersville
final decree can be entered
the court. The
corporate
exclusively
defendant
from
rent
rights
parties
are not concluded
rate hereinabove referred
said reduced
at
to
interlocutory
entered,
entry
as its
is not
restraining said defendants
and further
dependent upon
adjudication
of the merits
accepting any payments for electrical
general, may
In
of the case.
be stated
it
any
may
energy
customers
furnish
duty
grant
it is the
of the trial
a
court to
tem
may
after the issue of this
become
who
writ at
porary
injunction
when it is made to
specified
those
other
than
appear
controversy
a
substantial
there
Plaintiff fur-
out.
set
ordinance above
parties,
par
between the
one of
relief, general and
prays for
other
all
ther
committing
threatening
an
ties is
act or
may
equitable,
special,
to which
or
immediate commission
an
act that
de
equity entitled.”
in law
stroy
quo
controversy,
status
before
alleges
it' a full
can be
merits
While
wrong-
judgment
damages
pronounced.
reason of the
the case and final
suffered
has
ful
tinuing
It
putting forth,
generally
and con-
also be stated
acts.of
duty
force,
application
schedule
rates much
court
an
of a trial
to refuse
by ordinance,
injunction
temporary
the rates fixed
and for a
writ of
lower
when the
damages
recovery
thereby,
operation
suffered
effect of the
seeks
such writ would be
recovery
only
quo
change
incidental to its main to
controversy!
permanent
real and
matter in
E.
James v.
suit.
Wein
.permanent
(Tex.
App.)
S.W.(2d)
issuance of a
is the
stein & Sons
Com.
therein;
restraining
promul-
injunction
gating
and cases cited
Welsh et al. v.
(Tex.
S.W.(2d)354,
rates other
schedule of
than that
Carter
therein;
ordinance. The suit
C.
therefore
cases
fixed
cited
J.
cases
injunction suit, invoking
necessarily
that-;
primarily an
notes.
the cited in
follows
prevent
granted
temporary
equity powers
of the court
con- if a trial court has
acts
alleged
injunction
tinuing
wrongful
commission of
first condition
'of
.named,
above
by appellee
appellant’s injury.
discretion;
is no
abuse
writ,
using
refuses
or dis
if
franchise
promulgated
extremely
solves a writ of
theretofore
low schedule
conditiop
granted
challenge
parte
rates.
ex
second
controversy
precipitated
in this
mentioned,
no abuse
there could be
above
parties
between the
which
in the
culminated
discretion.
filing
pre-
suit. The status
to be
Applying
principles
instant
the above
served
the court is the condition
if
parties-and
controversy
their relation to the
hearing,
granted
without
as it existed at the time this
ordinance
preserv-
performed
have
ing
the function
came
effective. Such condition was
subject-
the then
condition
prior
for some weeks
to the enactment of the
suit, then the
in the
matter
court
such had been
ordinance, appellee
using
this reduced
writ;
rightfully granted
light.
rates for electric
*4
condition,
have
it would
the
The
would
judgment
suit
seeks
that
injunction. On the
the
to dissolve
been error
other
existing status,
compelap-
this
temporary
hand,
operation of the
if the
pellee
schedule,
to abandon its reduced
injunction
as to
such
have been
would
adopt.the
prescribed by
schedule of rates
the
change
of the
then
condition
the
injunction
temporary
ordinance. The
issued
effect,
controversy by
appellant, in
giving to
gave
appellant
equity
to
at once the full
by appellee
occupied
position
in
hitherto
the
prayed
upon
hearing
it
for
final
of the case.
right
respect
property
franchise
in its
to the
court,
on motion of
dissolved the
denying
appellant
asserting and
was
injunction thereby leaving the status of the
right
assert,
time the contro-
such
versy arose,
to
at the
parties as such status
existed
time the
of dis-
then
was an abuse
there
controversy arose. There was no
in
error
injunction,
granting
cretion in
the
this.
change,
operation
to
have been
cause its
would
quo
preserve,
of the
in
the status
not'
equally
po
There is another reason
controversy,
was no error
the
there
why
tent
ing
the trial court
in
did not err
dissolv
Hence,
subsequent
order
dissolution.
temporary
injunction
in
question
specific
to be de-
that
follows
refusing
grant
peti
such writ on the same
this
whether was neces-
cided
sary
tion after
was entered. The writ
injunc-
temporary
issuance of
temporary injunction
by
appellant
quo
contro-
tion maintain
of the
place
parties
exactly
in
the same
versy
hearing
in
case.
until
final
they
position
placed
appel
in which
if
be
By
suit, appellant
its
has invoked the
prevail upon
lant shall
a final
of the
equity
jurisdiction
of a court of
appears
case. It therefore
final relief which
that the full and
permanent
by
aof
relief
to
means
seeks
the main
only-
adopt
compel appellee
and use
purpose
by
suit would
its
be awarded it
power
by
for electric
fixed
temporary injunction,
issuance of a
without
In order that
final decree of
its ordinance.
giving
day
court.
its
equity may operate upon
par
a
ties and
such
temporary
injunc
not the office
tion,
aof
subject-matter
litigation as'
of the
only
exceptional
cases could
time
at
existed
injunction
temporary
granted.
effecting such result be
jurisdiction
invoked, it is the
court’s
was
Sons, supra;
James v. Weinstein &
general rule that
status
of the con
al., supra;
Welsh et al. v. Carter
32
J.
et
C.
maintained, pending
troversy
should be
20, supra;
al.,
Fredericks
al. v.
et
Huber et
case, and it must
trial of merits
be
supra.
appellant
believed the
that
inferred
was
of the
1925,
Article
R. S.
that:
declares
by
purpose.
meant
What is
to effect
body
governing
“The
of all
cities
towns
quo” as
thus used?
“status
the term
population,
this State of over two thousand
actual,
general
last
rule is
it refers to the
incorporated
general
thereof,
laws
parties
peaceable,
status of the
noncontested
power
ordinance,
regulate by
shall have the
pend
controversy,
preceded the
which
to
ing suit,
by
charged
the rates
all
*
to be
preserved
until
should be
which
water,
light
gas,
companies.
and sewer
.
”*
can
entered Fredericks et
*
final decree
a
al. v.
By
Legislature
article the
this
90;
al.,
Pa.
A.
Huber et
delegated
body
governing
this
has
state
C. J.
2,000 popula
all cities
and towns
over
right
fix
actual, peaceable,
tion the
ordinance
What
rates to
was this last
preceded
charged by public
operating
which
status
the fil be
utilities
non-contested
ing
within
corporate
city
Manifestly,
suit?
this
limits of such
must be de
the
is
town.
only through
delegation
parties
power
from the
this
status
termined
the
appellant
subject-matter
suit,
appellant
pass
had the
ordinance
given
ordinance,
question,
and it
enacted
in
the event there
this
this
corporate
formal
is within
the
lenged
act
which
first
chal
limits
2,000
property
exercise
more than
of the
inhabitants.
Appellant
(1)
tliat there should
contends
respect
that,
trial,
this
at the final
so
above-quoted
en-
this
clause
read into the
shown
exist.
introduce evidence
phrase, “as
next
shown
actment
’
opinion
We are therefore of
that no abuse
census”;
(2)
United~States
court,
of discretion is
trial
shown
contention, then the
mistaken in this
it be
judgment
should
be affirmed.
necessary popula-
of the existence
fact
Affirmed.
governing
tion
body
determined
must be
attempting
city
to exercise
of the
presumed
that the
must be
Rehearing.
and that it
On Motion for
attempt
body
governing
did not
rehearing, appellant
In its motion
power until it had ascertained
to exercise such
earnestly
original opinion in
insists that the
Ap-
required population.
of the
the existence
holding
ease
in error
the rec
pellee
required
alleges
population
ord
raised the issue
before us
fraud
passage
not
exist at
did
governing
to the'determination
proof
and submitted
establish-
rate
body
requi
of the fact that
had the
appellant’s pop-
count
that the
fact
population
2,000
site
of more than
when the
ulation
1930 census enumerator
making
rate
en
ordinance
was
did
in.
passage
completed prior
been
ordinance,
acted,
appellee’s pleading
re-
had been
count
raise such issue.
It is
true
of commerce and
checked
chamber
specific pleading by appellee presenting
no
finally accepted
*5
population
as
established
the
issue,
original opinion
and the
so holds.
time,
popula-
at said
and that
ap
pleadings
A re-examination
both
materially
consisted of
tion thus established
pellant
appellee, however,
us
convinces
1,878. Appellee
2,000,
not
did
wit
less than
specifically
ing body,
to
necessary
that the facts
to raise
issue
such an
govern-
appellant’s
plead fraud
alleged.
paragraph
appel
are
The first
ascertaining
requisite popula-
following allega
lant’s
contains the
authorize it
exercise
tion
power
port
plaintiff
tion: “That the
at the time of the
making.
re-
census
of rate
purchase
municipal p[ant,
of the
as herein
population in
shows that
out,
adoption
after set
and the
or
the rate
2,000inhabitants.
excess of
dinance,
mentioned,
city
hereinafter
appellant’s
first contention
overrule
We
population
2,000
of over
as determined
nothing
ground
in the en
is
the next
Federal census.” This is
Legislature
intended
actment to show that
to
only allegation
respect
the
to
making
report
any
aas
census
take
United States
appellant’s population
at
time the rate
population..
required
ar
basis for the
allega
ordinance was enacted. This
delegating power
a law
ticle in
a subordinate
authorized to
is
capable
tion is
that of an admission
of no construction other than
body,
legislative
and we are
gov
that its
City
its terms.
of Hous
extend
erning body determined the
of the
existence
Magnolia Park,
S.
115Tex.
276 W.
ton v.
necessary population
city
of the
alone
Castleman,
685;
112 Tex.
Williams v.
report
the fact
1920 census
that the
showed
S. W. 263.
required population
existence
reasonably apparent
think it
We
give
statutory right
to exercise the rate-
city
population of
or
made
town
that the
making power. Appellant’s attorney, in the
subject
legislative
must
enactment
the
be determined
of this
rehearing, adopts
motion for
such construc
city
particular
time the
at the
argument
tion
in-his
to the issue
delegated
attempts
exercise
or
town
legal
argument
part
fraud. This
“His
is:
attorney)
agree
granted by
enactment. We
petition (the petition
drawn
appellant’s
contention that the as
second
with
plead
upon
disclosed
which the
he
the evidence
requisite pop
certainment of
fact
population
determined, viz.,
body
governing
of
of
ulation
the
the
erning
article,
is committed
returns, being
the 1920Federal census
last
desiring
city
to avail itself
or town
published
official
purview
rendered
census
within the
provisions
gov
When a
article 1119.
Spikes (Tex.
of Holcombv.
provisions
body
under
No. Appeals of Texas.
Court of Civil Texarkana. Nov. 1930.
Rehearing Denied Dec. granted.
*-Writ of error