Ennis Waterworks v. City of Ennis

• Decision Date: 13 March 1912
• Citation: 144 S.W. 930
• Parties: ENNIS WATERWORKS v. CITY OF ENNIS.
• Court: Texas Supreme Court

Page 930

144 S.W. 930

ENNIS WATERWORKS v. CITY OF ENNIS.

Supreme Court of Texas.

March 13, 1912.

Error to Court of Civil Appeals, Fifth Supreme Judicial District.

Suit by the City of Ennis against the Ennis Waterworks. From a judgment of the Court of Civil Appeals (136 S. W. 513) affirming a judgment for plaintiff, defendant brings error. Affirmed.

G. C. Groce, for plaintiff in error. Spence, Knight, Baker & Harris, for defendant in error.

DIBRELL, J.

This suit was instituted by the city of Ennis, a municipal corporation, on May 19, 1909, against Ennis Waterworks, a private corporation, and A. M. Morrison, a citizen of Ellis county, to cancel and annul a certain contract, ordinance, and franchise entered into and granted on March 19, 1900, by the city of Ennis with and to the defendant Morrison, who transferred all his rights under said contract, ordinance, and franchise grant to his codefendant, Ennis Waterworks, and to cancel and annul all subsequent ordinances and contracts entered into by said city with either of said defendants. The contract sought to be canceled and annulled pertained to a waterworks system for said city and its citizens, and the action was, in addition to such cancellation and annulment, to require the defendants within a reasonable time to remove their service pipes from the public streets, alleys, and highways of the city of Ennis, and to vacate their use of the city's property, streets, alleys, and highways, and to require the defendant, Ennis Waterworks, for a reasonable time after such final decree, in case the city resumed its possession of the service pipes in use by it in its service to its own citizens, to render the water service essential to the health and safety of the inhabitants of the city of Ennis, pending the completion by the city of its municipal water plant in course of construction.

The grounds upon which the city of Ennis based its action seeking to cancel and annul the contract entered into with the defendant Morrison, and by him assigned to the defendant Ennis Waterworks, in addition to the alleged failure to comply with certain conditions of the contract and a partial abandonment of it by defendants, are summarized in plaintiff's amended petition upon which the trial proceeded, as follows:

"(a) Because the city of Ennis was without lawful authority to grant unto the said A. M. Morrison a franchise of the tenor described having duration of 30 years, such duration being unreasonable, tending to create a perpetuity and embarrass the city of Ennis in the exercise of its governmental and municipal functions.

"(b) The city of Ennis was without authority to grant a franchise of the tenor set forth, purporting to lease public property to a private individual for private gain, and purporting to grant to such private individuals for private gain easements in and upon the public property, streets, alleys, and highways of the city of Ennis.

"(c) The city of Ennis was without authority to grant a franchise of the tenor described, because same purports to create in the grantee a monopoly, perpetuity, and exclusive and uncontrollable right, privilege, and benefit, contrary to the inhibition contained in article 1, § 26, of the Constitution of the state of Texas, which provides `perpetuities and monopolies are contrary to the genius of free government, and shall never be allowed,' and contrary to article 1, § 3, of said Constitution.

"(d) The city of Ennis was without authority to grant a franchise of the tenor described, for that same creates, or tends to create, a monopoly and a perpetuity, a grant of unreasonable duration, and one unreasonable, prejudicial, and hampering the city of Ennis in the exercise of the functions imposed upon it by law for the benefit of its inhabitants.

"(e) The city of Ennis was without authority to enter into the alleged contract, because same constituted an attempt on the part of the city to surrender and barter away, and on the part of the said Morrison to obstruct, the legislative discretion imposed by law upon the city for the benefit of its inhabitants.

"(f) The city was without lawful authority to grant a franchise of the tenor described because the same would have the necessary effect of limiting the legislative authority and discretion of succeeding lawmaking bodies of the city of Ennis, and embarrassing them in the exercise of that discretion which by law is imposed upon the lawmaking bodies of such municipalities."

The defendant Ennis Waterworks answered by general demurrer, special exceptions, general denial, and certain special pleas to show the contract valid. In addition to the foregoing pleas, said defendant pleaded in reconvention the indebtedness of the city of Ennis to it for services performed under the contract and accepted by said city in the sum of $1,031, for which judgment was asked. The defendant Morrison disclaimed any interest under the alleged contract further than as a stockholder in said Ennis Waterworks. The cause was submitted to the court without a jury, and judgment rendered for the city of Ennis, canceling and annuling the contract, together with the grant of franchise and all rights accorded thereby, and a recovery of all the property held by defendant belonging to the city of Ennis, together with the possession of all streets, alleys, and highways, lakes, and water mains, etc., and in favor of the defendant Ennis Waterworks against the city of Ennis for $1,050. The judgment, in addition to making proper provision for the removal of the property owned by the Ennis Waterworks, contained the following provisions: "During the time of suspension of process under this decree as above provided, the present temporary possession and use by the city of Ennis of that portion of the water supply system of the defendant corporation now in use by the city and necessary to supply the public with water and to prevent fires may continue upon condition that the city of Ennis pay to defendant Ennis Waterworks monthly, or into the registry of this court for its use, the reasonable value of the use of same, to wit, the sum of $125." The cause was dismissed as to the defendant Morrison upon his disclaimer. Upon appeal to the Court of Civil Appeals of the Fifth District the judgment of the trial court was on March 25, 1911, affirmed.

The trial court found the following facts, which were adopted by the Court of Civil Appeals, and about which there seems to be no contention:

"(1) That on March 19, 1900, the city of Ennis was, and for years prior thereto had been, a duly incorporated city, and municipal corporation, located in Ellis county, Tex., and incorporated as a city under the general laws of this state, and on and prior to that date was exercising its corporate functions in the territorial area authorized by its act of incorporation, and that on that date it had, and still has, a population exceeding 5,000 inhabitants, and a corporate area of several square miles. That within its limits are the lines of two systems of railway, namely, the Houston & Texas Central Railway and the Texas Midland Railway Company, and divers cotton gins, an oil mill, divers banks, mercantile establishments, homes, hotels, and other public institutions.

"(2) That on March 19, 1900, the city of Ennis owned, and ever since has owned, two large reservoir sites and lakes of impounded water, together with land pertaining thereto which will be hereafter referred to as the `New Lake' and the `Old Lake,' and at the same time the said city owned, and still owns, about 8,000 feet of valuable cast-iron 8-inch water main, which connected said `New Lake,' with a distribution system in said city then owned by defendant A. M. Morrison. And on said day of March, 1900, the water supply of said city of Ennis and its inhabitants and industries, including divers railways, cotton gins, and oil mills, business houses, residences, and other institutions of the city, was being taken from the reservoirs above mentioned, and distributed through said distribution system owned by said Morrison, and said lakes and mains were then and are now worth $10,000.

"(3) That on March 19, 1900, the then city council of the city of Ennis passed an ordinance purporting to give and grant unto defendant A. M. Morrison, his heirs and assigns, for a term of 30 years, the right and privilege to supply to the city of Ennis and the inhabitants thereof and for territory adjacent thereto, with water for domestic and other uses, and for preventing and extinguishing fires, under certain terms, conditions, and limitations, in such ordinance set out, and by such ordinance the mayor and the city secretary of said city were authorized and directed to enter into a contract with said Morrison according to the terms of said ordinance if accepted by him, and to sign and acknowledge such papers and documents as might be necessary to perfect and carry out such contract. I further find that said A. M. Morrison accepted the terms and conditions of the ordinance above mentioned, and that on the 22d day of March, 1900, he for himself and Charles B. Lewis, mayor of the city of Ennis, and C. M. Banner, secretary of said city, for and on behalf of said city, entered into a contract in accordance with the terms and conditions of said ordinance.

"(4) I further find that, immediately following the execution of the contract above mentioned, the defendant Morrison proceeded thereunder to furnish water to the city of Ennis, its inhabitants, and the inhabitants of the vicinity of said city, and located upon the lands of the city divers structures, pumping plants, engine rooms, etc., the water furnished by him being taken from the above-mentioned lakes or reservoirs belonging to the city of Ennis, and that he continued thus to furnish water to said city, its inhabitants, and the inhabitants of the vicinity, until about the 4th day of February, 1901, when by deed of that date he assigned to the defendant...