Board of Water Engineers of State v. City of San Antonio

• Decision Date: 26 October 1955
• Docket Number: No. A-5083,A-5083
• Citation: 155 Tex. 111,283 S.W.2d 722
• Parties: BOARD OF WATER ENGINEERS OF THE STATE of Texas, Petitioner, v. CITY OF SAN ANTONIO, Respondent.
• Court: Texas Supreme Court

Page 722

283 S.W.2d 722

155 Tex. 111

BOARD OF WATER ENGINEERS OF THE STATE of Texas, Petitioner, v. CITY OF SAN ANTONIO, Respondent.

No. A-5083.

Supreme Court of Texas.

Oct. 26, 1955.

Rehearing Denied Nov. 23, 1955.

John Ben Shepperd, Atty, Gen., and Burnell Waldrep and John Reeves, Asst. Attys. Gen., and Joseph Carter, Austin, for petitioner.

J. D. Wheeler, Boyle, Wheeler, Gresham, Davis & Gregory, San Antonio, for respondent.

GARWOOD, Justice.

This so far successful suit by the respondent, City of San Antonio, against our petitioner, Board of Water Engineers of the State of Texas, presents questions as to (a) existence vel non of a justiciable controversy within our Uniform Declaratory Judgments Act of 1943, art. 2524-1, Vernon's Tex.Civ.Stats.Ann. and (b) validity of a given statutory amendment, Sec. 1-a of art. 1434a, Vernon's Tex.Civ.Stats.Ann., as against our constitutional restrictions concerning subjects and captions of legislative acts, art. III, Sec. 35, and local or special laws, art. III, Sec. 56, Vernon's Ann.St.Const.

The source of the controversy is the proposed construction by the Guadalupe River Authority of the so-called Canyon Dam in Comal County, a flood control project to be financed in whole or part by the United States. Evidently the corresponding federal laws and regulations permit of municipalities such as the respondent City participating in the project in order to augment their own water supply by building the dam higher than it would otherwise be and furnishing the necessary funds for this purpose. This participation, however, is in effect conditioned upon permission from the petitioner Board for the taking of the additional impounded waters in question.

The respondent City, one of the three largest in Texas, is faced with a serious water-supply problem by reason of a large and rapid increase in population and water consumption within and around its corporate limits, coupled with a serious fall in its potential underground water supply. While the City is located outside of the natural watershed of the Guadalupe River and could make use of the Canyon Dam waters only by means of an expensive pipe line, it has become interested in the dam project, as other cities of the state have done in other and comparable situations, to the point of making detailed studies and attempting to secure priorities for a portion of the excess waters it might make or help to make available if it should participate in the enterprise.

In the latter connection art. 7496, Vernon's Tex.Civ.Stats.Ann., provides, generally speaking, for an application or 'presentation' to the Board by 'any person who desires to investigate the feasibility of any water appropriation or use of water' in certain large quantities, upon approval and filing of which by the Board, the study may be made and a priority for the corresponding work and water appropriation established as of the filing date, subject to specified conditions as to beginning and completion of the work. The respondent City made such a presentation, but the Board refused to approve or file it, stating in effect that it would have approved and filed it as a proper and meritorious application under the statute, but for the single fact of the City being located beyond the natural watershed of the river and thus prohibited from diverting the waters by the express terms of Sec. 1-a of art. 1434a, supra. ¹

The respondent City thereupon instituted this suit for declaratory judgment that Sec. 1-a is unconstitutional. Its pleadings did not specifically allege arbitrariness upon the part of the Board nor specifically pray for ancillary relief such as mandatory injunction or mandamus. They did clearly allege the above-mentioned facts concerning the attempted filing of the respondent's presentation, including the Board's exclusive reliance on Sec. 1-a for its refusal to approve and file. Parts of the relief prayed were (1) a determination 'that the plaintiff has the legal right to have the presentation-accepted and filed-with priority' and (2) 'other relief, general and special.'

The trial court rendered the declaratory judgment as prayed. Following this the petitioner Board, pending its appeal, proceeded to file the respondent's presentation but with the express reservation that such filing was conditioned upon affirmance of the trial court judgment. The Austin Court of Civil Appeals has affirmed it. 273 S.W.2d 913.

No point appears to be made that the case is moot or otherwise nonjusticiable merely by reason of the actual filing of the application, and we think the conditional character of the Board's approval would have rendered such a view untenable had it been urged. But lack of a justiciable controversy is argued, as we understand the briefs, on the theory that the respondent's failure to allege an abuse of discretion or arbitrariness concedes a discretion of the Board to treat art. 1434a, Sec. 1-a, supra, as valid in the absence of a contrary adjudication, and therefore also the discretion to refuse approval and filing of the respondent's application. This alleged concession is said to make the suit one for a mere 'advisory opinion' as to the constitutionality of the statute in question. We do not so regard it.

The expressions 'advisory opinion' and 'justiciable controversy' as here used refer to the requirements, which undoubtedly exist as prerequisite to the declaratory judgment process, that (a) there shall be a real controversy between the parties, which (b) will be actually determined by the judicial declaration sought. See Hodges, General Survey of the Uniform Declaratory Judgment Act in Texas, Vol. 8, Vernon's Tex.Civ.Stats.Ann., p. XI (1951); also Sec. 6, art. 2524-1, supra; Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709, 172 A.L.R. 837; Railroad Commission v. Houston Natural Gas Corp., (Tex.Civ.App., cited in Cobb v. Harrington) 186 S.W.2d 117; Garwood Irr. Co. v. Lundquist, Tex.Civ.App., 252 S.W.2d 759, (wr. of er. refused); McDonald, Texas Civil Practice, Vol. 1, Sec. 2.01.

But to admit the legal fact, if it is a fact, that the petitioner Board may properly await the judgment of a court before ignoring the prohibition of Sec. 1-a, supra, is not to admit that there is no dispute over whether the Board has the ultimate duty to cease refusing to approve and file the respondent's application and whether the respondent has the present right, which it expressly pleaded and prayed to have declared, that such approval be given and filing accepted. If it were otherwise, there would rarely be a proper case for declaratory judgment concerning the validity of a statute, because there will be very few statutes which are not presumptively valid. That Sec. 1-a is presumptively valid is all that the respondent has admitted, if admitting anything. The controversy is as to whether it is actually valid. Clearly this is a real and practical controversy, because the respondent insists on its application being approved and filed despite the statute, on which the Board relies, and asserts valuable rights of a property nature to be effective or ineffective depending upon such approval and filing. Clearly, too, the judicial declaration in suit will determine the controversy, because the Board will approve and file the City's application if the statute is declared invalid and will properly continue to refuse to do so if it is declared valid.

Nor is there merit to the apparently further contention that a justiciable controversy is absent because of the failure of the respondent to pray specifically for other than declaratory relief. Even assuming the actual prayer for 'other relief, general and special' to be without significance, the argument is yet in the very teeth of Secs. 1 and 8 of art. 2524-1, supra, and, indeed, of the main purpose of declaratory judgments, which is to permit of settling actual controversies by appropriate judicial declaration, without necessarily invoking 'traditional relief', such as injunction or other writs, damages and the like. Indeed, it has been observed that some of the 'traditional remedies', such as decrees removing a cloud or cancelling an instrument, are themselves but declaratory judgments, despite that their names may suggest otherwise. See Hodges, supra, p. VII. The lack of a prayer for traditional types of relief does not of itself even suggest absence of the essential requirements of a real controversy, determinable by the suit.

The real issue in the case is whether Sec. 1-a, supra, ¹ is void because of art. III, Sec. 35 of our State Constitution, stating that:

'No bill * * * shall contain more than one subject, which shall be expressed in its title. But if any subject shall be embraced in an act, which shall not be expressed in the title, such act shall be void only as to so much thereof, as shall not be so expressed.'

Well prior to the existence of Sec. 1-a, the bulk of the present art. 1434a was enacted as Senate Bill No. 103, Chapter 76, p. 202, Acts of the First Called Session, 43rd Legislature (1933). The object of the Act, expressed in its first section, was to provide for the formation of corporations by three or more citizens of the State 'for the purpose of furnishing a water supply to towns, cities and private corporations and individuals.' Sec. 1 of the Act also detailed sundry provisions concerning dividends, sinking fund for replacements and the like as properly includible in the charter. Sec. 2 of the Act authorized such corporations as might be organized under the Act to contract with all federal agencies, borrow money, issue bonds and do other such things for the promotion of their corporate purposes. The remaining six sections provided for additional specific powers and duties of such corporations, more or less in elaboration of Sections 1 and 2. In no part of the Act does a word such as 'river', 'stream', 'watercourse', 'watershed', 'dam' or 'lake' occur.

Sec. 1-a was enacted in 1941 as part,...