Crouch v. City of McKinney

• Decision Date: 15 June 1907
• Citation: 104 S.W. 518
• Parties: CROUCH et al. v. CITY OF McKINNEY.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

Page 518

104 S.W. 518

CROUCH et al. v. CITY OF McKINNEY.^*

Court of Civil Appeals of Texas.

June 15, 1907.

Rehearing Denied October 12, 1907.

Appeal from District Court, Collin County; B. L. Jones, Judge.

Action by J. P. Crouch and another against the city of McKinney, in which the McKinney Electric Light & Motor Power Company intervened. From a judgment for defendant, plaintiffs and intervener appeal. Affirmed.

M. H. Garnett, G. R. Smith, and Abernathy & Abernathy, for appellants. I. E. Reeves and Abernathy & Mangum, for appellee.

RAINEY, C. J.

This suit was instituted by J. P. Crouch and J. P. Burrus to enjoin the city of McKinney and its officers to restrain the said city from furnishing electric lights to private citizens to be used in their private and business houses. It was alleged that the furnishing of said light to individuals would decrease the efficiency and effectiveness of the street lights already established and prevent the establishment of other street lights needed by the city; also, that it was in contravention of the Constitution of the state and the charter under which said city is operating; also, that it was diverting the revenues of the water plant to the operation of the electric plant, thereby using money procured by taxation for a purpose not authorized, when said revenues should be applied to the betterment of said water system; also, that the city is furnishing said lights to individuals at less than the cost of production, and to maintain the said incandescent system will necessitate large expenditure of money that can be derived only from taxation, which will not be used for public purposes, but for private gain alone. A temporary injunction was granted, and the defendants answered and filed a motion to dissolve. The McKinney Electric Light & Motor Power Company filed a plea of intervention, to which defendants filed an answer. The motion to dissolve was presented to the judge in vacation, and the same was sustained, and plaintiff and interveners excepted. Thereafter motion was made to the court to reinstate, and plaintiff and interveners by leave of court filed their first supplemental petition. The exceptions of plaintiff and interveners were overruled, and they duly excepted, and the cause was continued without prejudice. At the September term following, the motion to reinstate was overruled, to which exceptions were duly taken. The case was tried before a jury and verdict and judgment were rendered for defendants, and plaintiff and interveners appeal.

The first and second assignments of error complain of the action of the court in overruling the motion to reinstate the injunction. On the hearing of the motion to reinstate no statement of the evidence is embodied, if any was adduced, or incorporated in the record, and, as the case was tried on its merits, we will only consider the case from the evidence and proceedings on the trial in determining whether there was error committed. The city of McKinney is operated under the general laws of the state incorporating cities and towns. Article 421, Rev. St. 1895, reads: "To provide for lighting the streets and erecting lamp posts therein, and regulating thereof, and from time to time create, alter or extend lamp districts, to exclusively regulate, direct and control the laying and repairing of the gas pipes and gas fixtures in the streets, alleys, sidewalks and elsewhere." The city established an electric light plant in connection with its water plant and installed 31 arc lights in different parts of the city. It granted to certain corporations a franchise to install an electric light plant to furnish the citizens lights for their private and business houses. This franchise is now held by intervener the McKinney Electric Light & Motor Power Company. It is conceded by appellants that the city had the power to install the electric light plant for the purpose of lighting the streets, but that its power ceased there, and that it has not the power to furnish electric power to individuals for lighting private and business houses, until all portions of the city are furnished street lights. There are some portions of the city that are not supplied with street lights, but this condition exists for the want of funds to install them. The people of the city voted the issuance of bonds for installing the electric light plant. The proceeds of the sale of said bonds were exhausted in installing said plant and the 31 arc street lights, and no funds remain for the extension of the street lights. The capacity of the electric plant is much greater than necessary for the lighting of the streets, and the excess or surplus is used by the city in supplying lights to individuals for their private use. When the city has a surplus of power, after discharging its duty to the public, there seems to be no question of its authority to sell the excess to private citizens. Nalle v. City of Austin (Tex. Civ. App.) 21 S. W. 380; City of St. Louis v. The Maggie P. (C. C.) 25 Fed. 204; ...