City of Kermit v. Rush

• Decision Date: 11 October 1961
• Docket Number: No. 5476,5476
• Citation: 351 S.W.2d 598
• Parties: CITY OF KERMIT, Texas, a Municipal Corporation et al., Appellants, v. Mrs. M. RUSH, a Widow et al., Appellees.
• Court: Texas Court of Appeals

Page 598

351 S.W.2d 598

CITY OF KERMIT, Texas, a Municipal Corporation et al., Appellants, v.Mrs. M. RUSH, a Widow et al., Appellees.

No. 5476.

Court of Civil Appeals of Texas, El Paso.

Oct. 11, 1961.

Richard C. Milstead, Calvin W. Wesch, Kermit, for appellants.

John R. Lee, Kermit, for appellees.

FRASER, Justice.

This is an appeal from a judgment of the District Court of Winkler County, Texas, declaring certain portions of OrdinanceNo. 172 of the City of Kermit, Texas, to be null and void, and permanently enjoining appellants from enforcing any and all of said provisions of this ordinance.

The ordinance provided that: 'Each separate house, residence, apartment building, structure, trailer house and/or mobile home, shall have a separate water meter, or pay a separate monthly minimum charge for water.'The appellees maintained that they, as apartment house and trailer park owners, were being discriminated against in that the classification requiring them to pay minimum water rates for each unit was arbitrary and unreasonable.The appellant city had assessed one minimum water rate per month against such businesses as hotels and motels, classifying them as single unit users, and classified apartment houses and trailer parks as multiple unit users, charging them a monthly minimum water rate for each occupied living unit.

The trial court heard the matter without a jury and declared the ordinance to be null and void, and permanently enjoined appellants from enforcing such provisions of Ordinance 172.

The appellants maintained that this distinction between motels and apartment houses and trailer park operators was not an unreasonable or arbitrary distinction or discrimination.

The appellees maintained that there was no sound basis for the enforcement of the ordinance, and that it was arbitrary.These contentions were based largely on the fact that some of the motels, paying one minimum water rental rate per month, at various times had one or more permanent or family type residents.They further point out that it cost the city the same amount to supply water to the one meter at the motels as it did to separate meters located at the multiple unit installations; that there was no more service required and no burden on the city distinguishing one from the other, and the city was not required to spend additional money for either type of service; and, for these reasons, the ordinance and its enforcement was arbitrary and unjustly discriminatory.

We believe this matter to have been settled by the case of Caldwell v. City of Abilene, 260 S.W.2d 712, 714, decided by the Eastland Court of Civil Appeals, to which decision a writ was refused.It appears, from reading the Caldwell case, that the ordinances of the two cities were very similar.The court, in that particular case, defined the occupants of the apartments as resident users, and referred to tourist camps and motels and such as places where itinerant trade is predominant.(It did not say exclusive.)In that case, as here, there was no difference in the cost of supplying service to the different types of units, and the court held that the evidence was not sufficient to show that the City of Abilene acted in an arbitrary and unreasonable manner, or was guilty or unreasonable discrimination.The court says:

'It is well established that a municipal corporation operating its water works or other public utility has the right to classify consumers under reasonable classification based upon such factors as the cost of service, the purpose for which the service or product is received, the quantity or amount received, the different character of the service furnished, the time of its use or any other matter which presents a substantial difference as a ground of distinction.'(Citing73 C.J.S.Public UtilitiesSec. 27, page 1049;43 Am.Jur. 689;50 A.L.R. 121;and...