Ball v. Merriman

• Decision Date: 20 October 1922
• Docket Number: (No. 863.)
• Citation: 245 S.W. 1012
• Parties: BALL et al. v. MERRIMAN et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

245 S.W. 1012

BALL et al. v. MERRIMAN et al.^*

(No. 863.)

Court of Civil Appeals of Texas. Beaumont.

October 20, 1922.

On Rehearing December 20, 1922.

Error from District Court, Jefferson County; E. A. McDowell, Judge.

Information in the nature of a quo warranto by Marvin Scurlock, County Attorney of Jefferson County, on the relation of W. R. Merriman and others, against M. T. Ball and others, constituting the Board of Supervisors and the Tax Collector of Fresh Water Supply District No. 1 of Jefferson County, charging usurpation, and praying for a judgment of ouster. Judgment for relators, and defendants bring error. Reversed and rendered.

Sonfield, Nall & King, of Beaumont, and J. W. Williams, of Port Arthur, for plaintiffs in error.

A. D. Lipscomb, and W. R. Blain, both of Beaumont, and Holland & Holland, of Orange, for defendants in error.

WALKER, J.

This was an information in the nature of a quo warranto, filed in one of the district courts of Jefferson county by Marvin Scurlock, county attorney of Jefferson county, upon the relation of W. R. Merriman, J. M. Hebert, Oscar Whittington, Hugh Kitchen, G. R. Thomas, the Texas Company, and Walter Beaumont, against M. T. Ball, A. S. Bailey, G. E. Bliss, S. E. Gifford, C. C. Hawkins, and R. S. Stewart, constituting the board of supervisors and the tax collector of fresh water supply district No. 1 of Jefferson county, charging usurpation, and praying for a judgment of ouster. On a trial to the court without a jury, judgment was entered in favor of relators against respondents that fresh water supply district No. 1 was invalid, and that respondents were guilty of usurpation, and that they pay a fine of one cent to the state of Texas for such usurpation. This case is before us on writ of error sued out by respondents. In this opinion, for convenience, we designate the plaintiffs in error as respondents and the defendants in error as relators, that being their relations in the lower court.

Fresh water supply district No. 1 of Jefferson county, herein referred to as the district, was organized under the provisions of chapter 48, p. 107, Acts of the First and Second Called Sessions of the Thirty-Sixth Legislature, arts. 5107 — 180 to 5107 — 266, inclusive, Complete Texas Statutes 1920, referred to herein as the act. In the organization of the District, it is conceded — at least it is not questioned — that all the provisions of the act were complied with. In their amended information relators attacked the act on the ground that it was unconstitutional, and was insufficient to support the organization of the district, and, if in error in that contention, that the district as organized was illegal and void for the following reasons (quoting from respondents' brief):

"(1) The organization of the district was planned in fraud of the rights of relators and many others owning land within the district, the purpose being to supply only the residents of the city of Port Arthur and its suburbs with fresh water, the lands outside of the city of Port Arthur and its suburbs being included within the district for the sole purpose of taxation, it not being intended to afford any of the benefits of the water supply to such lands.

"(2) That the plan or scheme of improvement adopted is incomplete, partial, and unfair, in that it would be impossible and impractical thereby to distribute the fresh water throughout the district in such manner as to benefit directly or indirectly the lands within the district outside the city of Port Arthur and its suburbs.

"(3) That the lands of relators other than the Texas Company and the lands of many others, not parties to the suit, are so situated as to render it impossible that they will receive any benefit from the proposed improvement.

"(4) That the relator the Texas Company has at its own expense provided itself with a supply of fresh water adequate for all its needs, and much of its property included within the district is so situated as to be inaccessible to the contemplated improvement, so that its property would not be benefited by such improvement.

"(5) That the boundaries of the district were fixed by petitioners for the district in such manner that relators and the other owners of property in the proposed district outside and beyond the limits of the city of Port Arthur would be unable to defeat the organization of the district, or the authority to issue bonds in elections held for that purpose, because the city of Port Arthur contains within its boundaries 80 per cent. of the qualified voters of the entire district.

"(6) The bonds authorized by the election are an amount only sufficient to cover the estimated cost of supplying fresh water to Port Arthur and its municipally owned waterworks, and added revenue can be raised only through an election; and, since 80 per cent. of the qualified voters reside in Port Arthur, this majority would naturally be opposed to any extension of improvements which would benefit relators.

"(7) That the territory included in the district is nine-tenths rural and pasture land and unsuitable and inappropriate for any community design or plan for a fresh water supply for domestic and commercial uses, and no system of improvement could be adopted that would be just and reasonable or appropriate.

"(8) The act provides for an ad valorem tax upon all lands in the district, and the boundaries of the district having been arbitrarily fixed so as to include therein lands which it was not contemplated would receive any benefit, the system of ad valorem taxes cannot be applied with uniformity and equality within the district.

"(9) That the Constitution authorized taxation only for conservation and reclamation of the natural resources within a given division or territory for the benefit of the division or territory in which the resources conserved or the wealth reclaimed are situated, and the scheme or plan adopted does not contemplate conservation of natural resources within the district, but a diversion of such resources from without the district for distribution within the district."

Respondents thus summarize their answer:

"Respondents demurred generally to the amended original information, filed numerous special exceptions and answered fully. They denied that they were exercising the rights and franchises without lawful warrant or authority, but that they were acting as the duly elected officers of fresh water supply district No. 1 of Jefferson county, a governmental agency, body politic and corporate, duly formed and organized in the manner as provided by the act of the Thirty-Sixth Legislature, enacted at its second called session, being chapter 48, approved the 28th day of July, 1919, said act being passed in virtue of section 59 of article 16 of the Constitution of the state of Texas, adopted as an amendment on the 21st day of August, 1917. Respondents specifically set out the proceedings had and taken in the formation of the district, and averred the regularity of all such proceedings and full compliance with all conditions precedent to the organization, as well as all steps taken after the organization of the district."

The trial court sustained all of respondents' special exceptions to relators' amended information, in as far as they called in question the constitutionality of the act, but overruled all others, and, in support of his judgment holding the district void and illegal, filed conclusions of law and fact supporting the allegations of relators' information, as above summarized.

We believe the following facts are not controverted by the record:

(1) Fresh water supply district No. 1 of Jefferson county includes the school districts of Port Arthur and Port Neches, both districts being wholly within Jefferson county, and its boundaries are coincident with the boundaries of the two school districts.

(2) The district as organized contains the city of Port Arthur, with a population of about 30,000, and the town of Port Neches, with a population of about 1,500. The district contains about 45,300 acres of land. Port Arthur and its suburbs, together with Port Neches, contain about 5,257 acres of land. The balance of the land in the district is rural and is used for farming and stock grazing. The tax values of the district were shown to be as follows: Real estate and personal property in Port Arthur, $8,521,756; real estate in the two school districts outside of Port Arthur, $29,000,000; property of the relator Hebert, $83,000; property of the relator Texas Company, $14,789,000; property of other relators in district, $23,000.

(3) The district is bounded on three sides by navigable waters which constitute one of the greatest ports in the United States. The land of the district is very level, no mountains, hills, or deep gullies, and slopes gradually from Port Neches towards Port Arthur, a distance of 9 or 10 miles, having a fall of about 15 or 16 feet in this distance.

(4) This district has developed very rapidly within the last 20 years. The city of Port Arthur has grown from a very small village to its present size. Port Neches has grown up. Rural land values in the district have increased from $10 or $15 per acre to as high as $1,000. This development of the district has been due to the commercial and industrial enterprises now located within the limits of the district, and the prosperity and growth of the district depend on the prosperity of these enterprises and the location of new enterprises.

(5) All parts of the district now have an abundant supply of fresh water from wells and cisterns, except the city of Port Arthur and its suburbs. The Texas Company has its own supply of fresh water, secured at a cost of approximately $250,000. Port Arthur for years has secured its supply of fresh water from deep wells located at Port Neches, but during the last few years these wells have become salt, and the water is now very bad and often not fit for use. Much of the water used is...