City of Altus, Oklahoma v. Carr

• Decision Date: 06 May 1966
• Docket Number: Civ. A. No. 1580.
• Citation: 255 F. Supp. 828
• Parties: CITY OF ALTUS, OKLAHOMA, et al. v. Waggoner CARR.
• Court: U.S. District Court — Western District of Texas

255 F. Supp. 828

CITY OF ALTUS, OKLAHOMA, et al. v. Waggoner CARR.

Civ. A. No. 1580.

United States District Court W. D. Texas, Austin Division.

May 6, 1966.

COPYRIGHT MATERIAL OMITTED

A. W. Walker, Jr., Ben B. West, Dallas, Tex., James W. Wilson, McGinnis, Lochridge, Kilgore, Hunter & Wilson, Austin, Tex., for plaintiffs.

Hawthorne Phillips, First Asst. Atty. Gen., J. Arthur Sandlin, Roger Tyler, Asst. Attys. Gen., of Texas, Austin, Tex., for defendant.

Before THORNBERRY, Circuit Judge, SPEARS, Chief Judge, District Court, and SUTTLE, District Judge.

SUTTLE, District Judge.

This is a suit for declaratory judgment decreeing that Section 2 of Article 7477b, Vernon's Ann.Tex.Civ.Stats.¹ is unconstitutional and void as being in violation of the Commerce Clause² of the United States Constitution, and for permanent injunction restraining the enforcement or execution thereof against these plaintiffs.

Section 2 of Article 7477b, Vernon's Ann.Tex.Civ.Stats. (Supp.1965) reads:

"No one shall withdraw water from any underground source in this State for use in any other state by drilling a well in Texas and transporting the water outside the boundaries of the State unless the same be specifically authorized by an Act of the Texas Legislature and thereafter as approved by it."

After a careful consideration of the record, briefs and arguments of counsel, we are of the opinion the plaintiffs are entitled to the relief prayed for.

Summary of Stipulated Facts

The Plaintiff, City of Altus, Oklahoma, is a municipal corporation and county seat of Jackson County, Oklahoma, and Plaintiffs, C. F. Mock and Pauline Mock, are husband and wife and reside in the City of Altus, Oklahoma. The Defendant Waggoner Carr is the Attorney General of the State of Texas.

The Plaintiff, City of Altus, has an annual water allotment of 4,800 acre feet, set in 1941, from the W. C. Austin Project of the U. S. Bureau of Reclamation. In recent years, due to a rapid growth in population,³ there has been an increased demand upon the available water supply, which cannot be increased as all available water drawn from the Project over and above the allotment is committed to other users. In 1963, the City of Altus used its entire water allotment, and in 1964 was required to borrow some 700 acre feet of its 1965 allotment.

In December, 1963, foreseeing the problem of water shortage, the City of Altus retained an engineering firm to make recommendations as to potential sources of water that might be economically developed so as to meet its future requirements. In its March, 1964, Report on Water Supply,⁴ the engineering firm recommended that the City of Altus acquire from C. F. Mock and his wife, Pauline, the subsurface water rights in and to land owned by them in northern Wilbarger County, Texas, noting in such report that the Attorney General of the State of Texas in December, 1963, rendered an opinion that it would be legal for a Texas property owner to sell water from his land to an Oklahoma user.⁵

The Mocks' land, approximately 5,663 contiguous acres, lying in northern Wilbarger County, Texas, borders the Red River, the boundary line between Wilbarger County, Texas, and Jackson County, Oklahoma, and is some fourteen miles from the City of Altus, Oklahoma. Approximately six square miles of the Mocks' land is located in the extreme northern portion of an area covering approximately 75 square miles known as the Odell Sand Hills, under which there is a natural subsurface water-bearing formation which contains a high quality percolating ground water suitable for municipal use. The City of Vernon, Texas, some 14 miles south of the Mocks' land, has several wells drawing from this formation, the northern-most well being some four miles south of the southern boundary of the Mock property. With the exception of the Odell Sand Hills, there is no economically available ground water within a 50-mile radius of either the City of Altus or the City of Vernon which is of such quality and quantity.

With the permission of the Mocks, and at the request of the City of Altus, a water-well drilling and engineering firm drilled and logged a series of 26 test holes on the Mock land during the month of July, 1964, for the purpose of testing the quantity and quality of the subsurface water and determining the cost of its production. In its report of September, 1964,⁶ the drilling and engineering firm recommended that the City of Altus develop two well fields by drilling 13 wells at suggested sites which would have an estimated yearly yield of approximately 2100 acre feet. This combined with the annual allotment from the W. C. Austin Project is estimated to be sufficient to serve the needs of the City of Altus for a period of more than twenty-five years.⁷

In November, 1964, the City of Altus entered into a contract with the Mocks whereby the City of Altus was granted an option for a period of nine months within which to purchase a lease for producing water from subsurface water-bearing formations underlying the Mocks' land. Then, in December, 1964, the citizens of the City of Altus voted to issue $2,000,000.00 in city bonds to pay for the cost of financing the leasing, drilling and transportation of the water produced from the Mocks' land. The bonds were issued in May, 1965, and in the same month the City of Altus and the Mocks executed a lease whereby the Mocks granted, demised, leased and let unto the City of Altus the Mocks' land for the sole and only purpose of mining and operating for subsurface water and for the transportation of such water to the City of Altus for its use. Pursuant to this lease, the City of Altus has to date incurred expenses totaling approximately $110,720.09 in connection with the investigating and leasing of the subsurface water formation underlying the Mocks' land.

On January 26, 1965, however, Article 7477b was introduced in the House of Representatives of the State of Texas as House Bill No. 225 by W. S. Heatly. Representative Heatly represents District No. 82, which includes Wilbarger County, Texas. The Texas Legislature passed Article 7477b on May 28, 1965, and adjourned on May 31, 1965. Unless called into special session, the Texas Legislature will not reconvene until 1967.

Jurisdiction

The Defendant, Waggoner Carr, asserts that this Court does not have jurisdiction to consider this case for the reasons that: (1) Section 2 of Article 7477b has never been construed by any Texas Court; (2) the Plaintiffs have made no effort to exhaust the state remedy made available to them by the terms of Section 2 of Article 7477b; (3) the suit is prohibited by the 11th Amendment to the United States Constitution as being one by citizens of one state against another sovereign state, and (4) that since the Attorney General of the State of Texas has in no way manifested an intent to enforce Section 2 of Article 7477b, a suit seeking declaratory relief to have this statute rendered unconstitutional is premature and presents no controversy to give this court jurisdiction.

The Abstention Doctrine

In regard to the first contention, the Defendant submits that it is a well settled principle that federal courts will abstain to exercise jurisdiction in a case where a state statute is under attack as being violative of the United States Constitution until such state statute has first been construed by the courts of that state. This, in general, is true, e. g., Government and Civic Employees Organizing Committee, CIO v. Windsor, 353 U.S. 364, 366, 77 S.Ct. 838, 1 L.Ed.2d 894 (1957); Shipman v. Dupre, 339 U.S. 321, 322, 70 S.Ct. 640, 94 L.Ed. 877 (1950); American Federation of Labor v. Watson, 327 U.S. 582, 595-599, 66 S.Ct. 761, 90 L.Ed. 873 (1946); Spector Motor Service v. McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152, 89 L.Ed. 101 (1944); Chicago v. Fieldcrest Dairies, Inc., 316 U.S. 168, 171-173, 62 S.Ct. 986, 86 L.Ed. 1355 (1942); Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 499-501, 61 S.Ct. 643, 85 L.Ed. 971 (1941). The bases for the doctrine of abstention are "the desirability of avoiding unseemly conflict between two sovereignties, the unnecessary impairment of state functions, and the premature determination of constitutional questions". Martin v. Creasy, 360 U.S. 219, 224, 79 S.Ct. 1034, 3 L.Ed.2d 1186 (1959); Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943); Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, (1941). We observe, however, the doctrine of abstention is not an absolute rule to be applied to all cases involving the constitutionality of a state statute. In the recent case of Baggett v. Bullitt, 377 U.S. 360, 375, 84 S.Ct. 1316, 1324, 12 L.Ed.2d 377 (1964), the Supreme Court stated:

"The absention doctrine is not an automatic rule to be applied whenever a federal court is faced with a doubtful issue of state law; it rather involves a discretionary exercise of a court's equity powers. Ascertainment of whether there exist the `special circumstances,' * * * prerequisite to its application must be made on a case-by-case basis." (citations omitted)

In this connection, we note that in the case of Harrison v. N.A.A.C.P., 360 U.S. 167, 176, 79 S.Ct. 1025, 3 L.Ed.2d 1152 (1959), the Supreme Court, in restating the abstention doctrine, said "that the federal courts should not adjudicate the constitutionality of state enactments fairly open to interpretation until the state courts have been afforded a reasonable opportunity to pass upon them" (emphasis supplied), and that the case of the United States v. Livingston, 179 F. Supp. 9, 12-13 (E.D.S.C., 1959) affirmed 364 U.S. 281, 855, 80 S.Ct. 1611, 4 L.Ed. 2d 1719 (1960), stated:

"Though never interpreted by a state court, if a state statute is not fairly subject to an interpretation which will avoid or modify the federal constitutional question, it is the duty of a federal court to decide the federal question when presented to it."

Acc...