City of Beaumont v. Priddie
| Decision Date | 26 July 1933 |
| Docket Number | Motion No. 7588; No. 7929. |
| Citation | 65 S.W.2d 434 |
| Parties | CITY OF BEAUMONT et al. v. PRIDDIE et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Jefferson County; Geo. C. O'Brien, Judge.
Suit by W. A. Priddie and others against the City of Beaumont and others. Judgment for plaintiffs, and defendants appeal.
Affirmed in part and reversed in part.
Steve M. King, City Atty., Jno. D. Rienstra, Asst. City Atty., and Duff & Cecil, all of Beaumont, for appellants.
Howth, Adams & Hart, Gordon, Lawhon, Davidson & Sharfstein, J. L. C. McFaddin, and Sonfield & Sonfield, all of Beaumont, for appellees.
Appeal from a final judgment upon a special issue verdict, enjoining the city of Beaumont and its governing officials (1) from carrying out a contract between the city and the railroad (Texas & New Orleans Railroad Company) providing for separation of the grades of the railroad's tracks from those of the city's streets; and (2) from issuing bonds in furtherance of the contract.
The bond issue which had been authorized by an election held for that purpose was in the sum of $900,000, the approximate amount (in part fixed and in part estimated) of the obligations (other than damages) which the city assumed under the contract, the items of which were:
(1) A storm sewer necessary to drain underpasses for city streets, estimated to cost $40,000.
(2) Certain rights of way for street purposes (new streets and widening existing ones) over the railroad's property, for which the city was to pay the railroad $384,500, plus the cost (estimated at $42,500) of acquiring and clearing of buildings two strips of land; and the agreed value ($7,500) of another strip of land owned by the railroad, and damage to building thereon, necessary to widen the railroad right of way in accordance with the grade separating plan. This item included damage to the railroad's buildings, etc.
(3) The city was to pay the railroad $194,063, the agreed amount of one-half the cost of underpasses provided for in the contract. This item included one-half the cost of a viaduct at Mariposa street crossing.
(4) The city was to pay one-half of any recovery by property owners on account of property damage.
(5) The city was to cause the removal and reconstruction of tracks, poles, wires, pipe lines, etc., of public service companies, estimated at $35,000. Other items obligatory upon the city included the cost of paving, constructing sidewalks, and acquisition of property for street widening purposes.
The contract was embodied in an ordinance regularly passed, and was contingent upon the carrying of the bond election, which resulted as already stated.
The items covering acquisition of additional right of way for the railroad, the city's contribution to the cost of underpasses, removal of utility companies' instrumentalities, construction of sewer, and assumption of property damage, are attacked as ultra vires the city's powers both under the Constitution and the city charter. The sewer construction obligation is further attacked as not being within the purpose of the bond election ordinance. The entire contract and various items therein are attacked as a fraudulent and arbitrary abuse of the city's discretionary powers.
The following general statement will suffice, we think, to a clear understanding of what we regard the controlling issues presented by the appeal:
The railroad right of way extends across the city from east to west, dividing the city territorially and as to its business and residential districts into two approximately equal portions. The eastern boundary of the city is coincident with the west bank of the Neches river, navigable at this point to ocean-going vessels, and crossed by the railroad's bridge. Beginning at this bridge and proceeding west, the railroad tracks are crossed at grade by five streets in the following order: Cypress, Travis, Main, Pearl, and Orleans; the four latter of which are in the heart of the business district and are the most heavily traveled streets in the city. The railroad's yards extend from Orleans to Fourth street, a distance of about one mile, between which there are no street crossings of any kind, except at Mariposa street, at which the railroad tracks are crossed by means of a viaduct (overpass). This viaduct connects the two residence portions of the city, and is the most heavily traveled street in the residence district. A portion of the industrial district is adjacent to and on both sides of the railroad right of way between Orleans and Mariposa streets. Some of the largest industries in and adjacent to the city are along the river water front north of the railroad's bridge.
Beaumont is a city of some 60,000 inhabitants and the situation, as above outlined, was recognized by the city and railroad and shown by undisputed testimony to be virtually intolerable, due to the danger to life and property and blocking of traffic on heavily traveled business streets, the increased fire hazard incident to impeding the passage of the city's fire-fighting instrumentalities between the two portions of the city, and the absence of any street crossing between Orleans and Mariposa streets. Abating the grade crossings and of opening other streets west of Orleans was recited as a necessity in the contract between the city and the railroad.
This necessity had been generally recognized for many years, and about the year 1917 a movement began looking to remedying the evil, resulting in a contract in 1924 known as the Ash plan. Nothing, however, was done under this contract; and in December, 1927, as the result of activity on the part of the Beaumont Chamber of Commerce and other civic organizations, a committee of prominent citizens, headed by J. F. Weed, and known as the committee of seven, was created to study the problem and devise and recommend a plan for its solution. This committee employed an engineer, and, after careful study of the entire problem, and numerous conferences and negotiations with the railroad's executive and engineering officials, an agreement was reached, the terms of which were embodied in a report of the committee of seven to the mayor and commission of Beaumont, which was dated July 7, 1930. This report reviewed in great detail the work of the committee and its negotiations with the railroad; and set forth with much particularity the details of the proposed plan. The entire cost was estimated at about $4,000,000, and the cost to the city at less than $900,000. However, the report reads: "The city is to pay only about $233,000.00 towards the actual cost of the work proposed; the remainder of the city's expense is due to purchase of land for opening and widening and paving streets and paying for damages to buildings for such street openings and widening and for sewerage."
Speaking generally, the plan contemplated raising the railroad grade to accommodate a double track beginning at Fourth street, and proceeding eastward to the city limits, where a double track lift bridge of bascule type was to be constructed by the railroad across the Neches river. This also necessitated raising the railroad grade for some distance east of the river. Underpasses were to be constructed at the five street crossings, Cypress to Orleans, and at five additional streets to be opened west of Orleans, the right of way for the latter to be acquired by purchase from the railroad. The Mariposa viaduct was to be reconstructed and elevated so as to provide the necessary clearance incident to raised railroad grade. The city was to construct and own a storm sewer from Fourth street to the river, the railroad granting an easement along its right of way for that purpose. The railroad yards were to be moved to a tract just west of the city limits, which the railroad had acquired for that purpose. The railroad retained, however, its tracks in the old yards, and reserved trackage rights over the new streets the city was acquiring from the railroad.
The cost of the city's obligations, fixed and estimated, is given in a letter of March 27, 1930, by the committee of seven to Mr. Waide (vice president of the Southern Pacific Lines); the items of which read:
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