City of Denton v. Denton Home Ice Co.

Decision Date28 June 1929
Docket Number(No. 1252-5368.)
PartiesCITY OF DENTON et al. v. DENTON HOME ICE CO.
CourtTexas Supreme Court

Petition by the Denton Home Ice Company against the City of Denton and others. Judgment for plaintiff, and defendants appeal. On certified questions from the Court of Civil Appeals. Questions answered.

T. B. Davis, City Atty., of Denton, and Cofer & Cofer, of Austin, for appellants.

Brent C. Jackson and George M. Hopkins, both of Denton, for appellee.

Royston & Rayzor, of Houston, amicus curiæ.

Certified Question.

CRITZ, J.

The certificate very clearly and fully states the facts and issues here presented. It is as follows:

"Upon the verified petition of appellee, Denton Home Ice Company, the Honorable B. W. Boyd, Judge of a district court of Denton County, in vacation, on the 5th day of January, 1929, granted a temporary writ of injunction against the City of Denton, its mayor and councilmen, restraining them from building, maintaining or operating an ice plant in the City of Denton. The defendants filed their original answer presenting a plea in abatement, a general demurrer, special exceptions, a general denial and a special verified answer. Upon this answer defendants filed and presented their motion to dissolve the temporary writ of injunction. The judge first heard the plea in abatement, the general demurrer and exceptions, and overruled them. Upon a further hearing upon the pleadings and evidence submitted, the motion to dissolve was overruled and the injunction continued, and from the order overruling the motion to dissolve, this appeal has been duly prosecuted.

"In our further statement, we omit all reference to pleadings, evidence, and rulings of the court which relate to questions other than that certified, to wit: Whether it is lawful for the City of Denton to build, equip, own and operate a municipal ice plant?

"As pertinent to this question, the record discloses that the City of Denton is a city of over 5,000 inhabitants, operating under a charter and under the Home Rule Amendment and statutes applying to such cities. The appellants, other than the city, are the mayor, city secretary, and five commissioners of the City of Denton. The appellee is a private corporation engaged in the business of manufacturing and selling ice in the City of Denton, also is a large property taxpayer of said city and a large user of electric power and water furnished by the city. The city, acting by and through its mayor and other officials named, is threatening to build, establish, maintain, and operate a large plant for the manufacture and sale of ice and for the storage of the same in the City of Denton, and in furtherance of this plan is now threatening and have advertised for bids, to be opened at a designated date, for the construction of a large brick building intended to house ice and to be used as a site for said ice manufacturing and vending business.

"It was further alleged and shown that there was already three ice plants in said city producing and supplying sufficient ice to meet every necessity of the inhabitants. It is contended in behalf of appellants that the manufacture, sale, and distribution of ice is a business affected with a public interest in a like category with gas as fuel and electric current and the supply of water, and that municipally owned ice plants are justified and authorized by law. In support of this contention, appellants cite article 1175, Rev. Statutes of 1925, which enumerates powers of cities operating under the Home Rule Amendment, and article 1302, §§ 15 and 88, which define the purposes for which private corporations may be created. Appellants further cite McQuillan on Municipal Corporations, vol. 5, § 1158, page 77, and the following cases as upholding the right of municipalities to own and operate ice plants, to wit: Oklahoma Light & Power Co. v. Corporation Commission, 96 Okl. 19, 220 P. 54; Holton v. Camilla, 134 Ga. 560, 68 S. E. 472, 31 L. R. A. (N. S.) 116, 20 Ann. Cas. 199; Saunders v. Mayor and Council of Arlington, 147 Ga. 581, 94 S. E. 1022, Ann. Cas. 1918D, 907; City of Tombstone v. Macia, 30 Ariz. 218, 245 P. 677, 46 A. L. R. 828; Laughlin v. Portland, 111 Me. 486, 90 A. 318, 51 L. R. A. (N. S.) 1143, Ann. Cas. 1916C, 734; Jones v. Portland, 113 Me. 123, 93 A. 41, affirmed by the Supreme Court of the United States in Jones v. Portland, 245 U. S. 217, 38 S. Ct. 112, 62 L. Ed. 252, L. R. A. 1918C, 765, Ann. Cas. 1918E, 660; Central Lumber Co. v. Waseca, 152 Minn. 201, 188 N. W. 275; Mutual Oil Co. v. Zehrung (D. C.) 11 F.(2d) 887; Consumers' Coal Co. v. City of Lincoln, 109 Neb. 51, 189 N. W. 643.

"A further contention of appellants is to the effect that if the statutes and decisions cited above do not establish the right of a municipality to own and operate an ice plant, it is nevertheless within the legislative power to determine that such business is so affected with a public interest as to make the same a public utility and that hence the City of Denton, as a Home Rule City, had the legislative power to declare the ice business contemplated by it affected with public interest so as to make the same a public utility, citing in support of this contention the charter provisions of the City of Denton, to the effect that the enumeration of powers in the charter shall not be construed to preclude the City of Denton, by implication or otherwise, from exercising all the powers incident to the enjoyment of local self-government, nor to do any and all things not inhibited by the Constitution and laws of the State of Texas; that all powers heretofore granted or that may hereafter be granted by general or special laws are hereby preserved to the City of Denton; that exclusive franchises or privileges are prohibited; that the city shall forever have the right `to purchase, own, control, and operate any and all public utilities'; and to purchase and regulate all franchises granted by said city, further citing the cases of Mutual Oil Co. v. Zehrung (D. C.) 11 F.(2d) 890; Jones v. Portland, 245 U. S. 217, 38 S. Ct. 112, 62 L. Ed. 252, L. R. A. 1918C, 765, Ann. Cas. 1918E, 660; Laughlin v. Portland, 111 Me. 486, 90 A. 318, 51 L. R. A. (N. S.) 1143, Ann. Cas. 1916C, 734.

"In opposition to the contentions of appellants as above indicated, appellee insists upon the general proposition that municipal corporations are creatures of the statutes and can exercise only those powers expressly designated to it, or necessarily implied as an incident to those powers expressly granted, and that no statute or constitutional provision of Texas has classified the ice business as a public utility, or as so affected with a public use as to authorize a municipality to do the things threatened in the present suit, citing in aid of this contention Foster v. City of Waco, 113 Tex. 352, 255 S. W. 1104; Gulf Bitulithic Co. v. Nueces County (Tex. Civ. App.) 297 S. W. 752; State v. Country Club (Tex. Civ. App.) 173 S. W. 570; State ex rel. Kansas City v. Orear, 277 Mo. 303, 210 S. W. 392; Union Ice Co. v. Ruston, 135 La. 898, 66 So. 262, L. R. A. 1915B, 859, Ann. Cas. 1916C, 1274; Williams v. Standard Oil Co., by the Supreme Court, reported in 278 U. S. 235, 49 S. Ct. 115, 73 L. Ed. ___. Appellee also cites section 3, art. 8 of the Constitution, which provides that taxes shall be levied and collected by general laws and for `public purposes only'; and also calls attention to article 1108, Rev. Statutes of 1925, which enumerates public utilities and which fails to include the manufacture and sale of ice in the list; and article 1119 which provides for the regulating of public utilities and which does not include the ice...

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