Southwestern Tel. & Tel. Co. v. City of Dallas
| Decision Date | 28 June 1910 |
| Parties | SOUTHWESTERN TELEGRAPH & TELEPHONE CO. v. CITY OF DALLAS.<SMALL><SUP>†</SUP></SMALL> |
| Court | Texas Court of Appeals |
Appeal from District Court, Dallas County; Kenneth Foree, Judge.
Action by the Southwestern Telegraph & Telephone Company against the City of Dallas. Judgment for defendant, and plaintiff appeals. Affirmed.
A. P. Wozencraft and W. S. Bramlett, for appellant. J. J. Collins and John C. Robertson, for appellee.
This suit was brought by the Southwestern Telegraph & Telephone Company against the city of Dallas to enjoin the enforcement of an ordinance passed under article 8 of the city charter, and which is known as the "initiative and referendum provision." The ordinance related to the fixing and collection of rates for telephone service in said city.
The application for the writ of injunction sets out, among other things: That the petitioner is a corporation duly organized and acting under the laws of the state of New York, for the purpose of conducting a general telegraph and telephone business, and has a permit to do such business in the state of Texas, and is so engaged and located in the city of Dallas. That the said city of Dallas, in compliance with the initiative and referendum clause of its charter, upon a proper petition submitted to the voters of the said city on April 5th, A. D. 1910, the following ordinance, namely:
That said ordinance was adopted and passed by the voters of the said city and duly enrolled as a legal enactment under the orders and directions of the board of commissioners of the city of Dallas, and that they are now threatening to, and will, enforce the terms and provisions of the same, unless enjoined and restrained from so doing. The petition alleges that the said ordinance and its different sections are void and unenforceable for various reasons, among them: That the city charter of the city of Dallas specially provides that such rates shall only be fixed by the board of commissioners, and not upon a referendum vote; that many subscribers to the said telephone exchange live outside of the corporate limits, and the said board of commissioners has, as to them, no power to fix such rate; that the provisions of a referendum vote by the citizens of Dallas to fix such rates is unconstitutional and void; that the provision of said ordinance requiring telephone service to be given on an extension of credit for one month is unconstitutional and void; that petitioners did not have a fair notice and hearing before the said rates were so fixed; and that the discount of 10 per cent. would unjustly deprive the petitioners of their property and property rights, and so reduce their earnings that they would not be able to make a fair profit upon their said investment. The defendants replied by a general exception and special exception in each of the grounds set out, and particularly to the sufficiency of the allegations setting up the several grounds as specified. The court below, upon hearing the said application, overruled the general exception, but sustained all of the special exceptions, and upon hearing the evidence refused to grant the temporary injunction, and this appeal was taken.
It appears from the evidence that the ordinance as set out in the plaintiff's petition was presented to the mayor and board of commissioners of the city of Dallas in conformity with the provisions of section 8 of the Dallas city charter. The petition therefor was signed by the number of qualified voters of the city of Dallas required by said section, and this fact was certified to by the city secretary within the time and in the manner as required by said section of the city charter. The mayor and board of commissioners did not pass the said ordinance, but submitted the same to be voted upon by the qualified electors of the city of Dallas at a general election held in the city of Dallas for the purpose of electing a president and six members of the board of education of the city of Dallas, which election was held on the 5th day of April, 1910. That said ordinance was submitted by said board of commissioners to the qualified electors at said election in the manner and form and in all respects as required by said section 8 of said charter. That a majority of the qualified electors voting at said election voted for the passage of the said ordinance. That the board of commissioners canvassed the returns of said election, and duly declared that a majority of the qualified voters voting at said election had voted in favor of said ordinance. That the mayor and board of commissioners thereafter ordered the said ordinance to be enrolled as an ordinance of the city of Dallas, adopted by a vote of said qualified voters in accordance with the provisions of section 8 of said city charter, at said election. That the plaintiff, the South-western Telegraph & Telephone Company, has, from time to time, accepted various ordinances of the city of Dallas, authorizing it to build and construct and maintain underground conduits for the purpose of carrying on its telephone business within the city of Dallas, and to erect its poles and string its wires for such purpose along the streets of the city of Dallas, and that amongst other provisions contained in said ordinances is the provision that the said ordinances granting the said franchise rights and privileges to the said company shall be subject to the existing charter and ordinances of the city of Dallas, and such future charters and ordinances as may be thereafter passed. That the rights, privileges, and franchises granted by the said ordinances to the said plaintiff were in each and every instance granted and accepted by the said plaintiff since the adoption of the Constitution of the state of Texas, known as the Constitution of 1876. It also appears that the telephone company has in all about 15,000 subscribers, 400 of whom are located outside of the city of Dallas.
Of the 28 assignments of error we notice the following as practically covering all matters complained of:
The eighth assignment complains that the court erred in sustaining the defendant's fifth special exception "for that under the charter of the city of Dallas the power to regulate and fix the rate of service of local telephone or local telephone exchange doing business in the city of Dallas is specially conferred upon and vested in the board of commissioners of the city of Dallas, and such power to so regulate the rates and service of such telephone or telephone exchange is not otherwise conferred or vested by such charter." Supporting this we find (article 8, § 7, p. 26, of said charter) the following: "The right is hereby delegated to the city of Dallas acting through its board of commissioners to determine, fix and regulate the charges, fares or rate of any person, firm or corporation, enjoying or that may enjoy a franchise or exercising any public privilege in said city and to prescribe the kind of service to be furnished by such person, firm or corporation," etc. But we also find, in section 1, art. 8, of the said city charter, that: "Any proposed ordinance may be...
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