Caldwell v. City of Abilene

• Decision Date: 17 July 1953
• Docket Number: No. 3026,3026
• Citation: 260 S.W.2d 712
• Parties: CALDWELL et al. v. CITY OF ABILENE et al.
• Court: Texas Court of Appeals

Page 712

260 S.W.2d 712

CALDWELL et al. v.CITY OF ABILENE et al.

No. 3026.

Court of Civil Appeals of Texas, Eastland.

July 17, 1953.

Rehearing Denied Sept. 18, 1953.

Wilson Johnston and Tom Webb, Abilene, for appellants.

Smith, Eplen, Bickley & Pope, Abilene, for appellees.

COLLINGS, Justice.

A. E. Caldwell and others brought this suit against the City of Abilene and certain designated officials of the city of enjoin the enforcement of water and sewer ordinances which appellants claim to be discriminatory and unreasonable in that they require appellants to pay a higher rate than other residents users.The case was heard before the court without a jury and judgment entered denying the injunctive relief prayed for.A. E. Caldwell and other partiesplaintiff have appealed.

The charter of the City of Abilene provides:

'(Amended) The City of Abilene, through its Board of Commissioners, shall have all the powers that are now or that hereafter may be granted to cities and towns by general law, and in addition thereto, shall have such further powers as are granted by this Act.'

Section 59(y) of Article VIII provides the City shall have the right:

'To purchase, own, construct or lease, and to maintain and operate either within or without the limits of said city a system of waterworks, reservoirs, gas and electric light plants, sewer and other public utilities for the use of the public and the city, and to furnish service therefrom within the limits of said city, and to make and collect such charges and fees therefor as may be fixed by said Board, and to issue the bonds of said city in payment therefor; provided, that the issuance of said bonds shall first be submitted to a vote of the qualified voters of said city, as provided herein for other bond elections.'

The City of Abilene owns and operates its water department and sewer system, and by ordinances dated February 22, 1952, duly and regularly passed under the powers granted by its charter, set the water and sewer rates to be charged to water and sewer customers, and classified certain users under the ordinance.

Appellants are all apartment owners within the corporate limits of the city and each owns one or more apartment houses not coupled with any industrial enterprise within the meaning of the applicable city ordinances.Prior to the enactment of the ordinances in question appellants were charged a given minimum rate for the first 2,000 gallons of water consumed and a lesser rate for amounts in excess thereof.The minimum rate included a charge designed not only to cover the cost of water, but also costs of servicing the meter, and only one minimum charge was made for each meter regardless of the number of persons or family units receiving water through the meter.

The provision of the ordinance in question applying to apartment house owners was as follows:

'In all cases where more than one living or business unit is supplied through one meter, a minimum charge will be made for each living unit or business unit supplied through such meter.If two or more living or business units are supplied through one meter, a minimum charge will be made each month for each unit regardless of whether units are occupied.'

The City charges each appellant for water and sewerage disposal service in accordance with the ordinance.Charges to apartment houses are made under a residential classification.The City furnishes such services, however, to hotels, tourist camps and motels and other places where itinerant trade is predominant under an industrial classification under which only one minimum charge is made regardless of the number of persons or family units supplied.In some of these places, some units are used as family units and the classification of the enterprises is not changed on that account.Apartment houses under the ordinances have the right to install additional meters if they so desire and then be charged separately for each living unit in the apartment house upon the basis of the actual use by that apartment.None of the appellants have chosen to exercise this right.

The cost to the City of Abilene in furnishing water and sewerage disposal to an apartment house with two or more living units, but having only one water meter, is no greater than the cost of furnishing the same service to a private dwelling having only one water meter and having the same fixtures and using the same amount of water as the apartment...