City of Athens v. Gulf States Tel. Co.

• Decision Date: 16 January 1964
• Docket Number: No. 30,30
• Citation: 374 S.W.2d 757
• Parties: CITY OF ATHENS, Texas, et al., Appellants and Cross-Appellees, v. GULF STATES TELEPHONE COMPANY, Appellee and Cross-Appellant.
• Court: Texas Court of Appeals

Page 757

374 S.W.2d 757

CITY OF ATHENS, Texas, et al., Appellants and Cross-Appellees, v. GULF STATES TELEPHONE COMPANY, Appellee and Cross-Appellant.

No. 30.

Court of Civil Appeals of Texas, Tyler.

Jan. 16, 1964.

G. F. Smith, Smith, McIlheran & Jenkines, Weslaco, John W. Key, Jr., Life, Bolding & Key, Athens, for appellants.

Richard B. Mayor, Butler, Binion, Rice & Cook, Houston, William H. Kugle, Jr., Athens, for appellee.

PER CURIAM.

Gulf States Telephone Company filed suit in the District Court of Henderson County against the City of Athens, its Mayor and its Commissioners seeking to enjoin the enforcement of two city ordinances fixing the rates for the Telephone Company to charge for its local telephone service in said city on the alleged ground that said rates as fixed by said ordinances were confiscatory and in violation of both State and Federal Constitutions.

The cause came on for hearing before the Court without a jury on the company's application for a permanent injunction; and after a full hearing, the Court entered its judgment as follows:

'It appearing to the Court that the Ordinance of the City of Athens, Texas, passed on September 8, 1961, establishes and prescribes a schedule of maximum rates and charges chargeable by Plaintiff for exchange telephone service in the City of Athens, Texas and that the ordinance of the City of Athens, Texas passed on July 30, 1962 prohibits Plaintiff from setting rates and charges in excess of those prescribed by said ordinance of September 8, 1961; and it appearing to the Court that such schedule of maximum rates and charges prescribed by said ordinance of September 8, 1961 do not permit Plaintiff to earn a fair return upon the fair value of its property used and useful in the rendition of such service, and it further appearing to the Court that Plaintiff had, prior to filing its suit, exhausted its administrative remedy, and has no adequate remedy at law; and

'The Court having concluded that (1) said ordinance of September 8, 1961 and said ordinance of July 30, 1962, of the City of Athens, Texas deprive the Plaintiff of its property without due process of law and are violative of the Plaintiff's rights under Amendment Fourteen of the Constitution of the United States and under Section 13, 17 and 19 of Article I of the Constitution of the State of Texas [Vernon's Ann.St.], and (2) that said ordinance of September 8, 1961 and said ordinance of July 30, 1962 are violative of Plaintiff's rights under the laws and statutes of Texas, including Article 1124 of the Texas Revised Civil Statutes and (3) that Plaintiff is entitled to the permanent injunctive relief prayed for in its verified petition;

I.

'It is accordingly ORDERED, ADJUDGED and DECREED by the Court that the Defendants, the City of Athens, Texas, D. D. Williams, Mack Adams, N. D. Geddie, Jr., Donald Murphree, Wilma Waddell, Joe Browning and Donald Foster, and their respective successors, officials, officers, agents, representatives, employees and attorneys, be, and each of them hereby is, perpetually enjoined:

'(a) from enforcing or attempting to enforce by suit or otherwise the charging, collecting or observance by Plaintiff of those rates and charges for telephone service prescribed by and set forth in the ordinance enacted by the City Council of the City of Athens, Texas on September 8, 1961, or as prescribed in any other ordinance or resolution heretofore enacted or adopted or presently effective in the City of Athens, Texas or from enforcing or attempting to enforce the provisions of the ordinance enacted by the City Council of the City of Athens, Texas on July 30, 1962;

'(b) from assessing or seeking to enforce against the Plaintiff, its officers, agents or employees, or any of them, any fine or penalty or criminal charge on account of the failure of the Plaintiff to charge and collect only such rates and charges for telephone service as were prescribed by said ordinance of September 8, 1961, or any other ordinance or resolution heretofore enacted or adopted or presently effective in the City of Athens, Texas; and

'(c) from interfering in any way with the Plaintiff in promulgating, charging and collecting fair and reasonable rates and charges for local exchange telephone service in the City of Athens, Texas until such time as Defendants or their successors shall validly prescribe fair and reasonable rates and charges therefor.

'All costs of court are taxed against Defendants, for which let execution issue.

II.

'And Plaintiff having duly and timely filed its motion for judgment, requesting therein, as further relief, that the Court grant Plaintiff an auxiliary or ancillary temporary injunction pending the outcome of any appeal; and Defendants having called the attention of the Court to the provisions of Article 1174, Texas Revised Civil Statutes, contending that under and by virtue of such statute no supersedeas bond is required of the City of Athens to suspend the efficacy of such judgment pending the outcome of appeal, the Court finds and concludes that (1) the Defendants, pursuant to said Article 1174, may suspend the efficacy of the judgment of this Court pending the outcome of any appeal without filing proper supersedeas bond and (2) that said Article 1174 does not violate Amendment XIV of the Constitution of the United States or Sections 13, 17 and 19, of Article I of the Constitution of the State of Texas; and (3) that such temporary injunctive relief prayed for in such motion should issue but for the reason that the relief would have the effect of denying to the Defendant City its right to...