Southwestern Bell Tel. Co. v. City of Kountze
| Decision Date | 14 October 1976 |
| Docket Number | No. 7842,7842 |
| Citation | 543 S.W.2d 871 |
| Parties | SOUTHWESTERN BELL TELEPHONE COMPANY, Appellant, v. The CITY OF KOUNTZE, Appellee. |
| Court | Texas Court of Appeals |
James H. Chesnutt, II, Beaumont, Darrell L. Barger, Houston, for appellant.
J. A. McGaffey, Kountze, for appellee.
Defendant below appeals from orders which overruled its plea of privilege to be sued in Dallas County and granted plaintiff a temporary injunction restraining defendant from closing its business office in the City of Kountze. We will speak of the parties as they appeared in the trial court.
Plaintiff alleged that the defendant was a private corporation and a public utility engaged in the conveyance, transmission or reception of communications over a telephone system in the City of Kountze and maintained a business office therein where the patrons could conduct transactions with defendant's employees and agents. Further allegations were made to the effect that the defendant was about to close such business office to the great injury and harm to the plaintiff city, its citizens, and to the patrons of defendant company residing within the plaintiff city. Originally, plaintiff sought only an injunction to restrain the closing of the office; but, in amended pleadings, it sought a declaratory judgment defining the rights, duties, and obligations of the parties.
As noted earlier, the trial court overruled defendant's plea of privilege and entered an order enjoining defendant from closing its business office pending a hearing on the merits of the case. Defendant duly perfected appeals from such interlocutory orders. Neither party sought to advance the submission of this cause and it was reached in the ordinary sequence of cases upon the docket of this court.
Upon oral submission of this cause, the court, Sua sponte, raised the question of jurisdiction of the court to dispose of the cause since the Public Utility Regulatory Act, now codified as Tex.Rev.Civ .Stat.Ann. art. 1446c (1975--1976 Supp.), 1 hereafter the 'Act', had become fully effective. 2 We requested supplemental briefs from the parties and such have been filed.
Although there were no pleadings challenging the jurisdiction of either the trial court or this court and the matter was not raised directly by the parties, we must first determine our jurisdiction over the controversy. As was said in Able v. Bloomfield, 6 Tex. 263, 264 (1851), 'Want of jurisdiction of the subject matter of the suit, will arrest a cause at any stage of the proceedings.' See also, City of Beaumont v. West, 484 S.W.2d 789, 791 (Tex.Civ.App.-Beaumont 1972, writ ref'd n.r.e.).
As we said in Beaumont v. West, supra:
Being of the opinion that the new legislation has mooted the controversy and that neither the trial court nor this court has jurisdiction to determine the questions presented, we reverse the judgment of the trial court and dismiss the cause for the reasons now to be stated.
Using the broadest possible language, the Legislature conferred exclusive original jurisdiction upon the Public Utilities Commission (hereinafter 'Commission') over the business and property of all telecommunications utilities for the purpose of regulating 'rates, operations, and services.' 3 Obviously, a business office of a telephone company is within the definition of 'facilities' found in the Act. 4 We likewise hold that it is equally clear that the closing of a business office falls within the 'service' category as defined in the Act. 5
After carefully analyzing the provisions of the Act quoted earlier, we are led ineluctably to the conclusion that the Act vests in the Commission the exclusive original jurisdiction to determine whether a telephone utility should be permitted to close a business office in a community or should be denied such permission. Since September 1, 1976, the Commission is and has been the Only forum having jurisdiction to determine that question. If plaintiff below, or any other interested and affected person desires to complain of the proposed closing of the business office by defendant, complaint must be made to the Commission. 6
We recognize the general rule that 'once jurisdiction is lawfully and properly acquired, no subsequent fact or event in the particular case serves to defeat the jurisdiction.' Haginas v. Malbis Memorial Foundation, 163 Tex. 274, 354 S.W.2d 368, 371 (1962). We are also familiar with the rule enunciated in Western Alliance Insurance Company v. Tubbs, 400 S.W.2d 850, 852 (Tex.Civ.App.--Waco 1965, writ ref'd n.r.e.), where the court said:
But the Act needs no construction. It is readily apparent that the Legislature has made a comprehensive statute applicable to the entire field of legislative regulation of public utilities replacing the earlier antiquated and greatly criticized pattern of regulation theretofore in effect. In essence, the Act repealed the law giving jurisdiction to the district court and it contained no savings clause; thus, it takes away the right to proceed in a pending case undetermined at the time when it becomes effective. See and compare, Texas Farm Bureau Cotton Ass'n v. Lennox, 296 S.W. 325, 327 (Tex.Civ.App.--Texarkana 1927, no writ). See also, National Carloading Corp. v. Phoenix-El Paso Express, 142 Tex. 141, 176 S.W.2d 564, 568 (1943); Aetna Ins. Co. v. Richardelle, 528 S.W.2d 280, 284 (Tex.Civ.App.--Corpus Christi 1975, writ ref'd n.r.e.); McGovern v. American Airlines, Inc., 537 S.W.2d 341, 344 (Tex.Civ.App.--Beaumont 1976, writ ref'd n.r.e.).
Plaintiff city's sole claim to authority to regulate the acts and conduct of defendant within its corporate limits was contained in Tex.Rev.Civ.Stat.Ann. art. 1119 (1963) prior to its repeal. 7 But, the Act does not destroy the rights of plaintiff; it simply takes away from the district court the jurisdiction to adjudicate the question and confers the exclusive jurisdiction upon another tribunal, namely, the regulatory commission. See in this connection the remarks of Mr. Justice Holmes in Gallardo v. Santini Fertilizer Co., 275 U.S. 62, 48 S.Ct. 24, 72 L.Ed. 157 (1927). Indeed, the law enunciated in National Carloading Corp., supra, compels a reversal of the judgments and orders entered in the trial court and a dismissal of the cause.
However, plaintiff's counsel argues that since the District Court had original and primary jurisdiction over the controversy at the time of the institution of the suit and the entry of the two interlocutory orders involved herein, the Legislature was prohibited from 'eliminating existing causes of action', citing Constitution of Texas, art. I, Sec. 13. We disagree.
It is appropriate to note, at this point, two rules which are applicable to the question now under consideration:
1. 'The repeal of a statute leaves unaffected all rights in the nature of contract which have Vested under the original statute.' Collins v. Warren, 63 Tex. 311, 314 (1885); Commercial Insurance Co. of Newark, N.J. v. Lane, 480 S.W.2d 781, 783 (Tex.Civ.App.--Dallas 1972, writ ref'd n.r.e.).
2. '(A) litigant has no Vested right in a remedy, and that remedial statutes are valid and control the litigation from the date they become a law, and all proceedings taken thereafter must be under the new law.' Phil H. Pierce Co. v. Watkins, 114 Tex. 153, 263 S.W. 905, 907 (1924).
Indeed, in Exxon Corporation v. Brecheen, 526 S.W.2d 519, 525 (Tex .1975), the Supreme Court agreed with the holdings of the Court of Civil Appeals saying that the statute then under consideration was 'procedural and remedial in nature, and is constitutional; that the statute governs the proceedings in litigation pending on its effective date; . . .' 8
Plaintiff's argument that the Act is a retroactive statute is likewise without merit. The general rule is that a statute is retroactive only when it takes away or impairs vested rights acquired under existing laws. Turbeville v. Gowdy, 272 S.W. 559, 561 (Tex.Civ.App.--Fort Worth 1925, no writ); Bryant v. State, 457 S.W.2d 72, 78 (Tex.Civ.App.--Eastland 1970, writ ref'd n.r.e.); Inman v. Railroad Commission, 478 S.W.2d 124, 129 (Tex.Civ.App.--Austin 1972, writ ref'd n.r.e.).
No rights vested under the delegation of regulatory power under Art. 1119. It is well to note that our Supreme Court held in Kousal v. Texas Power & Light Co., 142 Tex. 451, 179 S.W.2d 283, 285--286 (1944):
See also, Schenker v. City of San Antonio, 369 S.W.2d 626,...
To continue reading
Request your trial
-
Ex parte Johnson
...does not impair vested rights, Exxon Corporation v. Brecheen, 526 S.W.2d 519, 515 (Tex.1975); Southwestern Bell Tel. Co. v. City of Kountze, 543 S.W.2d 871, 875 (Tex.Civ.App.--Beaumont 1976), it is observed that unless otherwise provided such procedural or remedial applies to both pending a......
-
Butnaru v. Ford Motor Co.
...560 (1916); Blonstein v. Blonstein, 831 S.W.2d 468, 472 (Tex.App.-Houston [14th Dist.] 1992, writ denied); Southwestern Bell Tel. Co. v. City of Kountze, 543 S.W.2d 871, 874-75 (Tex.Civ.App.-Beaumont 1976, no 2. Exclusive Versus Primary Jurisdiction Furthermore, in David McDavid Nissan, we ......
-
Central Power & Light Co. v. City of San Juan
...possesses no power that is not conferred by its charter or by the general laws under which it was formed. Southwestern Bell Tel. Co. v. City of Kountze, 543 S.W.2d 871, 876 (Tex.Civ.App.--Beaumont 1976, no When a charter is adopted, that instrument becomes the fundamental law of the municip......
-
Morgan v. Plano Indep. Sch. Dist.
...statute to a pending claim, even when doing so will eliminate the availability of any tribunal for the claim. Cf. Sw. Bell Tel. Co. v. City of Kountze, 543 S.W.2d 871, 874–75 (Tex.Civ.App.-Beaumont 1976, no writ) (applying a statute granting an agency exclusive jurisdiction over a claim pen......