Mayor, Etc., of City of Houston v. Houston City St. Ry. Co.

• Decision Date: 01 March 1892
• Parties: MAYOR, ETC., OF CITY OF HOUSTON v. HOUSTON CITY ST. RY. CO.
• Court: Texas Supreme Court

19 S.W. 127

MAYOR, ETC., OF CITY OF HOUSTON v. HOUSTON CITY ST. RY. CO.

Supreme Court of Texas.

March 1, 1892.

Commissioners' decision. Section A. Appeal from district court, Harris county.

Action by the Houston City Street-Railway Company against the mayor, aldermen, and inhabitants of the city of Houston. Judgment for plaintiff. Defendants appeal. Affirmed.

H. F. Ring, for appellants. Jones & Garnett, for appellee.

MARR, J.

"This suit was brought by the Houston City Street-Railway Company to enjoin the city of Houston from interfering with the laying of a street-railway track by appellee on one of the streets of said city. A temporary injunction was issued, which on final hearing was perpetuated by the decree of the court, from which action of the court, in refusing to dissolve the injunction and in perpetuating same, this appeal is taken." Appellants' only assignment of error is as follows: "The court erred in rendering judgment against defendant, and in behalf of the plaintiff, and in failing to render judgment in favor of the defendant, because the charter of the city of Houston never authorized, nor was authority ever conferred by the legislature upon defendant's council, to grant any special franchise or privilege, of any character whatsoever, in the use of the streets of said city of Houston for a term of years; and because the evidence showed that plaintiff had no right to use for street-railway purposes the portion of the street in question after being notified of the passage of the ordinance of date July 28, 1890, repealing the first section of the ordinance of date August 12, 1889, mentioned in plaintiff's petition; and because no grounds whatsoever existed for the equitable interposition of the court. First proposition under the above assignment of error: Authority never having been conferred upon the said council to grant special franchises to private persons, or corporations of any character whatsoever, in the use of the streets of said city of Houston for a term of years, so much of the ordinance under which the appellee claims a franchise for a term of years was void, and subject to amendment or repeal at any time by the city council."

By his second proposition, under the above assignment, the counsel for the appellants contends that the ordinance passed by the city council, and "under which the plaintiff claims a franchise for thirty years, is unreasonably broad and comprehensive, and for this reason is void, even if the city council had authority from the legislature to grant special privileges in the streets to corporations for a term of years, and therefore any subsequent city council had authority to repeal such privilege at any time." This proposition is scarcely embraced by the assignment of error, but we will notice the questions in their order.

It appears that the city council, by an ordinance passed July 28, 1890, attempted to repeal or annul the franchise or privilege of the plaintiff, in so far as it had been previously authorized to construct its road "on Congress and Louisiana streets, between Travis street and a connection with its Glenwood line on Fifth street;" and that while plaintiff was proceeding to make, and was in the act of making, such "connection," (as above described,) by the construction of the necessary line of railway, etc., the city officials, in virtue of said repealing ordinance, immediately upon its passage, notified plaintiff thereof, interfered with the further prosecution of said work, and forcibly prevented the plaintiff from building and completing said line of railway upon said streets, and from making said connection with its other lines. The acts of the city council and the city officers are made the basis of the suit for injunction. We may remark, in this connection, that the question of the right of the plaintiff to an injunction is not properly presented in this case. The defendants filed only a general demurrer to the petition, and the record fails to show that it was called to the attention of the court below. It was not acted upon by the court, and should therefore be deemed to have been waived. It is unnecessary, under such circumstances, to enumerate the allegations of the petition upon which the plaintiff relied for equitable relief. We may, however, say, generally, that the facts alleged would indicate that the plaintiff might suffer irreparable injury, unless the defendants should be duly restrained by the process of the court. Port of Mobile v. Railroad Co., (Ala.) 4 South. Rep. 106.

The original grant of the franchise to the plaintiff by the city of Houston was, by an ordinance of its common council, passed on the 5th day of November, 1883. The provisions of this enactment, so far as need be quoted, are as follows: "First. That the right of way is hereby granted to the Houston Street-Railway Company, organized under a charter passed by the legislature of the state of Texas on the sixth (6th) day of August, 1870, with the privilege of laying, using, maintaining, and operating a single or double track street railway, and all necessary side tracks, turn-outs, turn-tables, and switches, for the purposes and uses for which this grant is made, through and over any and all streets of the city of Houston, and the bridges thereon, including the bridges crossing Buffalo and White Oak bayous, which may be owned by the city of Houston, excepting that portion of Main street south and west of Capitol street, and that portion of Franklin street east of San Jacinto street, which portions of said streets are hereby reserved from this grant." The sixth section of said ordinance is as follows: "That the using of any of the streets of Houston by said street-railway company, after the passage of this ordinance, for any of the uses and purposes specified in this ordinance, shall be deemed an acceptance of the grant herein made, and an acceptance of the terms and conditions herein imposed upon it, which said grant is to be used and enjoyed by said company; that said railway company shall avail itself of this grant of right of way within two years from the passage of this ordinance." Section seventh of said ordinance is as follows: "Seventh. That said street-railway company, complying faithfully with the terms and conditions imposed by this ordinance, and the provisions of the charter of the city of Houston, as required by the city council, shall have and enjoy the right, powers, and privileges herein granted and conferred for a term of thirty years from and after passage of this ordinance."

It is agreed and admitted by the parties that the plaintiff accepted the franchise granted by the city within due time, and has fully complied with all of the terms and conditions of the grant; that it has, in accordance with the rights and privileges granted, "constructed, equipped, and put in operation on the streets of said city fully fourteen miles of its street railway, and in accomplishing this result has expended over seventy-five thousand dollars," etc. These things were all done by the plaintiff prior to January 1, 1888.

It may be observed at this point of the investigation that the franchise or privilege granted to the plaintiff by the city of Houston, though it extends to nearly all of the streets of that city, is not of an exclusive character. The city, by the terms of the grant, is not prohibited from extending similar privileges to other railway companies. This view of a similar grant was directly announced by the supreme court in the case of Gulf City St. Ry. Co. v. Galveston City Ry. Co., 65 Tex. 502; and it was further held that, subject to the right of the railway company to an easement in the streets to the extent in which the streets were occupied for that purpose by its "tracks, switches, and turn-outs," the city's "dominion over the streets remained unchanged and unimpaired, and was as full and complete, for all purposes," as it was before the extension of the grant. Such, at least, is the effect of the decision there made, and it coincides with our own views of the question. The grant to the plaintiff, as extended by the city of Houston, is not, therefore, void, upon the ground that it confers an exclusive privilege, as it would have been under the constitution if it had in fact created a monopoly in favor of the plaintiff. City of Brenham v. Water Co., 67 Tex. 542, 4 S. W. Rep. 143.

Upon the 12th day of August, 1889, the city council (for some reason which is not very apparent to us) passed an additional ordinance, which gave its permission to the plaintiff "to build and operate its street railway" upon a number of the streets of the city, including the right upon the part of the plaintiff to establish the "connection with its Glenwood line on Fifth street," as before described. This ordinance did not specify the character of the privilege granted, but it was enacted "subject to the terms and conditions of the original ordinance of November 5, 1883," etc. It was this ordinance of August, 1889, which the city council attempted to repeal, as before stated, in July, 1890. This the appellants claim the city had the lawful right to do, because the ordinance of 1889 did not extend the privilege for any definite length of time. We think that this position is of no consequence, as affecting the merits of the controversy if the right of the appellee to the exercise of its franchise had become vested and irrevocable before the expiration of the term, by reason of the original contract between the parties made or created in pursuance of the ordinance of November 5, 1883.

Whether the privileges originally granted to the plaintiff had become perfect or vested rights, which the city could neither impair nor take away, must, of course, depend, in the first place, upon the validity of the original ordinance of November 5, 1883. It is claimed by the appellee that the city council possessed adequate authority to enact this ordinance, not only under...