*1 626 Estate, King’s re
anee the evidence. Tex. 244 660.
150 plaintiff re jury found body result of as a injuries
ceived accident, damage issue hut answered plain reflects
“NONE”. record hundred dollars incurred several
tiff result and lost time
medical bills jury’s think the the accident. We against great to Issue
answer preponderance of the evidence.
weight and Berry,
Lowery S. v. Bullock, v. Tex.Civ. Smith
W.2d 232; Carter
App, (n. h.), w. Co., Tex.Civ.App., (n. h.), Skelly w. Oil S.W.2d 227. cause reversed and
It follows that the trial, we In view of another
remanded. plaintiff’s other con- discussion of
omit Reversed remanded.
tentions. al., Appellants, SCHENKER et
Herbert M. al., Appellees. ANTONIO
CITY OF SAN et
No. Appeals
Court of Civil of Texas.
San Antonio.
May 15, 1963.
Rehearing 26, 1963. Denied June *2 187,249 electricity
behalf of consumers of 161,011 gas, and furnished consumers by gas electricity systems owned and operated the City of San Antonio and City under the Public Board of the Service 1111-1118, Ann. authority Vernon’s of Arts. City of San Civ.Stats. Defendants are the City, the Public Antonio, Home Rule members Service Board and the individual under thereof, trustees and the indenture agreements the indenture system purchased City from the by the Company in San Antonio Public Service subsequent and refinanced on three occasions. court,
The trial on de- after plea plea jurisdiction fendants’ to the and abatement, judgment pro- in entered a final viding as follows: parties, “All Plaintiffs and Defend- ants, ready having announced on pleas jurisdiction said and having abatement and the Court pleadings and sidered heard arguments evidence and of counsel for both Plaintiffs and Defendants and having taken case under advise- briefs, ment after submission of written opinion and finds that the re- sought by lief Plaintiffs as electric gas relate to consumers the reasonable- gas ness of electric and rates hereto- Schenker, Herbert M. Davis, Mau- Jack charged charged fore and to be ry Maverick, Jr., Gochman, Arthur M. Antonio, which legis- are appellants. San for municipal lative and matters over which jurisdiction; no Cadena, the courts have Carlos C. Reeder, Crawford B. Matthews, case City Atty., Nowlin, record shows that Macfar- Defendants, Barrett, under Tarver, Article Re- Jr., lane & Louis T. True- heart, McMillan, vised Civil Statutes Ann.Civ. Russell & Westbrook, [Vernon’s amended, 1113], Antonio, Chapman St. as are author- Cutler, art. Ill., & Chicago, to fix appellees. ized to these
Plaintiffs that the Defendants authority, exercised therefore BARROW, Justice. Paragraph of Plaintiffs’ First Amend- suit was instituted in Original Answer and District ed the corres- County by of Bexar plea Court ponding Herbert in the M. Answer De- Schenker, Marvin Beck and Savings C. fendants Harris Trust and John J. Mullen, allegedly as Mann, Trustees, class action under Bank F. O. are Rule Texas Rules Procedure, Civil sustained and this cause should be themselves, behalf on prejudice.” and for and on dismissed with erty process of law and without due accordingly dismissed The suit was discriminatory; prejudice. mandatory legis- perform its has refused to *3 rates; au- adjust enacted to fix duty The various ordinances lative and rates net setting charges yielded a purchase thorize in 1942 and that the rates and evidence, approximately time, in return on fair value of at that were introduced City rates years, the and such indentures and the last four as were the trust 18% excessive, substantially unreasonable, alleged of return were Charter. Plaintiffs extortionate, discriminatory elec- constitut- acquired gas and and City that: the the 25, 1942, plaintiffs’ for tricity systems taking ed a direct on October $33,950,000.00, sum was in violation without due of law the sum of Constitutions; payable provided by issuance of bonds United States and Texas revenues; agree- furthermore, are a solely an indenture rates out of excessive bond hold- in favor against with the consumers ment was entered into discrimination 1113, citizens; Board of that provided that the other classes of Art. ers which 1113, authority, R.C.S., complete Ann.Civ.St. art. Trustees should have Vernon’s provides Util- in power, setting rates, and control of the for set- management that ex- ity, setting (it ting rates is seen rates have included including defendants pense legiti- Board not authorize the items which do not constitute the indentures do ; City expenses, by purchase operating the rates) legal that since mate and to set any changed City in fixed, adjusted, transferring excessive sums to the has never rates; adopted in City furnishing Charter taxes and free services that lieu of upon hearing appointment City; plaintiffs pray of a “Su- that calls for the in- furnish pervisor Public Utilities” to court set reasonable and fair maxi- Council, su- but no mum net rate of return actual formation to the fair appointed properties in- system, been and the of the of the pervisor has value furnished; illegal that prohibit defendants from formation not improperly in the payments has been violated Charter City, or, calling for in the purchase furnishing without services to the of material alternative, bids; October, (when required to hold that that since purpose pur- public for the estab- passed authorizing public hear- and fair rates), lishing no reasonable rates. setting chase Council been held ing has ever opera- analyze
to enable
not set forth the reasons
We will
structure,
tion,
charges
rates
rate
that the court lacked
defendants
asserted
system;
plaintiffs have been re-
that
the rule is clear that where
jurisdiction, as
un-
pay excessive, exorbitant and
quired to
duty
it
dismissed
is our
the cause is
rates,
substantially
which have
reasonable
and see if there is
the record
suf
search
utility system to
of the
the value
increased
dismissal.
to sustain such a
ficient reason
$152,000,000.00;
is
worth
where it
now
Utilities,
Inc. v.
of Hous
Oaks
Glen
in-
surplus is the result
that this
ton,
stance to set aside an Antonio in common River with fix a new one.” people all of San Antonio and Hous This rule was followed public impairment general, “any Co., Utility Tex.Civ. Memorial Bend ton v. damage injury is an sus it was held: App., 331 S.W.2d wherein appellants tained in common with general public. Only lawfully constituted passed, “When the ordinance may guardians main interest promul rate fixed the rate became char tain actions for the redress of it could not gated law and injuries.” acter v. See also Estes provided except manner changed in a Granberry, Tex.Civ.App., 314 S.W.2d itself could not law. ref.; Utilities wr. West Tex. Co. promulgate until the exist new rates Smith, Tex.Civ.App., wr. be set aside. ing rates fixed law ref.; Baird, Powell v. Tex.Civ. only way the rates could App., 464; City Corpus 132 S.W.2d changed through would be Flato, Tex.Civ.App., Christi *5 before the Council. courts appellee until first could not intervene remedy before exhausted its the For these reasons the trial court did' Com San Antonio Transit Council. not dismissing plaintiffs’ err in cause of ac pany v. Tex.Civ. jurisdiction. tion was for want of not App., 323 no writ hist. S.W.2d merits on the and the court erred trial deny course, if should the Council Of prejudice.”' dismissing the suit “with to to en continue seek Tex., Appeals, Crofts v. Court Civil appellee force an that con 101; McDonald, S.W.2d Civil Prac Texas operates prop confiscate its tends to tice, therefore, We, reform 17.20. the to erty, the intervene courts would judgment to strike words these two from was in fact determine whether there the entered judgment in this cause. confiscation.” The order dismissal as reformed is plain- allegation there was no Since hereby affirmed. complained rates tiffs had of excessive them to the Council or have lowered, the courts could intervene MURRAY, (dissenting). Chief Justice properly suit was dismissed.
the
opinion
not concur in the
do
give
majority
my
my
and now
reasons for
plaintiffs
do
We
not believe
dissent.
justiciable
have a
interest
assert
complaining
cause of
excessive
action
plain
judg-
in its
trial court makes it
consumers,
charged all
and the suit
the district
ment that
it holds
court
properly
reason.
dismissed for that
jurisdiction
to hear a
does not
cause
Society
San Antonio Conservation
rate-payer
a consumer or
between
Antonio, Tex.Civ.App., 250
City of San
utility, though
prop-
his
municipally owned
ref., it was
writ
held
suit
erty
confiscated as a result of the
being
bridge
enjoin
of a
could not
construction
body’s
fixing
or some other
Council
brought by
Society, its
be
the Conservation
high as
to con-
gas and electric rates
members,
persons
property
or
who owned
property.
fiscate his
they
alleged
on the river and
would
readily
if
depreciation
majority
admit
financially
of their
affected
city fixes
council of a home rule
rates so
bridge was constructed
property if
property
utility
of a
The Court
low as to conficate
across the San Antonio River.
company, after
company,
that such
they
justiciable
had no
interest
au-
held
authority
jurisdiction to hear
reme-
prescribed administrative
exhausting
by the
enjoin
the issue involved
determine
dies,
can
into court
decision, ruling, or
of an ad-
confiscatory rate.
order
enforcing such
agency.
As
condition
fixing
ministrative
question
that rate
but
There is no
precedent
performed
to the
to contest
that can
legislative
function
laws,
deci-
validity
agency’s
an
order or
Texas,
our
under
Constitution
sion,
re-
aggrieved person is not
place, and
Legislature, in the first
quired,
requirement
statutory
absent
power has
City, where such
therefor,
apply
agency
City,
where the
first
delegated to
it
modify
rescind or
the action which
low as to confiscate
rates so
fixes
Where, however,
legis-
go into
has taken.
utility, it can
rates,
provided mandatory
lature has
meth-
court,
legislative
func-
not to fix
enjoin
tion,
od
review
an administrative
the enforcement
but to
say
agency,
(cid:127)confiscatory
majority
under the doctrine of exhaus-
rate. The
opinion, whether
tion of
remedies resort
deciding, in their
administrative
are not
open
must
method be-
equally
to a consumer
first be had to such
the courts are
jurisdic-
by the
fore the
rate-payer,
rate fixed
courts will entertain
or
where the
tion,
agency
high
confiscate
unless the administrative
Council is so
as to
act,
majority
in their
has
or
property. The
have held
commission
refused
illegally, arbitrarily,
have a
or be-
opinion
appellants herein do not
acted
yond
scope
authority.
matter of
justiciable
subject
interest
permit
maintain
them to
that will
suit
*6
a
to
review is
in suit
“Where
that in
It occurs to me
this suit.
action,
court
agency’s
set aside the
majority
decided
have
this decision
proper
on the
acquires jurisdiction
negative.
question
above
in the
mine.)
filing
(Emphasis
the suit.”
of
opin-
according to the
ground,
The first
that there was a
attempting to show
In
majority, why the district court
ion of the
procedure
to
prescribed administrative
is
jurisdiction
suit
not have
of this
does
relief
by utility consumers for
followed
appellants
administrative remedies
rates,
majority have
confiscatory
in-
courts will
must be exhausted before the
An-
San
of Sec. 135 of the
set forth
State, the
The
of this
tervene.
statutes
quotation
shows
City
tonio
Charter.
n charter
City
ordinances of
hearing
to a
right
while a
face that
its
.Antonio,
rate-payer
a consumer or
give to
extended to
Council is
before the
(cid:127)
company
City’s utility
no administra-
as to
utility company
a franchise holder
or
whatever, much less an ade-
remedy
tive
increased, no
utility
should be
rates
whether
people
having
who
quate
one. If
consumer or
is
to the
given
whatever
right
n property confiscated
are to be denied a
to whether
rate-payer
be heard as
to
courts,
pre-
there must be
in the
hearing
hearing can
A rate
be decreased.
should
here,
statute, or,
by
as
scribed,
State
either
by the franchise holder
only be initiated
City,
or ordinances of the
by the charter
by the council on
council or
petition to the
remedy,
adequate
or
administrative
.an
initiative,
notice to the fran-
its own
appellants
be denied the
will
otherwise
holder,
apparently great pains
chise
n
prop-
protection
and their
law
equal
privilege
give
such a
to
to
taken
were
proc-
them without due
erty
taken from
is
rate-payer.
utility
or
consumer
n
law.
ess of
rate-payer,
notice but not
entitled
by Section
37, 676,
completely ignored
Tex.Jur.2d,
p.
we find the he is
of the charter.
other sections
as the
-.following:
well
purchase
we consider
“Conformity
statutory
When
re-
Company
and Electric
operation
the Gas
quirements is
essential to invest court
liability
that,
was done without
on the
There are
holding
numerous cases
any taxpayer, and that all of the cost of while the
courts will hear a
com-
pany’s
transaction was to be borne
entire
contention that
low
rates are so
property
confiscated,
the consumers of the
services
is being
the con-
products,
payers of
it would seem that
sumer
will not be
contend
heard to
obligations
high
all
considera-
rates are
should have some
as to be
property.
only
tribunal where
his
given
tion
should
some
reason
right,
unjust
can be
as a matter of
heard
discrimination
a con-
is that
rates,
permits
required
when the
enacts
trus-
sumer is not
buy
the services
so,
property.
products
utility company,
that confiscate their
if
tees
do
of a
charter,
city
statutes nor the
he considers such
high
Neither the
rates too
he can
city
simply
any
prod-
ordinances accord
the con-
do
nor
without such services and
heard,
he
and now
ucts.
there
sumer
If
ever was a time when this
true,
He must
today
finds
closed
him.
it
large
is not true
in the
.courts
confiscated
silently
to be
suffer
San Antonio of
a half
well over
any tribunal, judi-
people.
before
million
say
person
without
can
To
large
was said
live in
metropolitan
cial or administrative. As
one of our
cities
Hickman, speaking
today
for the
Chief
and not
public
subscribe to
utilities
Justice
Utilities,
Supreme Court,
ignore
person
Inc.
reality.
Glen Oaks
How could a
Houston,
maintain his
home or
in the
business
today
electricity,
S.W.2d 783:
Antonio
without
gas, telephone,
sewerage
water and
City’s posi-
cannot sustain the
“We
simply
done,
nections
It
?
cannot be
it is
jurisdiction
that the court has no
tion
impossibility.
utter
doctrine
exist-
question
procedural
due
over
ing
large
utilities
without
on its
because
repudiated
our
in this State
valid,
regular and
and the court
face is
Supreme
Court
of Texarkana v.
authorized to
behind the ordi-
is not
Wiggins, 151 Tex.
In 13 lic company Words and find we service in 1942. The indenture the following process of they definition “due trustees now fix rates and collecting appel- law”: money from lants at rates “ that are unreasonable and process ‘Due mean law’ does not confiscatory, they appeal to and unless can legislative enactment, but condemna- legal remedy the courts no have by judicial Legisla- tion decree. The against alleged confiscation of their usurp ture cannot and the property. petition appellants’ Even if were power every of the courts to determine subject demurrer, general the trial court question life, liberty, or concerning justified dismissing would property.” cause. Rule T.R.C.P. process Other law,” definitions of “due majority have held that the cause work, found the above are as follows: properly “Since dismissed there was no “ requires ‘Due of law’ no- plaintiffs allegation complained had parties op- tice to all interested and an excessive rates Council or * * * portunity for them to be heard. to have them lowered.” If “ pleadings respect, were defective in this process’ implies ‘Due a notice and might defect related to matter that hearing but the must not of *8 pleadings. been cured amended No such courts, necessity may be in the and it given appellants. opportunity was appropriate be before the administra- * * * agency. tive allegations peti- According to the tion, property appellants’ being “ law,’ process guaranteed ‘Due rates fixed fiscated exorbitant not by Constitution, includes notice and Council, by the indenture trustees. as matter of in matters procedure provided No administrative rights wherein one’s in- whereby they may be heard as to their com- * * * volved. plaint. Under circumstances “ them, process proce open ‘Due of law as to should doors of the court opportunity process means notice dure can be accorded due orderly proceeding defend in an before law. Art. Vernon’s Ann.Tex. (cid:127) competent impartial Const., provides tribunal as follows: ** having jurisdiction of the case. “ * * * open, All courts shall be “ every person injury ‘Due is a law an law’ which done condemns, person lands, goods, pro- him, hears before it .634
reputation, remedy by due shall have law.”
course of judgment of reverse the would court, only the suit
trial because because prejudice, but also
dismissed entitled to appellants were
I feel that allegations of upon the numerous
heard event, petition. any they should to amend. given opportunity al., Appellants, Mittie ANDERSON et
Mrs. INGSMITH, Appellee.
John Foster CLING
No. 16439. Appeals of of Civil Texas.
Court
Fort Worth.
June July 19, 1963.
Rehearing Denied