Texarkana Gas & Electric Co. v. City of Texarkana

• Decision Date: 02 December 1909
• Citation: 123 S.W. 213
• Parties: TEXARKANA GAS & ELECTRIC CO. v. CITY OF TEXARKANA.
• Court: Texas Court of Appeals

123 S.W. 213

TEXARKANA GAS & ELECTRIC CO. v. CITY OF TEXARKANA.

Court of Civil Appeals of Texas.

December 2, 1909.

Appeal from Bowie County Court; Joe Hughes, Judge.

Action by the City of Texarkana against the Texarkana Gas & Electric Company. From a judgment for plaintiff, defendant appeals. Reversed and rendered.

Glass, Estes, King & Burford, for appellant. F. M. Ball and R. P. Dorough, for appellee.

HODGES, J.

The appellant is a private corporation, is now and has been for many years engaged in the business of operating an electric street car system and an electric light plant in the city of Texarkana, Tex., for the purpose of furnishing to the residents of said city street car service and electric lights. In carrying on its business it has erected and uses poles and wires placed and strung in the manner usually adopted in such cases. In the early part of 1907, the city of Texarkana procured from the Legislature a special charter. Prior to that time and since 1874 it had existed as a municipality incorporated under the general laws of the state. On February 10, 1908, the city adopted an ordinance entitled, "An ordinance to regulate the placing of poles and stringing of wires thereon along, over and through the streets and alleys and other public highways of the city of Texarkana, Texas; providing for a license and a license fee upon every such pole, and providing for the collection of the same." It is then ordained, first, "That any such person, firm, corporation or association owning, operating or conducting any of the following public service, business or engagements to or with the general public or offering to do so for hire within the corporate limits of the said city or partially within and partially without the corporate limits of the said city, viz., telegraph business, telephone business, or telegraph and telephone business, or electric light or electric street railway, or either or both, or any other business where electric wires are used and suspended on poles over, along or across any of the public streets, alleys or highways, within the said city, shall be and each is hereby required to pay to the said city for the use and benefit of the street and bridge fund a license fee of fifty (50¢) cents for each and every pole that is or may be owned by any such person, firm, corporation or association and occupying any street, alley or public highway or standing and erected thereon, and upon every said pole an annual license and license fee is here levied and assessed for the year 1908 and for each succeeding year thereafter." Then follow provisions intended as regulations governing the location of the poles upon the streets and alleys, their size and position, distance and height, and other details generally imposed by cities, and which it is not necessary to mention here more fully. The second subdivision is as follows: "That each and every person, firm, corporation or association, using wires and poles in the streets, alleys or highways, as aforesaid, shall annually before the 20th day of February of each year, file with the city council a certificate which shall be duly sworn to, correctly stating the number of poles owned by him or them within the said city and it shall thereupon be the duty of the city council to charge the city tax collector with the sum of money equal to fifty (50¢) cents for each and every one of said poles and a violation of this section shall subject any such person, firm, corporation or association of persons conducting any of the public utilities hereinbefore stated and so violating it to the fine of twenty-five ($25.00) dollars and a penalty of fifteen ($15.00) dollars for each and every day that such violation shall exist. And provided further that any failure by any person, firm, corporation or association to file said sworn statement setting forth the number of poles, or if the city council shall be doubtful of said affidavit correctly stating the number of poles, it may nevertheless have an inventory of the said poles made upon its own behalf and account and such inventories to be made by the city engineer who shall make the sworn report to the city council in writing when requested, and such report of said engineer shall be conclusive as to the facts therein recited, and the entries made upon the books of the tax collector by him and the charges against such tax collector shall be based upon the report of said city engineer when the report shall have been made by him. And each and every person, firm, corporation or association so using wires and poles as aforesaid that are now or may hereafter be placed in and along the said streets or alleys of the said city, shall pay to the city of Texarkana, Texas, to become a part of the street and bridge fund, annually, on or before the 10th day of March of each and every year, as a license and as a license fee, the sum of fifty (50¢) cents for each and every pole so erected, maintained or used on said streets, alleys or highways within the said city by any such person, firm, corporation or association engaged in any of the foregoing mentioned public service and the same shall be paid to the tax collector of the said city by the 10th day of March, of each year, and upon the failure of any such person, firm, corporation or association to make said payment annually on or before the 10th day of March, it shall be and is hereby made the duty of the city attorney to take cognizance of said failure and to proceed at once to the collection of the same and to the enforcement of this ordinance." On the 20th of February, 1908, the general manager of the appellant company, in compliance with the provisions of the foregoing...