Franks v. Welch, 14569

• Citation: 389 S.W.2d 142
• Decision Date: 25 March 1965
• Docket Number: No. 14569,14569
• Parties: Wallace W. FRANKS et al., Appellants, v. Louie WELCH et al., Appellees.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 142

389 S.W.2d 142

Wallace W. FRANKS et al., Appellants, v. Louie WELCH et al., Appellees.

No. 14569.

Court of Civil Appeals of Texas, Houston.

March 25, 1965.

Rehearing Denied April 15, 1965.

Lloyd M. Lunsford, South Houston, and J. Charles Whitfield, Jr., Houston, for appellants.

Clark, Thomas, Harris, Denius & Winters, Martin Harris, Austin, and McCall, Parkhurst & Horton, Millard Parkhurst, Dallas, for appellee The Trinity River Authority of Texas.

John Wildenthal, Jr., City Atty., Vinson, Elkins, Weems & Searls, Victor Bouldin, Fulbright, Crooker, Freeman, Bates & Jaworski, Leon Jaworski, L. Keith Simmer and Wiley Caldwell, Houston, for appellees Louie Welch and City of Houston. WERLEIN, Justice.

This suit was brought by appellants to have declared void and unenforceable a contract between appellee, City of Houston, and appellee, the Trinity River Authority of Texas, dated on or about September 8, 1964, and to enjoin the appellees from performing the contract and from endorsing or otherwise guaranteeing bonds to be issued pursuant thereto. This suit was filed shortly before the bonds contemplated by the contract were to have been issued and sold and shortly before the project was to have been commenced.

The contract provides for the construction of Livingston Reservoir and Salt Water Barrier, sometimes referred to as the Livingston Dam and Reservoir Project, or Lake Livingston, on the Trinity River, from which the City of Houston would receive water. 'The contract contains detailed provisions covering many areas of agreement. * * * the Authority agrees to supply to the City and the City agrees to take 70% of the water yield of the Livingston Reservoir and the Salt Water Barrier Projects, when constructed, for its own use and the use of the customers of its distribution system; and the City agrees to pay to the Authority from the revenues of its water system an amount equal to the amount of the Authority's bonds and interest thereon as the same becomes due. The contract was authorized on behalf of the City by the qualified electors thereof by an affirmative vote of 49,114 to a negative vote of 11,256, and on behalf of the Authority by a resolution of its Board of Directors.' Trinity River Authority of Texas v. Carr, Attorney General, Tex.1965, 386 S.W.2d 790.

This suit was brought by appellants in their capacities as citizens and taxpayers of the City of Houston, and property owners within the City, and also as purchasers and users of domestic water sold by the City of Houston. They alleged that they also filed the suit as a class action, suing on behalf of themselves and all taxpayers, property owners and citizens of the City including non-residents owning property or subject to taxation in the City, and all other persons interested in or affected by the issuance of any securities by the City of Houston for the purpose of financing directly or indirectly the Trinity River Project.

Appellants in their verified petition have alleged various reasons why the contract in question should be held invalid and unenforceable. In view of our holding herein, it will not be necessary to discuss appellants' contentions with respect to the invalidity of the contract since the sole question before us is whether the trial court erred in granting appellees a summary judgment on the ground that appellants did not have as a matter of law a justiciable or litigable interest in the subject matter of the suit. We have reached the conclusion that the trial court did not err in granting such judgment. In City of San Antonio v. Stumburg, 70 Tex. 366, 7 S.W. 754, the Court said:

'* * * no action lies to restrain an interference with a mere public right, at the suit of an individual who has not suffered or is not threatened with some damage peculiar to himself. * * * It has been intimated that the reason this rule was established was in order to prevent a multiplicity of suits which might result if each individual were permitted to sue for damage resulting from a public nuisance which was common to all others, but we apprehend that the underlying principle is that individuals have a right to sue for a redress of their own private injuries, but for such as affect all the public alike an individual is not the representative of the public interest.'

Since this rule of decision was announced by Justice Gaines, it has been followed and approved not only by a number of our courts of civil appeals but also by our Supreme Court in refusing outright writs of error in several cases. Among the controlling authorities, in addition to the case of City of San Antonio v. Stumburg, supra, are: Clark v. City of San Angelo, 269 S.W.2d 594, Tex.Civ.App.1954, no writ hist.; Fisher v. City of Bartlett, Tex.Civ.App.1934, 76 S.W.2d 535, error dism.; Hazelwood v. City of Cooper, Tex.Civ.App.1935, 87 S.W.2d 776, error ref.; West Texas Utilities Co. v. Smith, Tex.Civ.App.1943, 168 S.W.2d 665, error ref.; Powell v. City of Baird, Tex.Civ.App.1939, 132 S.W.2d 464, no writ hist.; Houston Natural Gas Corp. v. Wyatt, Tex.Civ.App.1962, 359 S.W.2d 257, no writ hist.; Estes v. City of Granbury, Tex.Civ.App.1958, 314 S.W.2d 154, error ref.; Hoff v. Westhoff, Tex.Civ.App.1936, 102 S.W.2d 293, error ref.; and Schenker v. City of San Antonio, Tex.Civ.App.1963, 369 S.W.2d 626, ref., n. r. e.

In Hazelwood v. City of Cooper, Tex.Civ.App., 87 S.W.2d 776, error ref., the court stated:

'It is apparent from a study of the petition of the appellant, as well as from his brief filed in this cause, that he bases his right to bring this cause of action on the fact 'that he is a longresident, property-owning taxpayer of the city of Cooper, Delta County, Texas; that he is likewise a user of electric current for himself and family and in his business * * *."

'* * *

'As stated in the beginning, it appears from the petition of the appellant that the notice of election and the bonds voted by the people of the city of Cooper contained the statutory provision that they could never be a debt against the city, payable out of funds raised, or to be raised by taxation; but the payment of said bonds would be made out of the proceeds derived from the operation of the plant. Therefore, the injuries, if any, of which appellant complains are common to all the citizens of Cooper and not peculiar to him. By this action of the city of Cooper in contracting with the Central Engineering & Supply Company for the construction of a municipal light plant and executing a mortgage thereon, the appellant, Hazelwood, has not been singled out and had special damages inflicted upon him.

'* * *

'Therefore, in our opinion, the appellant has shown no litigable interest in this suit, and the trial court properly sustained the general demurrer to his petition because same stated no cause of action which was peculiar to him and not to all other citizens in the city of Cooper. We think this case is governed in its entirety by the case of Fisher et al. v. City of Bartlett et al., supra, to which attention is directed.'

In Powell v. City of Baird, Tex.Civ.App., 132 S.W.2d 464, the plaintiffs sued as citizens, taxpayers and users of electric current, to cancel a contract for the construction of a municipal electric power plant and to enjoin the issuance of bonds therefor. The court said:

'Since by virtue of the law the injunction issued by the trial court, and the contract the bonds are not a debt of the city, are not payable from taxes and, if paid, can be paid only from the income from the municipal plant, and since this is likewise true of the expense of operation and maintenance (which constitutes a first lien on such income), the facts alleged do not show that either as resident citizens, taxpayers, or users of electricity, plaintiffs and interveners have suffered or will suffer any injury or damage, much less a pecuniary loss or damage peculiar to them, and different from that which may be suffered by other citizens of Baird. * * *'

In Hoff v. Westhoff, Tex.Civ.App., 102 S.W.2d 293, writ ref., suit was brought by the plaintiff as a voter and taxpaying citizen of the city of Yorktown to contest an election under which revenue bonds were to be issued for constructing and installing an electric light and power system for the city. This Court held that the plaintiff had no justiciable interest, citing City of San Antonio v. Stumburg, supra.

In Estes v. City of Granbury, 314 S.W.2d...