Texas Gas Utilities Co. v. City of Uvalde

• Citation: 77 S.W.2d 750
• Decision Date: 03 December 1934
• Docket Number: No. 9667.,9667.
• Parties: TEXAS GAS UTILITIES CO. et al. v. CITY OF UVALDE et al.
• Court: Texas Court of Appeals

77 S.W.2d 750

TEXAS GAS UTILITIES CO. et al. v. CITY OF UVALDE et al.

No. 9667.

Court of Civil Appeals of Texas. San Antonio.

December 3, 1934.

Rehearing Denied December 24, 1934.

Appeal from District Court, Uvalde County; Lee Wallace, Judge.

Suit by the City of Uvalde and others against H. L. Mann, receiver of the Texas Gas Utilities Company. From an order granting plaintiffs temporary injunction, the receiver appeals.

Order reversed, and injunction dissolved.

Eskridge, Groce, Rice & Easterling, and Walter Groce, all of San Antonio, for appellant.

K. K. Woodley, of Sabinal, and D. W. Suttle, of Uvalde, for appellees.

MURRAY, Justice.

This is an appeal by H. L. Mann, receiver of Texas Gas Utilities Company, from an order of the district court of Uvalde county granting a temporary injunction, in vacation, on the application of the city of Uvalde, M. B Walcott, and J. H. Ashby, Jr., at a hearing had on November 12, 1934, enjoining appellant, H. L. Mann, from charging gas rates to domestic consumers in the city of Uvalde in excess of 75 cents per thousand cubic feet gross, less a 10 per cent. discount if bills were timely paid, and from making a minimum charge of more than $1 per month.

The material facts in this case are as follows:

On the 24th day of March, 1928, the city council of the city of Uvalde, a city of more than 2,000 inhabitants, passed an ordinance granting to J. G. Pundt, his successors and assigns, a franchise to construct and operate a gas distribution system in the city of Uvalde. The ordinance fixed the rates as are attempted to be enforced in the temporary injunction herein.

Pundt transferred the franchise to the Texas Gas Utilities Company, a corporation.

On the 23d day of April, 1934, H. L. Mann was appointed receiver of the Texas Gas Utilities Company by an order of the district court of the Sixty-Third judicial district, which district includes Val Verde county.

On August 29, 1934, under direction of the district court of Val Verde county, appellant, Mann, applied to the city of Uvalde for a raise in the rates to be charged for gas used in said city for domestic purposes, which application was refused by the city council of Uvalde on September 6, 1934. No appeal was taken from this action.

On September 26, 1934, appellant, as receiver, applied to the district court of Val Verde county for authority to change the rate for the use of gas in the city of Uvalde on two theories: First, that recent expenditures made it necessary to produce more revenue; and, second, that other cities were being charged a higher rate than was being charged in Uvalde, and this constituted an unjust discrimination. This requst was granted by the district court of Val Verde county, and an order entered authorizing, practically, a doubling of the gas rates in the city of Uvalde.

On October 17, 1934, the city of Uvalde, acting through its council, passed and approved an ordinance ratifying, confirming, and adopting the rate schedule for gas as contained in the original franchise.

On October 30, 1934, the city of Uvalde and other appellees herein filed their petition and secured the temporary injunction herein complained of by appellant.

The first question presented is, Did the district court of Val Verde county acquire exclusive jurisdiction by first taking cognizance of the question of the gas rates in the city of Uvalde, and thereby preclude the district court of Uvalde county from in any manner exercising jurisdiction over the same subject-matter?

As a general rule, where two courts of concurrent jurisdiction have potential jurisdiction of a cause of action, the court which first takes jurisdiction takes exclusive jurisdiction, and thereby precludes the other court from exercising any jurisdiction over the cause. Cleveland v. Ward, 116 Tex. 1, 285 S. W. 1063. But, if the first court has no jurisdiction, and its orders and judgments are absolutely void and of no effect, then they may be collaterally attacked and in fact completely ignored. Maier v. Davis (Tex. Civ. App.) 72 S.W.(2d) 308; 25 Tex. Jur. par. 252, p. 685. The fact that a court has attempted to exercise jurisdiction over a matter of which it has no jurisdiction whatever would of itself not preclude another court from exercising jurisdiction. This brings us to the question as to whether or not the district court of Val Verde county had jurisdiction with reference to raising the gas rates in the city of Uvalde. We conclude that it had no such jurisdiction. In the first place, the fixing of gas rates is the exercise of a legislative power and not a judicial power. In the second place, the Legislature has delegated this power to the city council of cities having a population of more than 2,000 inhabitants, with the right of appeal to the Railroad Commission of the state, for a trial de novo, and with a limited right of resort to any district court of Travis county. Articles 1119, 6058, 6059, R. S. 1925; City of Uvalde v. Uvalde Electric & Ice Co. (Tex. Com. App.) 250 S. W. 140; Community Natural Gas Co. v. Natural Gas & Fuel Co. (Tex. Civ. App.) 34 S.W.(2d) 900; Coleman Gas & Oil Co. v. Santa Anna Gas Co. (Tex. Com. App.) 67 S.W.(2d) 241.

Appellant contends that this is not a "rate" case, but a "discrimination" case, and that therefore article 6057, R. S. 1925, gives the district court of Val Verde county jurisdiction. Article 6057 expressly provides that different rates may be charged in different places, and the fact that appellant had a different rate at La Pryor or Carrizo Springs, or some other city, would not give a district court the legislative power of fixing rates for the city of Uvalde.

Thus we conclude that the order entered by the district court of Val Verde county was a nullity. The district judge of Uvalde county could disregard the facts that the district court of Val Verde county had attempted to exercise jurisdiction with reference to gas rates in Uvalde, in determining whether or not the district court of Uvalde county had jurisdiction.

However, the fact that the district court of Val Verde county did not have jurisdiction does not establish the fact that the district court of Uvalde county did have jurisdiction. While no district court has original jurisdiction to fix gas rates for a city, a court may have jurisdiction to enjoin an unreasonable or other illegal rate. Simkins on Equity, p. 802; City of Los Angeles v. Los Angeles Water Co., 177 U. S. 558, 20 S. Ct. 736, 44 L. Ed. 886; Los Angeles City Water Co. v. City of Los Angeles (C. C.) 103 F. 711; Los Angeles City Water Co. v. City of Los Angeles (C. C.) 88 F. 720, 722.

Therefore, if the district court of Uvalde county had jurisdiction of the parties and subject-matter, it had jurisdiction to issue this injunction. It is conceded that appellant resides in Val Verde county and that the Texas Gas Utilities Company had its principal office there. Under the provisions of subdivision 30 of article 1995, and articles 2311, 2312, 4643, and 4656, R. S. 1925, a suit for injunction against a receiver should be brought in, or made returnable to, the county of a receiver's residence, or in the county where the corporation, for which a receiver has been appointed, had its principal office.

Article 4643 denies the power to a district judge to issue a writ of injunction which is properly returnable to another county, except in certain cases not existing here. Uvalde Rock Asphalt Co. v. Asphalt Belt Ry. Co. (Tex. Com. App.) 262 S. W. 736; Box v. Oliver (Tex. Civ. App.) 43 S.W.(2d) 979.

The next question presented is whether this is essentially an injunction case, or a suit for specific performance of a contract wherein an injunction is incidentally requested. If this be, in fact, a suit for specific performance of a written contract performable in Uvalde county, then, and in that event, the district court of Uvalde county would have jurisdiction and venue under subdivision 5 of article 1995, R. S. 1925. Appellees have alleged a contract in writing, and, unless it appears that there is not, and could not be, such a written contract, then this cause would be ruled by the venue statutes and not by the injunction statutes. 24 Tex. Jur. par. 124, p. 170.

It is clear that the city of Uvalde, under the provisions of article 1119 R. S. 1925, has the legislative power to fix gas rates, and, having this power, it cannot barter it away by entering into a contract for specific rates over a period of years, and this is true whether the contract is attempted to be made for the installment of a system or afterwards. City of Uvalde et al. v. Uvalde Electric & Ice Co. (Tex. Com. App.) 250 S. W. 140; Railroad Commission of California v. Los Angeles Ry. Corp., 280 U. S. 145, 50 S. Ct. 71, 74 L. Ed. 234; Home Tel. Co. v. Los Angeles, 211 U. S. 265, 29 S. Ct. 50, 53 L. Ed. 176; Freeport Water Co. v. Freeport, 180 U. S. 587, 21 S. Ct. 493, 45 L. Ed. 679.

The power to fix rates is absolutely inconsistent with the power to contract for rates, and the city of Uvalde cannot possibly enter into a valid contract for rates, but rates therein must be controlled by the city's rate-fixing power. Therefore this is not a suit for the specific performance of a contract, but essentially an injunction case, which can only be brought in Val Verde county. The district judge of Uvalde county had no authority to issue this injunction....