Bexar County v. City of San Antonio

Citation352 S.W.2d 905
Decision Date15 November 1961
Docket NumberNo. 13830,13830
PartiesBEXAR COUNTY, Texas, Appellant, v. CITY OF SAN ANTONIO, Appellee.
CourtCourt of Appeals of Texas. Court of Civil Appeals of Texas

Charles J. Lieck, Jr., Dist. Atty., L. J. Gittinger, J. W. Sewell, Asst. Dist. Attys., San Antonio, for appellant.

Carlos C. Cadena, City Atty., Crawford Reeder, Asst. City Atty., San Antonio, for appellee.

MURRAY, Chief Justice.

This suit was instituted by the City of San Antonio, a municipal corporation, organized and existing under the laws of the State of Texas as a home rule city, against Bexar County, a political subdivision of the State of Texas, to recover the sum of $285.92, for sewer charges rendered against certain properties belonging to the County which are used exclusively for public public purposes and are connected with the City's sewerage system. The account covered a period from March 17, 1960 to July 31, 1960. The charges were based upon rates fixed by an ordinance of the City dated March 17, 1960, and numbered 28,351, as amended by another ordinance of the City dated July 14, 1960, and numbered 28,732. The County refused to pay this bill, contending, among other things, that the ordinances upon which such sewer charges were based were unreasonable, arbitrary, confiscatory, void and illegal, and that the charges were in fact a tax levied by the City upon the County. The case was submitted largely upon stipulated facts, and the hearing resulted in judgment for the City against the County for the amount sued for. The County has prosecuted this appeal.

Appellant's first contention is that the City levied these charges against county property used exclusively for public purposes, and that such sewer charges were in fact taxes or assessments not authorized to be levied by a municipal corporation against a county, and that such sewer charges were illegal and void.

Unquestionably, a city cannot levy taxes or assessments against property of a county used exclusively for public purposes in this State, unless authorized to do so by a legislative act, and, under the stipulated facts in this case, if the charges sued for were in fact taxes or assessments against the properties they were illegal and void. Harris County v. Boyd, 70 Tex. 237, 7 S.W. 713; Art. 11, Sec. 9, Texas Constitution, Vernon's Ann.St. Thus the real question here presented is whether or not, under all the facts in this case, the so-called sewer charge was in fact a tax and assessment against Bexar County. It has been decided that a city may make a reasonable charge for the benefits received by those who use its sewers, sufficient to operate and maintain such sewer system and to provide for replacements and future extensions thereof. City of Texarkana v. Wiggins, 151 Tex. 100, 246 S.W.2d 622; City of Fort Worth v. Westchester House, Tex.Civ.App., 274 S.W.2d 732; City of Wichita Falls v. Landers, Tex.Civ.App., 291 S.W. 696; Mulkey v. City of Kaufman, Tex.Civ.App., 286 S.W. 620; Cooley on Taxation, 6 36.

Appellant contends that inasmuch as the sewer charge fixed by the above ordinances would produce the sum of $1,600,000.00 per year, while the cost of maintaining and operating the sewerage system of the City is the sum of $490,000.00 per annum, that the charge was not a reasonable charge for the service rendered but a tax levied for the purpose of raising revenue, and therefore not applicable to Bexar County. It is stipulated, among other things, that the City has expert advice to the effect that it will be necessary to spend, during a period from 1960 to 1970, the sum of $16,301,650.00 for capital improvements in the sewerage collection and treatment system to meet the City's sewerage requirements for such period. A city is entitled to fix its sewerage rate so as to create not only the cost of operating and maintaining its present sewerage system, but also the cost of making replacements and extending and improving such system. Louisville & Jefferson County Metropolitan Sewer Dist. v. Barker, 307 Ky. 655, 212 S.W.2d 122, 4 A.L.R.2d 588; City of Texarkana v. Wiggins, supra; City of Fort Worth v. Westchester House, supra; Mulkey v. City Kaufman, supra.

We therefore conclude that the fact that the sewer charge would produce a greater sum than the cost of operating and maintaining the City's sewerage system, does not render such a charge a tax or assessment. Being only reasonable charge for the service rendered, it was a proper charge by the City against the County.

There is a presumption in favor of the validity of a municipal ordinance and the burden of showing that it is invalid is upon the party attacking it, and unless such showing is clearly made the action of the city council in enacting the ordinance is conclusive and cannot be reviewed by the Court. City of Abilene v. Woodlock, Tex.Civ.App., 282 S.W.2d 736, error refused, certiorari denied, 351 U.S. 925, 76 S.Ct. 782, 100 L.Ed. 1455.

The County contends that the above two ordinances were not enacted for the purpose of making a reasonable charge, but for the purpose of raising revenue. The County in making this contention does not take into consideration the value, at the present time, of the City's sewerage collecting and treating system, its depreciation each year, the cost of replacing parts that can no longer be used, and the cost of making extensions to meet the rapidly growing population of the City. The burden was upon the County to show these things if it expected to establish the fact that the City's sewer charges were for revenue purposes, and not a charge for service rendered but in fact a tax. These items must be taken into consideration in determining whether a sewer charge is excessive.

In Mulkey v. City of Kaufman, 286 S.W. 620, the Court said:

'The amount charged for the use of sewer is not inherently, in a legal sense, a tax, not even levied and collected as such, but a charge made without discrimination for a service rendered in value equal to the respective sums charged. Such charges are not collected by the tax collector or assessor, but collected through the water and sewer department, and the sum thus collected does not constitute any portion of the ad valorem tax levied and collected by appellee. Appellee city, existing under the general laws of Texas as municipal corporation, is authorized to operate a waterworks and sewerage system, and, under authority conferred by law, has the power to assess such charges for its water and the use of its sewer system as within the judgment of its governing body should be necessary to support and maintain and properly care for the city's property and to make such extension thereof as in their best judgment should be necessary. All of this is for the sole purpose of furnishing the inhabitants of the city with an adequate and wholesome supply of water and a sanitary sewerage system so necessary for the preservation of health.'

It is provided by ordinance of the City that all revenues from sewer service rendered outside or inside the City limits be placed in the 'City of San Antonio Sewer Reserve Fund,' a fund created by Ordinance No. 20747. Said ordinance also provided, in Section 18 thereof, as follows:

'Any revenues in excess of those required to establish and maintain the funds as above required may be used for...

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