334 S.W.2d 469 | Tex. App. | 1960
The appellants brought this action for an injunction prohibiting the City of Houston from enforcing an ordinance which it had enacted fixing rates for each of the utility companies. The city seasonably filed its plea to the jurisdiction and a motion to dismiss, and in the order we find substantially this recital: On the 12th day of August, 1959, came on to be heard the plea to the jurisdiction and motion to dismiss of the City of Houston, and the plaintiffs and the defendant each having appeared in open court, and all parties having announced ready, the Court ordered the hearing to proceed, and the Court having fully read and considered the pleadings, together with tire argument of counsel for each respective party, and being of the opinion that defendant’s plea to the jurisdiction and motion to dismiss should be in all things sustained, dismissed the plaintiffs’ cause of action and taxed the costs against them. Plaintiffs excepted and gave notice of appeal to the First Supreme Judicial District of Texas, and seasonably perfected their appeal to that Appellate Court, and the cause is here on transfer.
The decree is assailed on two points, they are substantially to the effect that the Court erred in dismissing this cause: (1) Because the Court had jurisdiction of plaintiffs’ suit for an injunction against the enforcement of a rate-fixing ordinance which they alleged to be unconstitutional in that the ordinance was enacted without notice and without hearing, and because it fixed a confiscatory rate; (2) The Court should reverse the judgment of the Trial Court and render judgment granting the temporary injunction as prayed for by appellants.
The following statement is taken substantially from appellants’ first three paragraphs in their statement of the nature and result of the case: The suit is brought by two utility companies for an injunction prohibiting the City of Houston from enforcing an ordinance which it had enacted fixing rates for the utility companies. The petition alleged the ordinance to be unconstitutional under both State and Federal Constitutions, Vernon’s Ann.St.Const. art. 1, § 13; U.S.Const. Amend. 14, for the reasons that it was enacted without notice of a hearing (thus depriving the plaintiffs of procedural Due Process of Law) and fixed confiscatory rates (thus depriving them of substantive Due Process of law). The City filed a Plea to the Jurisdiction and Motion to Dismiss, a Motion for Continuance, and a General Denial. The Trial Court sustained the City’s Plea to the Jurisdiction and granted the Motion to Dismiss. The only question presented in this appeal is: Does the District Court have jurisdiction of a suit brought by a utility company to enjoin enforcement of a City rate-fixing Ordinance which is alleged to be unconstitutional on the grounds that it was enacted without notice or hearing and fixed confiscatory rates? For the purposes of this case, all the allegations of plaintiffs’ petition must be taken as true.
Pertinent to this discussion we quote substantially from paragraphs 2, 3, 4 and 5, of Appellee’s statement of the-nature and result of the suit. Appellants-are engaged in selling water and sanitary sewer service to the public in the City of Houston. They did not have, nor have they ever had a franchise granted by the City of' Houston, nor have they ever requested the-granting thereof; that prior to July 17, 1959, appellants water and séwer rates were;
“Section 3 — That in the event that either company is not satisfied with the rates as established by this ordinance, the City Council of the City of Pious-ton, upon application by either or both of said companies, made in the manner and meeting the requirements of Ordinance No. 57-531 passed by the City Council of the City of Houston on May 1, 1957, will, as soon as practicable, talcing into consideration the other rate hearings which it is engaged in and which it has pending at that time, set a new rate hearing for either or both of said companies for the purpose of adjusting the rates herein set or, in the alternative, for the purpose of establishing new rates.”
As we understand this record, it is without dispute that the City of Houston passed the ordinance 59-996 on July 17, 1959. This ordinance by its terms after its approval on the 17th day of July, 1959, became operative after the first billing date awaiting its final passage and approval, so there is no doubt that ordinance 59-996 was in force and effect at the time plaintiffs filed their application for injunction on August 4, 1959. There is a total absence of any allegation in plaintiffs’ petition to the effect that they attempted to comply with Section 3 of the ordinance heretofore quoted.
In San Antonio Transit Company v. City of San Antonio, Tex.Civ.App., 323 S.W.2d 272, 276, n. w. h., we find this statement of the Rule:
“A transit company desiring to increase its rates must apply to the City Council for a new rate and must invoke the rate fixing powers of the City before it may resort to the courts.” Citing many cases.
So, we have here a situation where the appellants assert that they desire a rate hearing and a rate increase without ever having made any effort to secure such action from the City of Houston after it passed ordinance 59-996. Our Courts have consistently held that a utility must, as a prerequisite to a suit attacking rates invoke and exhaust the rate fixing powers of the City. See also Southwestern Associated Telephone Company v. City of Dalhart, Tex.Civ.App., 254 S.W.2d 819, n. r. e.; Lone Star Gas Company v. State, 137 Tex. 279, 153 S.W.2d 681; Railroad Commission of Texas v. Wencker, 140 Tex. 527, 168 S.W.2d 625. The Supreme Court of the United States applied the same doctrine in Myers v. Bethlehem Shipbuilding Corporation, 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638. See State ex rel. Scott v. Scearce, 303 S.W.2d 175, Court of Appeals, State of Missouri. The foregoing Rule is so well settled that further argument or further citations would serve no useful purpose.
Needless to say from the discussion aforesaid appellants’ Point 1 is over-ruled,, and appellants’ Point 2 necessarily passes, out of the case.
Since the record shows that the instrument designated Statement of Facts, filed by appellants was prepared after the-hearing and after the Court had announced its decision, and since it is without dispute that such instrument reflects-no part of any proceedings which transpired at or during the hearing on the ap—