City of Mason v. West Tex. Utilities Co.

• Decision Date: 07 February 1951
• Docket Number: No. A-2752,A-2752
• Citation: 237 S.W.2d 273,150 Tex. 18
• Parties: CITY OF MASON v. WEST TEXAS UTILITIES CO.
• Court: Texas Supreme Court

Page 273

237 S.W.2d 273

150 Tex. 18

CITY OF MASON v. WEST TEXAS UTILITIES CO.

No. A-2752.

Supreme Court of Texas.

Feb. 7, 1951.

Rehearing Denied April 4, 1951.

R. E. Lee, Mason, for petitioner.

Scott Snodgrass, San Angelo, Roscoe Runge, Mason, Wagstaff, Harwell, Wagstaff & Alvis, E. L. Harwell, Abilene, Looney, Clark & Moorhead, Everett L. Looney, R. Dean Moorhead, Austin, for respondent.

SHARP, Justice.

The City of Mason filed this suit against the West Texas Utilities Company for a mandatory injunction to compel compliance with an ordinance of the city requiring the West Texas Utilities Company to remove all poles, wires, transformers, conduits, and other property used by it in, upon, under, across, and along the public streets and alleys within the City of Mason. The case was tried before the court without a jury, and the trial court entered judgment in favor of the City of Mason. An appeal was taken to the Court of Civil Appeals, and that court reversed the judgment of the trial court and rendered judgment that the West Texas Utilities Company had the right to maintain its poles and lines in the City of Mason, without the city's consent, for a period of ten years after November 13, 1945, the date of the city's incorporation. 229 S.W.2d 404.

In 1925 the Commissioners' Court of Mason County granted the respondent a franchise to operate and maintain its lines for conducting electric current and supplying light, heat, and power to cities and towns in Mason County, and gave it an easement over and along public county roads and highways, and upon and across streets, alleys, sidewalks, and public grounds of unincorporated towns. Such franchise was to run for a period of fifty years from October 13, 1925. Respondent accepted the terms of the franchise, and built its lines into the City of Mason in 1926. Mason was incorporated November 13, 1945, and in 1948 constructed its own electric power system.

This case involves the construction of House Bill 393, Chapter 228, Acts 51st Legislature, 1949, now Article 1436a, Vernon's Annotated Civil Statutes.

It is of primary importance in construing a statute to ascertain the purpose for which the statute was enacted. Unquestionably this act was passed to give relief to utility companies from the consequences resulting from the two recent decisions of this Court in State ex rel. City of Jasper v. Gulf States Utilities Company, 144 Tex. 184, 189 S.W.2d 693, and Incorporated Town of Hempstead v. Gulf States Utilities Company, 146 Tex. 250, 206 S.W.2d 227. Prior to those decisions it was the opinion of many that the commissioners' courts of counties in this state had the authority to permit the use of the streets and alleys of unincorporated towns by utility companies in the conduct of their business. It is undisputed that some utility companies, including respondent, acting under this belief, and in good faith, invested considerable sums of money in unincorporated towns, and that the two decisions mentioned above caused them great losses in their investments. The history of the enactment of the statute under consideration clearly shows that the very purpose of its enactment was to afford relief to such utility companies for the losses resulting from the effect of the two decisions cited above.

It is agreed that under the law as decided in the Jasper and Hempstead cases, supra, the City of Mason had the right to order respondent to remove its poles and lines from its streets and alleys, prior to the enactment of Article 1436a. It is also agreed that as to towns incorporated after the enactment of Article 1436a, the utility companies affected would have ten years after the date of incorporation of any such town within which to operate their business therein without the consent of such town. The parties disagree over the question whether Article 1436a should be construed to confer the right on utility companies to maintain their previously built lines in cities incorporated before the enactment of Article 1436a, without the consent of such cities, for a period of ten years from and after the date of incorporation of any such city.

Two bills were introduced, one in the Senate and the other in the House. The House and the Senate were unable to agree on a bill. On account of the disagreement, the bill was referred to a free conference committee, where the differences were adjusted, and the bill was finally passed by both branches of the Legislature, and was approved by the Governor. The record shows that the bill had been radically amended in several particulars before its final passage, and that it undertakes to control several classes of utility companies; and it is obvious that the language used in expressing the intention of the Legislature is not entirely clear.

The record shows that at the time the Legislature was considering Senate Bill No. 205 and House Bill No. 393, the Governor addressed a special message to the Legislature on this very question, and submitted the two bills as emergency matters for its consideration. In that message the attention of the Legislature was called to the importance of the question and that immediate relief should be given companies affected by the two decisions mentioned above. We quote from the message as follows:

'Austin, Texas, March 9, 1949.

'To the Members of the 51st Legislature:

'The continued expansion of facilities for the distribution of electric light and power in rural areas of Texas is of great importance. All of us know that many electric lines have been built along the right-of-way of state highways and county roads. Many thousands of miles of lines have been so constructed and built by rural electric cooperatives and other utilities engaged in the distribution of electric power. These lines were built in good faith under franchises granted by the various Commissioners' Courts of Texas, and they provide the means of getting electric light and power to many small towns and rural communities.

'In what are known as the Hempstead and Jasper cases, the Supreme Court of Texas has held that the Commissioners' Courts had no authority to grant such franchises. The result of this decision is that all such lines constructed under county franchises are now illegally on the right-of-way of such roads and highways. The expense of moving them would be prohibitive and in many rural areas and unincorporated towns the people cannot enjoy the benefits of electric service unless the lines are built along the edge of the right-of-way of highways and county roads.' (Emphasis ours.)

This act deals with two classes of utility companies, and the restrictions and privileges expressed therein are not applicable to both alike. That part of the act which deals with the rights of respondent, and whose rights are similar to those of the Gulf States Utilities Company in the two cases cited above, is involved in this suit.

In order to show the intention of the Legislature in enacting this law, we copy from the statute the following:

The caption of the act reads as follows: 'An Act to facilitate and encourage the distribution of electric energy to the inhabitants of the small towns, villages and rural areas of the State of Texas by providing that lines for the transmission and transportation of electric energy may be constructed, erected and maintained on the right-of-way of roads and highways outside the corporate limits of cities and towns and providing that such lines may be constructed, erected and maintained within the corporate limits of a city or town with the consent and under the direction of its governing body; providing that where such lines are built into an unincorporated town, which thereafter becomes an incorporated town, the corporation owning such lines shall have the right to extend, operate and maintain its lines in said town for a period of ten years after the date of such incorporation; providing adequate standards of construction for the safety of the public; repealing all laws and parts of laws in conflict herewith; containing the severability clause; and declaring an emergency.' (Emphasis ours.)

Section 1, among others, contains the following provision: 'In the event a State highway or county road on which lines have been built passes through or into an unincorporated city or town, which thereafter becomes an incorporated city or town, the corporation owning such lines shall continue to have the right to build, maintain and operate its lines along, across, upon and over the roads and streets within the corporate limits of such city or town for a period of ten (10) years from and after the date of such incorporation, but thereafter only with the consent of the governing body of such city or town, but this provision shall not be construed as prohibiting such city or town from levying taxes and such special charges for the use of the streets as are authorized by Article 7060, Revised Statutes of the State of Texas; and the governing body of such city or town may require any such corporation, at its own expense, to relocate its poles and lines so as to permit the widening or straightening of streets, by giving to such corporation thirty (30) days notice and specifying the new location for such poles and lines along the right-of-way of such street or streets.' (Emphasis ours.)

Section 4 reads: 'The fact that since the beginning of the electric power and light business in this State the distribution of electric energy to areas outside of the limits of incorporated cities has been based on the legal concept that the Commissioners Courts of this State had the authority to grant franchises for the use of the roads and highways; and the further fact that the Supreme Court has held that Commissioners Courts have no such authority; and the fact that, under such decision, there is no agency authorized to permit electric lines to be built along the edge of the right-of-way of highways and public roads, or to authorize the...