Board of Water Engineers of State v. City of San Antonio
| Decision Date | 01 December 1954 |
| Docket Number | No. 10258,10258 |
| Parties | BOARD OF WATER ENGLINEERS OF THE STATE of Texas, Appellant, v. CITY OF SAN ANTONIO, Appellee. |
| Court | Texas Court of Appeals |
John Ben Shepperd, Atty. Gen., Burnell Waldrep, John Reeves, Asst. Attys. Gen., Joe Carter, Legal Examiner, Board of Water Engineers, Austin, of counsel, for appellant.
Boyle, Wheeler, Gresham, Davis & Gregory, San Antonio, for appellee.
The City of San Antonio brought this suit against the Board of Water Engineers of the State of Texas and its individual members in their official capacities. It sought a declaratory judgment declaring section 1-a of art. 1434a unconstitutional, declaring and establishing its rights relative to a presentation tendered to the Board for acceptance and filing on March 2, 1953, and establishing its priority of right to withdraw water from the Guadalupe River Watershed.
The Board has appealed from an adverse judgment.
The City, through and by its Waterworks Board of Trustees, was and is desirous of making surveys and investigations to determine the feasibility of taking water from the Guadalupe River Watershed to supplement the water supply of said City. However before incurring the expense of making such surveys and investigations the City desired to establish priority of right to take such water in the event a permit therefor might thereafter be granted. Art. 7496, Vernon's Ann.Civ.St.
There is contemplated a flood control project on the Guadalupe River in Comal County at a site known as 'the Canyon Dam Site.' The City desires to investigate the feasibility of purchasing storage space in the reservoir to be created by the construction of this proposed dam at incremental cost of construction. This plan is to increase the elevation of the top of the proposed dam at a cost to the City and thereby provide storage space for additional water to be made available to the City.
On March 2, 1953, the City tendered to the Board for approval and filing a presentation under the provisions of art. 7496, supra. This presentation was refused by an order of the Board which is:
'Whereas, the Water Works Board of Trustees of the City of San Antonio, Texas, presented to the Board of Water Engineers, in Austin, Texas, on the 2nd day of March, 1953, a presentation in accordance with Article 7496, of the Revised Civil Statutes of Texas, accompanied by the necessary fees, and requested that such presentation be approved by the Board and filed; and
'Whereas, although all formalities have been complied with fully the project outlined in said presentation contemplates the withdrawal of water from the Guadalupe River Watershed for use in San Antonio, Texas; and
'Whereas, Article 1434-a of the Revised Civil Statutes of Texas, being a part of Chapter 407, p. 666, Acts of 1941, 47th Legislature, specifically forbids withdrawal of water from the Guadalupe River Watershed;
'Now Therefore, be it resolved that the presentation of the Water Works Board of Trustees of San Antonio, Texas, be, and the same is hereby, not accepted by the Board of Water Engineers for filing.
'Given under the hand and seal of the Board of Water Engineers for the State of Texas, this the 2nd day of April, 1953.'
A copy of this order was enclosed to attornetys for the City in a letter from the Board which is:
'We return herewith the presentation of the Water Works Board of Trustees of San Antonio, Texas, for the reason set forth in the Board's order, a copy of which is enclosed.
'This presentation would have been accepted for filing but for the specific prohibition against withdrawal of water from the Guadalupe River Watershed contained in Article 1435-a.' 1
Section 1-a of art. 1434a is pertinent here and we quote that section:
'It shall be unlawful for any person, firm, association, or corporation to withdraw any water from the Guadalupe River or Comal River or any tributaries of such rivers or springs emptying into such rivers, or either of them, for the purpose of transporting such water to any point or points located outside of the natural watersheds of such rivers.
The City attacked the constitutionality of section 1-a supra on various grounds.
Upon a nonjury trial the court found that the City has a justiciable interest in this cause authorizing it to maintain the suit; that the court had jurisdiction of the cause of action; that the filing of the presentation with the Board would vest the City with valuable and substantial rights which would be denied it by the refusal of the Board to accept and file said presentation; that the only reason given by the Board for its refusal to accept and file said presentation was art. 1434a, and that section 1-a of said art. 1434a is invalid, unconstitutional and void. The Board's special exceptions were overruled and all other and further relief prayed for by the parties was denied.
Upon entry of the above judgment the City tendered the presentation to the Board for filing. The same was accepted and filed by the Board conditioned only on the trial court's judgment not being set aside on appeal. The City then filed its motion under Rule 406, Texas Rules of Civil Procedure, and attached certified copies of the Board's orders. This action apparently was to meet the Roard's contention that the cause was moot because more than six months has passed since the presentation was tendered to the Board on March 2, 1953.
In its appeal from the trial court's judgment the Board here presents two points. These are to the effect that: (1) the trial court erred in refusing to dismiss the cause of action because no justiciable controversy is raised, and (2) the trial court erred in holding section 1-a of art. 1434a unconstitutional.
The Uniform Declaratory Judgments Act, art. 2524-1, Vernon's Ann.Civ.St. is rather comprehensive in its several provisions. By section 12 its purpose is declared to be to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations, and provides that the Act is to be liberally construed and administered. Section 1 gives courts of record power to declare 'rights, status, and other legal relations', and provides that such declarations shall have the force and effect of final judgments. Section 2 gives to any interested person whose rights, status, or other legal relations are affected by * * * a statute * * * the right to have determined any question of the validity or construction of the statute and to obtain a declaration of rights, status, or other legal relations thereunder. Section 5 provides that the enumeration of powers in the sections of the Act does not limit or restrict the exercise of general powers conferred by section 1 in any proceeding where declaratory relief is sought if a judgment or decree will terminate the controversy or remove an uncertainty.
By both its order and its letter to the attorneys for the City the Board gave section 1-a, supra as its only reason for not accepting and filing the presentation as was found by the trial court. The letter states that but for section 1-a the presentation would have been accepted and filed. It conclusively appears that the Board was acting under a statute that the City says is unconstitutional. So long as this statute is in effect the City is barred from taking water from the Guadalupe River and the Board is precluded from granting it a permit to do so. The Board here contends the statute is constitutional while the City contends it is unconstitutional. The validity of the statute is brought in question and section 2 of art 2524-1 is applicable. The status and the legal relations of the City and the Board are affected and section 1 of said art. 2524-1 applicable. An uncertainty exists, declaratory relief is sought and a final judgment will terminate the controversy over the statute and remove the uncertainty. Section 5, supra.
It conclusively appears that the differences between the city and the Board has reached an antagonistic dispute which is pressed by the City and is opposed by the Board as to the validity of the statute, Seq. 1-a, supra, the rights of the City and the legal relations of the parties by reason of that statute are uncertain. It is therefore our opinion that a justiciable issue or controversy is presented as to the validity of the statute and the rights of the parties under that statute. Railroad Commission v. Houston Natural Gas Corp., Tex.Civ.App., 186 S.W.2d 117, error ref. w. m.; Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709, 172 A.L.R. 837; McDonald Texas Civil Practice, Vol. 1, Sec. 2.01, pp. 124-128.
The Board argues that the suit should be dismissed because more than six months have elapsed since the presentation was tendered to the Board for acceptance and filing and cites Art. 7496, supra. The presentation was not accepted by the Board for filing on March 2, 1953, however after the trial court's judgment the presentation was accepted by the Board as noted supra and the Board entered its order as follows:
'September 13, 1954
'In re: Extension of Time on Presentation Filed by the City of San Antonio, by Water Works Board of Trustees, San Antonio, Texas, No. 1301.
'The Board of Water Engineers on this day, a quorum being present, considered the petition for an extension of time filed...
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