*1 Emрloyers’ Ins. the cases Texas considered have We history; Horn, writ 2d S. W. CCA Ass’n. v. Patton, 2d Ins. W. Co. v. CCA S. & General Traders point dismissed; concluded that er. have wr. incorrectly decided. Appeals Accordingly, judgment Civil the Court of trial is affirmed. and the court reversed (defendant below). against respondent taxed costs are February 1952. Delivered v. J. Wiggins Texarkana, Texas, A. et al. February 1952. A-3273. Decided
No. Rehearing overruled March 26,1952. (246 Series, 622.) W., S. *2 Calvert, Smedley, Griffin, dissenting. Justices Garwood and Russell, City Attorney Texarkana, Norman C. and John Raffaelli, Texarkana, D. sys- for Texarkana and sewer tems,- petitioners. City obligations legal
The of Texarkana was under no disposal to furnish water and sewer servicеs non-resi- city, dents said if and should elect to do so it sell such services to non-residents under such an terms conditions may appear city, to be to the best interests of said and it was error for the Court of Civil to hold that said did (3) not have the provide Article 1108 R.C.S. for rates water and sewer services in this and case made applicable same City Austin, non-resident citizens. Nalle v. 375; City 21 Hamner, 191; S.W. v. Sweetwater 259 S. W. City Raleigh, Atlantic Construction Co. v. 230 N.C.
S.E. 165. Brown, Brown Texarkana, respondents. and for Texarkana, govern- having stepped out of its capacity, engaged mental proprietary functions and and in a corporate business, monoply as a water and sewer business —the subjeсt regulations —it laws, became same rules and private corporations private owning oper- individuals ating public monoply utilities as a and must services to furnish partons all price terms, for the same on the same under simi- Carrington, lar writ P. L. conditions. Dallas & Co. v. Montgomery dismissed; Greene, 180 Ala. error 900; Hearne, So. 2d 979. Bland v. 95 S.W. opinion Mr. Court. Justice delivered the Smith Respondents, Texarkana, all nonresidents of the seeking against City, Texas, Petitioner, en- filed this suit join municipally-owned operation water water and of its higher charging systems sewer nonresidents from residing by persons paid within rates than those sewer corporate limits judg- Petitioner, the trial court rendered *3 reciting tо de- heard evidence ment termine the case on its merits. the court sufficient the and This was reversed Appeals. by 239 S.W. the Court of cause remanded Civil is us on writ of error. 212. The case before August, City Texas, Texarkana, the Prior by surrounding territory, American Water was served utility corporation. privately-owned time Works, Inc., a At that utility corporation purchased all the Petitioner property from surrounding territory, payment serving city being proceeds the sale revenue bonds derived from made with city. previously An citizens of the authorized vote adopted city, August 27, 1948, for on ordinance of the enacted municipally of rates theretofore owned the schedule charged by Works; of rates this schedule the American Water system August 8, rates in effect until 1950. remained charged by was, course, nondis- the American Water Works criminatory and nonresidents were in both residents charged for service. the same rate providing August passed ordinance Petitioner an On furnished would nonresident consumers that water service to applied cor- within the which at one and one-half times rate provided porate further limits of the The ordinance “at furnished to nonresident users would be sewer service applying A water limits.” rate within rate double the tapping system charge for resi- for all connections to the tap- $50.00; the water use was fixed at dential outside charge ping on un- set at for within the users $10.00 paved paved streets, streets. and $15.00 City Respondents Texar- North are all residents of the kana, Texas, adjoins north. The Petitioner on the which Texas, Texarkana, City are num- east-west streets consecutively, beginning with 1st Street the business bered continuing Texarkana, Texas, City 36th district of the marking line of North Texarkana. The Street Texarkana, Texas, lies in limits of the streets, center of 29th The north-south which continue Street. through cities, throughout their en- bear the names both same lengths. short, geographical tire In line which the rate marking arbitrary differentiation is based is an line a political subdivision. legal duty Petitioner is cоntends that under no furnish sewage ; disposal Respondents water and service to the that if it legal Respondents does furnish such service is under charge charged Respondents rate the same residents, charge appears but that it make to be the best interest of the This conten- Texarkana. latter provisions tion based of Article section R.C.S. Texas, provides: which “Any town or in this State which has or chartered organized general Texas, special or under the laws of or Act charter, operates waterworks, sewers, and which owns or gas lights, right: power electric shall have the
[*] [*] [*] [*] *4 “3. To extend the systems lines of such outside of the limits of light water, sewer, gas such towns or cities and to sell and electric power privileges and any person corpora- or service to or cities, tion outside of the permit such or towns them to connect city therewith under contract with such town or appear terms and conditions as to be for the city; provided best interest of such town or no that electric lines shall, purposes section, for the stated this in extended into corporate incorporated city.” limits of another town or Respondents operating contend that in its water systems acting and sewer proprietary capacity, is in its subject is regulations privately-owned rules same and utility corporations engaged business, in the same or similar and that August rates 8, established the ordinance of 1950, being discriminatory, void and their collection should enjoined. agree
We cannot
with
contention
Petitioner’s
this stat-
charge
discriminatory
is
ute
authorize it
a
sufficient to
rate
furnished to
utilities
nonresidents than to its residents.
case,
Under
facts in this
has dealt with the residents
and
unit.
con-
nonresidents as one class or
The ordinance under
purchased
main-
sideration
has
and is now
recites that the
taining
operating
without the limits
said
within and
municipal
system.
1948 the same rates have been
Since
charged
living
No other
and without
consumers
within
utility
to furnish water and sewer service.
within the area
exists
rendering
engaged
in
one
common-law rule that
1 The
service affected
strictly,
public
or, more
what
with a
interest
utility service,
not discriminate
known as a
come to be
has
similarly
persons
situated
or service as between
in
standing
recognized
long
that it needs
so well
of such
citation
support
it. The economic nature
type
enterprise
courts
is such that the
renders this
service
which
imposed
there is
to treat all alike unless
have
Statutes have' been
for a differentiation.
some reasonable basis
enacted
making
every
common-law rule a
almost
state
(4th.
1932)
statutory
Pond,
Utilities,
sections
ed.
one.
Public
required to,
Hence,
270-275.
did,
the American Water
was
Works
Respondents
as was
at the same rate
render service to
charged
Petitioner.
within the
limits of
pur-
Petitioner,
It is settled in this state
property
privately-owned
it of the
chase
subject
unjusti-
prohibiting
rule
unreasonable
this same
Kenner,
v.
and service. Galveston
fied discrimination in rates
(1922)
In-
;
Lockwood
Houston
111 Texas
S.W.
App.
dis’m;
Co.,
writ
vestment
Tex.
Civ.
App.
Highland
Guthrie, Tex.
Park v.
Civ.
269 S.W.
prevails many
states. 43
This same rule
other
writ refused.
172;
Am.
section
basis discriminate similarly in or between service as those
105 concept pro- transported Many decisions have situated. governmental distinguished capa- capacity, from a prietary as governmental involving a liability unit city, from the cases involving duty agents these decisions torts for the of its utility municipality at nondiscrimina- a to offer its service concept a fоr the rule rates and found in this basis have is, however, proprietary capacity concept of set out above. The helpful rule hardly The real reason in situation. concerned, that, treatment of is in so far as consumers privately- utility municipally-owned no different from is utility business has the economic nature owned change spite changed; monopoly in in not it remains ownership. change private public may, ownership theory from in motive, least, profit or lessen the
at eliminate but consumer utility pick supplier still services cannot and choose his grocer. utility as he does his water consumer is thus at the monopoly and, reason, mercy utilities, rеgardless for this ownership, be, been, of the character of their should and have subjected to under forbidding control the common-law rule un- reasonable discrimination. question pass do
2 whether the We Petitioner legal Respondents sewage to serve with under a pass question disposal, nor do we on the whether the rates Petitioner, charged by whether within or without limits, required to be are “reasonable” term is under- public parlance (i.e., yields stood “reasonable”rate value”). assuming return fair But “a fair on that Petitioner has serve, follow, duty to it does not under no the common-law rule having least, elected to serve it do at so on such terms impose. The Petitioner, being chooses to contention that the obligation legal serve, may do so on such terms as brings impose argument it chooses to before us a familiar in a guise. old, logically argument appealing, It new is the greater power, governmental unit: the having includes the lesser that a greater power granting withholding privilege perforce power service must have the offering lesser privilege impose. service whatever terms it That this necessarily is not true is demonstrated doctrine un- many constitutional applying conditions. Of the cases this doc- Co., trine Terral v. Burke Construction 529, Sup. 257 U.S. Ct. L. Ed. A.L.R. Telegraph Western Union v, Kansas, Sup. Co. 216 U.S. Ct. 54 L. Ed. *6 enjoin Secretary to illustrative. former case was a suit the revoking license of the of Arkansas from the of a State State foreign corporation had, contrary to law of the which statute state, removed a suit from the to the federal courts. The state argument against made, was affirmance of the of the granting injunction, trial the Arkansas court the that State of having doing authority grant privilege the to or withhold admittedly did, state, it in as it could condition the business grant privilege any of the in manner in other manner this it argument rejected by court, saw fit. This was which stated “* ** may not, imposing that, in conditions State foreign doing State, privilege corporation’s aof business right of courts, it a waiver the exercise of its constitutional exact from privi- to resort to the federal thereafter withdraw doing right, lege business because of its exercise such analogy in advance or not.” The between the waived whether argument case, supra, in in the Terral the instant case and that is clear the answer in this case must be the is clear. It also assuming there; as reiterate: that the same it was we therefore legal by means fol- is under no to serve it no Petitioner that, having serve, may do elected to a discrimina- lows so by tory imply basis. We do not mean to citation this express that the ordinance is unconstitutional. As this we no greater illustrate, however, opinion. These cases do always impor- power does not include the lesser and we think what tant that understood for it has the source of be been decision, jurisdictions, we conceive error in in other question us. before being unjusti- subject prohibiting The Petitioner to the rule service, ques- fied discrimination between consumers presents any justification is fact tion treating itself whether there Respondents differently residents than the contains, complained on its The ordinance Petitioner face, rates, justification. far The difference in so ordinance, entirely upon the location of based shown not contend limits. The Petitioner does vary Respondents justify supplying the service so costs any and the record is devoid evidence the difference pointed a contention. out upon which to base such As opinion below, in its the discrimination Court of Civil ground justified cannot on the the residents Texarkana, acquisi- Texas, pay for are liable to taxation to system. brought again, then, tion the water what is We only apparent from the record of this difference be- case: pay pay less for those who who more tween consumers *7 in the fact that the former reside service lies Petitioner’s 29th while the latter reside South of Street. north of 29th Street themselves, municipal corporation, of do not fur- The of a Dallas Power nish Light basis for rate differentiation. & a reasonable App. 1922, 1046, Carrington, Tex. 245 S.W. Co. v. Civ. Greene, 1913, 322, dis’m; City Montgomery Ala. v. 180 writ of Metropolitan 900; County Sewer 60 So. & Louisville Jefferson 1948, 413, Seagram Sons, Ky. Dist. v. E. & 307 211 J. 122, 4 annotated at A.L.R. 2d 596. City Montgomery Greene, supra, The v. which case of of approval Light
cited with Dallas Power v. the case of & Co. Carrington, supra, Supreme was decided the Court Ala- very present bama on similar the facts to case. The Court there said: stated, general may proposition law,
“It as that a corporation municipality, supply or authorized to water or lights municipality, may to the inhabitants of a not discriminate charged, among as to Ferguson at the rates least those of the same class. Birmingham Works, Water 164 Ala. 51 South. (N.S.) 674, acceptance by 27 L.R.A. and note. ‘The a water company with supplying its franchises carried it the along persons mains, discrimination, all its without with the commodity organized which it was to persons furnish. All are equal entitled to have the same service on terms uniform Co., rates.’ of Mobile v. Bienville Ala. 30 South. arbitrarily 447. The service cannot be limited to such consum- technically ers as municipality, although are residents of the right living persons city beyond within may or depend upon sufficiency supply contiguity and the or remote- persons Cyc. 793, ness of such cited; from the mains. 40 and cases Eng. Encyc. Law, Am. & 419. It be that optional city act with the as to whether or not it left beyond attempt supply corporate would to water its limits to points police jurisdiction, attempts but, within its when it to do so, uniformity, it must be with without discrimination; and, mains, the citizens- Cloverdale its should be if given general the same rate as rate others uniform mains, along rate, or its and a wholly upon different fixed demarcation, as the lines line in the absence physical differences, is- an unreasonable This rule classification. applies municipalities operating their oton system, corporations, well to individuals or supply who undertake lights.” (Emphasis added.) water then, rules, ordinance is void. the common-law
3 Under changed by petitioner contends that all this has been But referred to above. The Petitioner asserts that “the crux statute analysis of this case in its final rests a construction of section Article R.C.S. of Texas.” This has been article nothing language which would set out above. We find in this discriminate, pleasure, authorize the at its between gives patrons. part merely first the section right residing persons beyond to extend its cor- service to language porate limits of This the has done. permit “or them to connect therewith under contract with such appear such terms conditions as town city,” town or if construed for the best interest *8 view, primitive Petitioner’s would return us to the with accord development utility cоntrol when rates were determ- state of friendship political power pressure. Troxel, Eco- ined 63-65, (1947) pp. nomics Public Utilities 667. This we cannot purpose to have the intent and of the statute nor believe been language compel such as to such a conclusion. The lan- is its guage rates, but, contains no reference to assum- of the statute ing gives provision power rates, fix that this Section granting power, express authority the unreasonably discriminatory rates, of such without to fix
implies the rate fixed that be, reasonable, pursuant if thereto shall at least not dis- criminatory.
The Petitioner makes no contention that it could exact of one charged nonresident one one-half times the rate another nor it contend could nonresident does that it thus discriminate that, Indeed, very it clear its residents. seems even between reading it, read statute Petitioner would have us this contention, could not be done. The essence of the Petitioner’s then, this; can be no more than statute establishes among classes of consumers which the Petitioner discrimi- justification. nate without find no We classification consumers language authority in the nor the statute do we find for un- justified True, expressly discrimination there. statute au- city desig- city thorizes a nating to serve nonresidents of the so has, perhaps, them it so classified them. But when the reasons for the enactment of the statute are considered we think legislature it clear that did not intend to create a class of against city consumers any which the could discriminate for legis- reason or without reason. The statute was enacted as the prior courts, answer namely City lative to two decisions our Sturgeon, 1908, App. Paris v. 50 Tex. Civ. 110 S.W. Hamner, Tex. history, Civ. Sweetwater writ App. 1923, former decision held 191 writ dis’m. The authority, municipal corporation this was without nonresident; state, supply the latter water to a to contract municipal corporation was decision held that a without supply municipal limits to to extend its lines outside conferring exрressly passed to a non-resident. The statute was and, being authority, directed as it was cities the benefit of it natural should be nonresidents is but designated. so city think the effect of the statute is that when a decides We power provide
to exercise this service to customers fix outside limits it then such service higher charge requires; requires decides situation if it against service, is fixed than residents of the for the same city may higher fixes, exact the rate. whatever a rate But thereby status between the and its outside customers is change arbitrarily established and the cannot thereafter discriminate, discriminate, rate so as to or further between them residing certainly and customers This conclusion is principles public utility in line with well-established law. change For these reasons we hold statute did not prohibiting the common-law rule unreasonable discrimination. *9 The ordinance show, is therefore void unless the Petitioner can cause, on another trial of the that there is some reasonable basis for the difference in rates which it establishes. In order that opportunity showing the Petitioner a have an to make such Appeals reversing of the Court of Civil and re- manding the cause is affirmed. Opinion February 6, delivered 1952. joined by Smedley, Calvert, Justices Garwood
Mr. Justice Griffin, dissenting. I dissent. by majority contrary
The conclusion reached to the overwhelming weight by of as evidenced the decisions question in those applicable states which the has decided been City common Atlantic law rules. Const. Co. v. of Raleigh, 365, 165; City 230 53 N.C. S.E. 2d Barr et al v. Council Augusta (three cases), 750, 756; of 206 753 and Ga. 58 S.E.
110 Lexington Jones, Ky. 719, 825; City 289 160 v. S.W. 2d Lexington, City Ky. 606, 311 224 19; v. Davisworth 2d al, City al Kasun Ariz. 649; Phoenix et v. et 2d reasoning Typical A.L.R. 84. of the all the 127 language Pac. Kentucky Court in the courts is Lexington years permit- had for The case. Davisworth citizens connect with the non-resident suburban ted charge. an In 1935 the enacted ordin- system without sewer charge non-resident use which was levying ordinance ance case, supra, and in 1948 another ordinance in the Jones upheld increasing charges use from a thе non-resident passed year range per to a of from range from $9.00 $25.00 $4.20 validity year. ordinance per was attacked to $200.00 discriminatory against ground that it was non-residents. said: The Court particular problem, heart of our
“Appproaching the we permitted has non-residents to use its ask: Where years, may require system for them to number sewer by query posing use? The is answered a counter- such discontinue City’s Why its not? The essential duties owed to question: upon any city have no lawful claim Non-residents inhabitants. wholly Any use of facilities non-residents service. estoppel) (in absence of contract or permissive Lexington legal right. In this case has done no more based be, permission, acquiesce in would what without its than property by appellants similarly trespass and those licensees, acquired pre- The latter became mere situated. rogative claim to a license. It continuance follows * * * then, City’s at consent could be withdrawn will. If altogether, City may clearly may the service fix discontinue paid own discretion the in its those who wish its continuance.” only support law found in of the common view case opinion majority
expressed is the Alabama case Greene, City Montgomery 180 Ala. later So. length 783, quoted appeal, from 187 Ala. So. at therein. quotation It will be noted also from the that the Alabama court *10 a held that could not refuse its water service to non-inhab- itants, holding clearly contrary authority a all found on subject. only by majority, opinion in other authorities cited
support municipal corpor- of a its statement that “the limits of ation, themselves, of do furnish reasonable basis for rate
Ill Light Dallas Power & Texas case of differentiation” are the Carrington, Kentucky Louisville and Company case of v. Seagram E. & Sons County Metropolitan Dist. v. J. Jefferson authori- None of these 2d 596. the annotation in A.L.R. any majority comfort. this court can afford the ties Carrington by Civil the Dallas Court of case it in- regarded any precedential value because cannot appliс- application private utility of statutes volved a court, by utilities, a divided only private decided it was able indicating, Court, granted Supreme by the of error was writ opinion, writ disapproval majority and the anything, if agreement by of the entire suit was thereafter of error causing thereby by Supreme parties Court dismissed It has never same as if it had never been filed. status be the any point here in issue been cited as on the since any far as I have been of this state or of other state so court able to discover. reasoning Ken-
It is somewhat difficult to follow the Seagram tucky Appeals in E. case. There Court of the J. & Sons corporate lines and werе rate involved other than mere factors fixing of a rate the case for trial for the the Court sent back factors. The court neverthe- non-residents based these Lexington Jones, supra, with less cited the case of the approval, opinion “If and in course of its said: the basis (in for the differential rates between resident and non-residents Louisville) merely geographical in were this case legal residential, consequences would different. The enjoyment property by real basis is the use and class who one (emphasis ours.) owns it and another class More- who do not.” over, paragraph the Davisworth case cited in the first of this opinion Kentucky is a later case court and if there is any opinion conflict case is the latest and the Davisworth controlling expression Kentucky court.
The annotation in 4 A.L.R. 2d is more an annota- 595-612 agencies courts, regulatory tion of decisions of state than but so, majority even an examination will reflect that those support decisions the conclusions of the annotator the com- beginning mon At law rule advocated in this dissent. general (bottom page 596)
annotation we find this rule: great majority point support “The the cases found may generally discriminate, public the rule that utilities respect rates, between consumers within and those outside *11 decisions of municipalities served.” A host of cases and support agencies regulatory cited in from nineteen states are municipally particular owned reference to a rule. With municipally
waterworks, says (top page 599) “A : annotator system supplying owned water its waterworks without may, generally, charge than is more for that service charged within cor- users of the water service who reside porate limits.” important, directly majority
More conclusion is con- trary plain provisions controlling statutes, to the Article 1108, Section is now 1108 was first Y.A.C.S. What Article original act, enacted in 1909. amendment, nor the 1935 But neither 1937, imposed any subsequent nor a amendment dfwty on a to еxtend its water or sewer lines outside limits or sell its sewer water or services to non-residents. mandatory; permissive Article 1108 in character. applied language question As to the now before us paragraph interpreted by of3 1108 has never our Article been courts, unambiguous plain no doubt because it is too require interpretation. When the statute declares may permit non-residents to connect with water and sewer lines and facilities “under such terms or conditions as appear to for city” the best interests of such town or it can nothing says. mean exactly more nor less than what Article 10 of our statutes directs that words used in statutes shall be given ordinary signification. signification their ordinary the word “terms” statute, in the context of this which contem- plates furnishing certainly pay, services embraces the idea of connection paid. and rates to be
The citizens occupy of North Texarkana do not the same relationship toward the of Texarkana as do its own citizens. primary purpose “The municipal corporation of a con- is to welfare, health, tribute towards happiness public inter- est of city, the inhabitants of such and not to further the inter- residing est of those outside its limits.” of Sweetwater Hamner, Tex. App., Civ. 195. The Texarkana owes to its own citizens a see that their health and protected through continuing welfare are avail- ability of water and sewer lines and owes no facilities. It duty to the citizens of North Texarkana. furnish It and sewer services and facilities to residents of North Tex- long arkana only so long so as the munici- residents of that the authorities pality for such services and contract *12 the being furnish in municipality permit; under no to but services, reasonable may it discontinue such first instance Being notice, the entitled to discontinue with or without cause. according want, City con- can it follows that the services to its com- and This was its tinue them on its own terms conditions. right. statutory right. mon law It is now its City majority opinion of Tex- does not hold that the it arkana could and sеrvice not withdraw the water sewer non-residents; opinion the it that it could .The furnishes assumes ordinance, statute, does not hold it is that the or the we take unconstitutional; not assumes that it is constitutional. It does give hold power that Article Section does not to rates; seems, therefore, that assumes it does. It that judgment of the Court of in the face Civil is affirmed plain wording reasons, of the of the statute for follows: two (1) “Assuming “gives power that” 3 Section of Article 1108 rates, granting power, express to fix of such without au- thority pursuant be, reasonable, to fix thereto shall if not at discriminatory”; although least not (2) city may and fix such rates for non-residents as its discretion directs when it first utility services, decides to offer them its once rate is fixed “a rate status bewten the and its outside customers thereby is change arbitrarily established and the cannot thereafter discriminate, discriminate,
the rate so as to or further residing between them and being wholly city.” customers in the Aside from other, inconsistent with each the second reason inferring that beginning fixed rates at the of outside service arbitrary be discriminatory and spe- and the first reason cifically saying they may be, both reasons are at once contrary persuasive unrealistic and authority. to The first reason is hardly unrealistic because it is thinkable legislature express language would authorize citiеs “to fix unreasonably discriminatory rates” for their non-resi Moreover, dent legislature customers. made the about as broad as it could be made when it conferred on cities charge absolute discretion to such appear rates “as for the best interest” of the cities. The majority conclusion of the language sufficiently statute is not broad to authorize City charge higher Texarkana to rates to non-residents contrary to a Supreme decision of the Court of South Caro lina in the City case of Columbia, Childs v. 87 S.C. 70 S.E. 34 contrary L.R.A. NS to a decision of
Supreme Englewood Court of Colorado in the case of County Denver, Colo. Pac. 2d involving highly two latter decisions construction statutes Carolina statute au- similar to the Texas statute. The South “upon non-residents thorized cities to furnish water charges” might agreed terms, “when rates for the best interest it is said council right involving municipality to do.” In suit so higher than charge rates non-residents of Columbia making of residents, “Thus the charged said: the court were entirely terms, rates, are left and the contract authorities, interest municipal and the the discretion deciding considered municipality the sole factor *13 terms, made, so, on what and if the contract shall be whether * * authorized period *.” The Colorado statute and for what their outside supply consumers water to and towns to citiеs corporate upon charges and therefore such “and to collect and cities said towns and limitations as such conditions residents by impose In a rate suit between ordinance.” Englewood against from whose Denver water, court said system plaintiffs their obtained water public duty furnish to of Denver was “not Englewood any water kind rates or to furnish water at to dismissing af- the suit was trial all.” The court’s at firmed. necessary given is in that second reason unrealistic
The charge non- consequence cause cities and towns will be to given exorbitantly high they when are first rates residents unsatisfactory not arise to that an “rate status” will service so plague solution of thе them in the future. The “rate status” keeping part majority wholly of the record out of with ruling of It be a sufficient for the before us. basis fixing majority part of rates but on that the ordinance ruling part of not do at all as a basis for on that will charges. fixing City of Texar- ordinance sewer rates and The disposal plant operated lines and kana has owned its sewer many years. only in the record as to for evidence rates charged non-residents when sewer service was first offered them permitted testimony plaintiff Ross Perot who was system twenty-five to connect the Texarkana sewer with some ago years charged eighteen year per and who dollars was nоthing. paid the service at a time when residents of Texarkana Thus the rate status when established the service was first charge offered to non-residents was based on to non-residents eighteen great residents. The sewer made to times as as that charges here under attack is in the ordinance non-residents Clearly great charge only then the as the residents. twice as against injunction plaintiffs collection of not entitled to an ground they arbitrarily dis- on the sewer criminatorily depart a fixed “rate status.” from any support
I have not been able to find in recorded decisions theory. contrary rejected for the “rate status” it has On the been great many opinion. in a heretofore cited in this the decisions True, been based the contention has not heretofore theory that a rate status was created from which the could arbitrarily depart; theory presented but same has been ways, (1) to the courts at least two viz: that an ordinance given establishing a rate for non-residents was contract with breach; liberty the non-residents which the was not at (2) estopped raise rates to non-residents pipe had where laid and connected with the water or systems sewer in reliance a lower fixed rate ordinance. There is no essential distinction between these contentions and theory. the “rate status” mаjority fear up to construe the statute so as to primitive
hold ordinance here “would return to the us state development control when rates were dtermined *14 friendship political power pressure.” I that such doubt consequence reasonably expected, enough but plain wording to defeat the 'say statute lead unjust duty or unsound results. It is our to enforce the statute written, leaving legislature right change change effect a if a is needed. al Simmons et v. Arnim al, 70; et Texas Highway S.W. Texas Commis Bldg. El Council, sion v. Paso & Const. Trades 149 Texas 857, 863; 2d Refining S.W. Col-Tex. Co. v. Railroad Com Texas, mission of 150 Texas 747. judgment Court of Civil should be re-
versed and the of the trial court affirmed. Opinion February 6, delivered 1952.