SOUTHWESTERN GAS & ELEC. CO. v. City of Texarkana, Tex.
| Decision Date | 14 July 1939 |
| Docket Number | No. 9067.,9067. |
| Citation | 104 F.2d 847 |
| Parties | SOUTHWESTERN GAS & ELECTRIC CO. v. CITY OF TEXARKANA, TEX., et al. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Richard L. Arnold, of Texarkana, Ark., and Jno. J. King, of Texarkana, Tex., for appellant.
Ed B. Levee, Jr., of Texarkana, Tex., for appellees.
Before FOSTER, HUTCHESON, and HOLMES, Circuit Judges.
This appeal is from a decree dissolving a temporary injunction and dismissing a bill brought against the City of Texarkana, Texas, the executive officers, and the members of the Board of Aldermen. Appellant alleged an illegal intent and design to negotiate a contract with the Federal Emergency Administration of Public Works to build a municipal power and light plant with funds to be furnished by the Federal Government; that the intention of the City was to duplicate the existing plant and facilities owned by appellant, and to compete with it in the business of furnishing electricity in said city. Appellant does not question the power of the Federal Government to make the contract and loan, but relies upon the proposition that the City is acting illegally in that it is attempting to bargain away a portion of its governmental authority in order to procure the means to erect said plant; and that the proposed completion thereof would be wrongful as to appellant, having been brought about by illegal means.
Owning and operating a distribution system in the City of Texarkana, Texas, appellant holds a non-exclusive franchise to carry on its business in said city, which franchise has approximately sixteen years to run. The City first applied for a loan and grant from the Public Works Administration on August 12, 1935, the application being authorized by a resolution of the City Council. On October 16, 1935, appellant brought this suit praying a permanent injunction against the prosecution of the application and the building of the proposed system. Thereafter, a hearing was had on a motion for a temporary injunction. On this proceeding, a preliminary injunction was granted whereby appellees were left free to pursue their application to the point of actually making the contract.
The offer and acceptance having been completed, subject to the preliminary injunction, the matter came on for final hearing. Appellant contended that the terms and conditions to be incorporated in the proposed contract constituted a delegation of the legislative functions of the City to the Public Works Administration, in that they provided that the City should obligate itself to adopt proper legal proceedings fixing rates to be charged, leaving the Public Works Administration, or the purchaser of the bonds, as the final arbiter of what proceedings and rates were proper; that final determination as to plans, specifications, and the purposes for which the money was to be spent was left to the Administrator; or his agents; that the Administrator was given the option to purchase all, any, or none of the bonds and to withhold payment of...
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