American Rio Grande Land & Irrigation Co. v. Karle

• Citation: 237 S.W. 358
• Decision Date: 11 January 1922
• Docket Number: (No. 6534.),(No. 6521.)
• Parties: AMERICAN RIO GRANDE LAND & IRRIGATION CO. v. KARLE et al.
• Court: Court of Appeals of Texas

Page 358

237 S.W. 358

AMERICAN RIO GRANDE LAND & IRRIGATION CO. v. KARLE et al.

(No. 6521.)

(No. 6534.)

Court of Civil Appeals of Texas. Austin.

January 11, 1922.

Rehearing Denied February 15, 1922.

Appeal from District Court, Travis County; Geo. Calhoun, Judge.

Suit by F. G. Karle and others against the American Rio Grande Land & Irrigation Company and the Board of Water Engineers to set aside certain water rates as fixed by the Board and to enjoin the company from enforcing the rates. From an order overruling a motion to dissolve the temporary injunction granted to plaintiffs against the company alone and another order overruling the company's plea of privilege to be sued in the county of its residence, the company appeals. Affirmed.

Geo. H. Williams, of St. Louis, Mo., James B. Wells, of Brownsville, John P. Gause, of Mercedes, and D. W. Glasscock, of McAllen, for appellant.

W. L. Dawson, of Mission, Bennett & Anderson, of Mercedes, and Ball & Seeligson and C. W. Trueheart, all of San Antonio, for appellees.

BRADY, J.

Appellees, F. G. Karle et al., who will be designated herein as plaintiffs, brought this suit against the Board of Water Engineers of the state of Texas and the American Rio Grande Land & Irrigation Company to set aside certain water rates, as fixed by the Board, and to enjoin the company from enforcing the same. The action is a class suit; it being brought by Karle and Christner, plaintiffs, for themselves, and in behalf of some 2,000 irrigators and water takers from the company in Hidalgo county, Tex. Prior to the institution of this suit, and on January 3, 1921, the company filed an application with the Board, alleging that in December, 1920, it had published a new schedule of water rates, effective January 1, 1921, which involved an increase in prior rates fixed by what is known as the "water contracts," and invoking the power of the Board to fix reasonable rates. The application asked that the published rates be approved, or, if deemed unreasonable, requesting the Board to fix reasonable rates, effective January 1, 1921. Three days later the plaintiffs herein, through attorneys representing the landowners under such irrigation system, joined in the request of the company in its application to the Board, reserving the right of appeal should they be dissatisfied with the rates fixed. Two days later plaintiffs filed suit in the district court of Hidalgo county, and there obtained an injunction against the company, requiring it to furnish them with water under the terms of their water contracts until some legal change thereof should be made. The decision of the Board was rendered July 30, 1921, and its order fixing the rates made them apply "for the calendar year 1921, and for each respective calendar year thereafter, and shall remain in full force and effect until such time as the same shall be altered, changed, or modified in accordance with law." The Board rates represent an increase over the "contract rates," and are different from the published rates of the company; the flat rate being higher and the water rate lower than in the published rates. Shortly after the decision of the Board, the judge of the district court of Hidalgo county dissolved the injunction of that court and dismissed the suit.

There are two appeals from preliminary orders in this case now pending in this court; the first is an appeal from an order of the district court of Travis county overruling the motion to dissolve the temporary injunction granted plaintiffs against the company alone, and the other being an appeal from an order overruling the plea of privilege of the company to be sued in Hidalgo county. These appeals have been submitted together, and the causes are here consolidated and will be considered and decided together under cause No. 6521.

The pleadings are very voluminous, and it will be sufficient to state only so much as will fairly indicate the issues involved here. Plaintiffs alleged that they had water contracts with the company, stipulating that the rates therein fixed should not be altered, except after arbitration; that their lands were valuable only as irrigated lands, and their water supply was limited to that furnished by the company; that the published rates and rates fixed by the Board were unreasonable and unjust to them, and actually confiscatory. The due process clauses of the federal and state Constitutions were also invoked, and the rates were specifically attacked in numerous particulars, including the claim that the rates were made retroactive by the Board's order, and were therefore void. It was alleged that the existing contracts authorized the company to cut off plaintiffs' water supply upon the failure to pay irrigation charges; that their crops were in need of water, and unless the Board's rates were paid by them the company would shut off their water; and that actions at law for damages would necessarily involve a multiplicity of suits, which would not afford adequate protection to plaintiffs; that the company would also seek to enforce its statutory and contract liens against the numerous plaintiffs, who each had a common defense, based on the unreasonableness of the rates; that, if they should pay the Board's rates, restitution would be doubtful and difficult; and that they would suffer irreparable injury unless the Board's rates should be restrained pending final decision, whereas the company had adequate remedies at hand in event the rates should be finally upheld.

The defenses of the company, which alone has appealed in these proceedings, will be indicated in the discussion of the questions in the opinion.

The injunction, as originally issued, enjoined the company from collecting or attempting to collect or demand of plaintiffs charges in excess of existing contract rates, and from cutting off water to those plaintiffs paying or tendering payment of the existing contract rates. However, the court, of its own motion, on the hearing of the motion to dissolve, modified the temporary injunction so as to enjoin and restrain the company only from cutting off the water supply contracted for by the plaintiffs because of their failure or refusal to pay the rates fixed and promulgated by the Board, and in all other respects the injunction was dissolved. The injunction bond fixed by the court was in the sum of $5,000.

There is accompanying the record a very lengthy statement of facts. Each of the parties introduced their respective sworn pleadings, and numerous affidavits were introduced, as well as considerable oral testimony. We cannot undertake to set out all the facts nor the evidence in detail, but we have concluded that there was sufficient evidence to support the implied conclusions of the trial court, and to justify the court, in refusing to dissolve the temporary injunction.

The statutory provisions under which the rates were fixed by the Board and under which this action was brought in the district court of Travis county are contained in section 1 of chapter 55, Fourth-Called Session of the Thirty-Fifth Legislature, and are found in articles 5002hh, 5002kk, and 5002kkk, Complete Texas Statutes of 1920.

Opinion.

The volume of business pending in this court will not permit an extended discussion of the many interesting questions presented in the briefs. We shall content ourselves, in the main, with a statement of our conclusions upon what are regarded as the controlling questions, and in such order as is deemed most convenient.

It is contended that the injunction in this case was improvidently granted and continued in force as modified upon an insufficient bond under the law. Article 4650, Revised Civil Statutes, is relied upon, and it is claimed that the bond should have been at least double the sum of $149,000, because that is the amount of the increase under the Board rates over the contract rates. This statute has no application, because the rates enjoined do not constitute a debt within its meaning. We think, as applied to this action, the word "debt" in the statute is used in the narrower meaning of the term, that of a liquidated demand, especially in view of the associated words "the execution of a moneyed judgment." McNeal v. Waco, 89 Tex. 83, 33 S. W. 322; Twin City Co. v. Birchfield, 228 S. W. 616; Coss v. Coss, 207 S. W. 127. Under article 4654, Revised Statutes, the amount of the bond was within the sound discretion of the court, which has not been shown to have been abused.

It is claimed by the company that the district court of Travis county was without jurisdiction to entertain a suit for injunction against it, because this is not a suit under the general equity powers or general original jurisdiction of such court, but is a special statutory action, created and controlled by articles 5002kk and 5002kkk, Complete Texas Statutes. It is specially urged that the jurisdiction and powers of such court are limited to and controlled by these statutes, and do not extend to the granting of an injunciton against the company.

Under our Constitution, district courts are courts of general jurisdiction, and have the express constitutional authority to issue writs of injunction when necessary to enforce their jurisdiction. It is claimed, however, that this power does not exist here, because the Board has the power and authority to fix reasonable rates for the furnishing of water which are conclusive until set aside in a proper action, and that this may be done only by petition filed in a district of Travis county "against said Board as defendant," and that such petition shall set forth the particular cause or causes of objection to the rate. Article 5002kk, Complete Texas Statutes.

Stress is also laid upon article 5002kkk, which provides:

"In all trials under the foregoing article, the burden of proof shall rest upon the plaintiff, who must show by clear and satisfactory evidence that the rates * * * are unreasonable and unjust to it or them."

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