Southwestern Gas and Electric Company v. CITY OF GILMER, TEXAS, 15381.
| Decision Date | 29 September 1955 |
| Docket Number | No. 15381.,15381. |
| Citation | 224 F.2d 794 |
| Parties | SOUTHWESTERN GAS AND ELECTRIC COMPANY, Appellant, v. The CITY OF GILMER, TEXAS, et al., Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Richard L. Arnold, Texarkana, Ark., George Prendergast, Marshall, Tex., for appellant.
William A. Brown, Austin, Tex., Edwin M. Fulton, Gilmer, Tex., Dan Moody, Austin, Tex., Fulton, Hancock & McClain, Gilmer, Tex., Powell, Wirtz, Rauhut & McGinnis, Austin, Tex., for appellees.
Before HUTCHESON, Chief Judge, and RIVES and TUTTLE, Circuit Judges.
Appellant, plaintiff below, is a public utility engaged in the distribution and sale of electric power in the City of Gilmer, where it enjoys a thirty year franchise granted by the City, and in other places in the State.
The appellees, defendants below, are the City of Gilmer, Texas, and the Up-shur Rural Electric Cooperative Corporation.
Alleging: that Art. 1528b of the Revised Civil Statutes of Texas, Vernon's Ann.Civ.St., the Electric Cooperative Corporation Act, expressly limits cooperatives to serving their members, and membership in such corporations, to persons in rural areas who are not receiving central station service; and that the defendant Upshur was illegally undertaking to sell and selling electric service to persons living in the City of Gilmer under a purported but invalid franchise from said city, plaintiff sought a preliminary and final injunction against Upshur from continuing said service, and a decree against both defendants declaring the purported franchise null and void.
The defendant Upshur filed a motion to dismiss on the ground that at the best for plaintiff all that is alleged or shown is that defendant is undertaking to act beyond its charter powers and plaintiff cannot complain of or enjoin the acts of the defendant even if they are ultra vires, for it is the settled law of Texas that whether or not a corporation has acted beyond its power can be raised only by one interested in the corporation or in a direct proceeding brought by the state.
In addition, both the Upshur and the City of Gilmer moved to dismiss on the ground that the complaint failed to state a cause of action upon which relief could be granted.
Thereafter plaintiff's application for preliminary injunction and the defendants' respective motions to dismiss coming on for hearing on evidence and argument, the court announced and filed an opinion, with which we...
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Withlacoochee River Elec. Co-op., Inc. v. Tampa Elec. Co.
...identical factual situation arose in the case of Southwestern Gas & Electric Co. v. City of Gilmer, D.C.Tex. 1954, 123 F.Supp. 11, and in 224 F.2d 794 the Fifth Circuit affirmed the District Court. It is only from the District Court's opinion that the facts are discernible. In that case an ......
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...authorized by law. Art. IV, sec. 22, Vernon's Ann.St. Southwestern Gas & Electric Co. v. City of Gilmer, D.C., 123 F.Sup. 11, affirmed 5 Cir., 224 F.2d 794; State v. Dyer, There is no question but that a building and loan association is a private corporation. Frank Co. v. Latham, 145 Tex. 3......
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Public Utilities Bd. of City of Brownsville v. Central Power & Light Co.
...cites in support of its argument is Southwestern Gas & Electric Co. v. City of Gilmer, Tex., 123 F.Supp. 11 (E.D.Tex.1954), Aff'd 224 F.2d 794 (5th Cir. 1955). In Gilmer, the Court held that a utility serving the city of Gilmer, Texas, did not have a justiciable interest sufficient to bring......
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Southwestern Public Service Co. v. Public Utility Commission
...Amarillo 1963, writ ref'd n. r. e.); Southwestern Gas and Electric Co. v. City of Gilmer, 123 F.Supp. 11 (E.D.Tex.1954), aff'd 224 F.2d 794 (1955). The point of error is We earlier referred to the position of the City of Lubbock, before the Commission and subsequently before the district co......