West Tex. Utilities Co. v. City of Mason

• Decision Date: 12 April 1950
• Docket Number: No. 9870,9870
• Parties: WEST TEXAS UTILITIES CO. v. CITY OF MASON.
• Court: Texas Court of Appeals

Page 404

229 S.W.2d 404

WEST TEXAS UTILITIES CO. v. CITY OF MASON.

No. 9870.

Court of Civil Appeals of Texas, Austin.

April 12, 1950.

Rehearing Denied May 3, 1950.

Scott Snodgrass, of San Angelo, Roscoe Runge, of Mason, E. L. Harwell (of Wagstaff, Harwell, Wagstaff & Alvis), of Abilene, Everett Looney (of Looney, Clark & Moorhead), of Austin, for appellant.

R. E. Lee, of Mason, for appellee.

HUGHES, Justice.

The City of Mason sued the West Texas Utilities Company for a mandatory injunction to compel compliance with an ordinance of the City requiring the Company '* * * to remove all poles, wires, transformers, conduits, and other property used in said public utility business and situated in, upon, under, across or along the public streets and alleys within said town * * *.'

After a non-jury trial judgment was rendered for the City ordering the Company to '* * * remove its poles, wires, conduits, transformers and other properties from the streets and alleys within the incorporate limits of the Incorporated City of Mason * * *.' This judgment has been superseded.

Appellant Company is a Texas corporation engaged in the business of generating, transmitting, distributing and selling electric energy.

In 1925 appellant was granted a franchise by the Commissioners Court of Mason County authorizing it to operate and maintain its lines for conducting electric current and supplying light, heat and power to cities and towns in Mason County, and giving it an easement over and along public county roads and highways, and upon and across streets, alleys, sidewalks and public grounds of unincorporated towns, such franchise to run for a period of 50 years from October 13, 1925. This franchise was accepted and lines were built into Mason by the Company in 1926.

Mason, a city now having about 2,300 inhabitants, was incorporated November 13, 1945.

In 1948 the City of Mason constructed its own electric power system.

On March 8, 1949, the City of Mason passed the ordinance requiring appellant to remove its installations from the alleys and streets within its corporate limits.

The background of this suit is to be found in the decisions of the Supreme Court in the cases of State ex rel. City of Jasper v. Gulf States Utilities Company, 144 Tex. 184, 189 S.W.2d 693; Incorporated Town of Hempstead v. Gulf States Utilities Company, 146 Tex. 250, 206 S.W.2d 227.

In those cases it was held that a County Commissioners Court had no authority to grant a utility company a franchise such as that granted appellant by the Commissioners Court of Mason County, and that such a franchise and improvements made and business conducted thereunder could not form a basis for a valid objection to enforcement of an ordinance, similar to the one adopted by the City of Mason, passed by a city or town incorporated subsequent to the grant of such franchise or operations thereunder.

Unless the law of these two cases has been altered or suspended by an Act of the 51st Legislature, then, in the main at least, the judgment of the trial court must be affirmed. The Act in question is H. B. 393, Regular Session 51st Legislature, Acts 1949, c. 228, p. 427. This Act is carried in Vernon's Annotated Civil Statutes as Article 1436a.

We attach no importance to the number or place given by Vernon's to this Act.

On the day following enactment of the ordinance by the City of Mason the Hon. Beauford H. Jester, Governor of Texas, submitted a special emergency message ¹ to the Legislature of Texas, then in session, in which he called attention to the situation created by the decisions of the Supreme Court in the Hempstead and Jasper cases and stated that, 'I believe it is important that we solve this pressing problem as soon as possible in order that those engaged in the task of making electric service available to all the rural homes in this state may be able to legally operate such existing lines, * * *.'

The result of this message was the passage of H. B. 393, the vote in the House of Representatives being 114 for and 3 against, and the Senate voting 27 for and 1 against. That the House and Senate concurred in the reasons assigned by the Governor as necessitating the legislation is shown by the following statement from the emergency clause of the Act: 'The fact that since the beginning of the electric power and light business in this State the distribution of electric energy to areas outside of the limits of incorporated cities has been based on the legal concept that the Commissioners Courts of this State had the authority to grant franchises for the use of the roads and highways; and the further fact that the Supreme Court has held that Commissioners Courts have no such authority; * * *.' Section 4.

The body of the Act is divided into two sections. The first section deals with power corporations generally and the second section (1a) deals with municipal corporations which are in the power business. Our concern is with Section 1 only.

Appellant's principal contention on this appeal is that, under Section 1 of H. B. 393, it had and has the right to maintain its present installations along, across and upon the streets and alleys of the City of Mason without consent of the City until the expiration of ten years from November 13, 1945, the date on which Mason was incorporated.

This contention is based upon the following provision of Section 1 of the Act: '* * * In the event a State highway or county road on which lines have been built passes through or into an unincorporated city or town, which thereafter becomes an incorporated city or town, the corporation owning such lines shall continue to have the right to build, maintain and operate its lines along, across, upon and over the roads and streets within the corporate limits of such city or town for a period of ten (10) years from and after the date of such incorporation, but thereafter only with the consent of the governing body of such city or town, * * *.'

Appellee, citing 9 Tex.Jur., p. 540, and Cooley on Constitutional Limitations, 7th Ed., p. 529, for the rule of statutory construction that a statute should have a prospective operation only, unless its terms show clearly a legislative intention that it should operate retrospectively, resists the interpretation placed upon this statute by appellant. The words, 'which thereafter becomes an incorporated city or town,' are seized upon and construed by appellee...