Wiggins v. City of Texarkana, Tex., 6565

• Decision Date: 15 March 1951
• Docket Number: No. 6565,6565
• Parties: WIGGINS et al. v. CITY OF TEXARKANA, TEXAS.
• Court: Texas Court of Appeals

Page 212

239 S.W.2d 212

WIGGINS et al. v. CITY OF TEXARKANA, TEXAS.

No. 6565.

Court of Civil Appeals of Texas, Texarkana.

March 15, 1951.

Rehearing Denied April 26, 1951.

Second Motion for Rehearing Denied May 24, 1951.

Brown & Brown, Texarkana, Texas, for appellants.

Norman C. Russell, John D. Raffaelli, Texarkana, Texas, for appellee.

WILLIAM, Justice.

Appellee, The City of Texarkana, Texas, owner and operator of the only water and sewer system that serves the residents of above city and adjacent areas, enacted an ordinance effective as of August 20, 1950, under which appellee established new and additional rates and charges for water, sewer and other services furnished its customers. Appellee, an incorporated municipality, operated at all times herein mentioned under a special legislative charter granted in 1907, and also under the Home Rule provisions of Title 28 R.C.S. of Texas, Vernon's Ann.Civ.St. art. 961 et seq.

Above ordinance prescribes that 'all water furnished to consumers other than industrial and governmental users, without the corporate limits of the City of Texarkana shall be furnished at a rate of 1 1/2 times the rates applying within the city limits.' Above ordinance established for the first time a schedule of charges and fees to be paid by residents within the city limits of Texarkana, Texas, for sewer services furnished by appellee, and then prescribes that 'all sewer services furnished to customers without the corporate limits of the City of Texarkana, Texas, shall be furnished at a rate double the rate applying within the city limits.'

Sec. 6 of above ordinance requires the payment of a tapping charge for all new services to the system within the city limits as follows:

'Size of Connection 5/8

Paved Street $15.00

Unpaved Street $10.00

'The tapping charge shall include up to fifty (50) feet of 3/4 inch extension of service, said extension service in no event to extend beyond the property line.'

And the next paragraph of Sec. 6 stipulates:

'There shall be charged by the said water and sewer systems a tapping charge for all connections to the water system outside the city limits for residential use covering a 5/8th inch connection and including not more than ten (10) feet of extension of service the sum of $50.00.'

Appellants, J. A. Wiggins and numerous others not necessary to name, for themselves and for all other patrons of the water and sewer system similarly situated, all of whom are resident citizens of a certain area adjacent to but outside the corporate limits of the City of Texarkana, Texas, assert that above detailed provisions of the ordinance are against them as a class, discriminatory, excessive, unreasonable and unlawful and prayed for injunctive relief to restrain appellee from exacting from appellants the alleged discriminatory rates and fees above set out, and for a declaratory judgment fixing and determining their rights.

The judgment recites that the court heard sufficient evidence to determine the case on its merits; that the provisions of the ordinance above set out was valid; denied any injunctive relief; and decreed that plaintiffs take nothing by their suit.

The center of 29th street is the north boundary line of appellee's corporate limits. Appellants are resident citizens of an area between the north boundary line of appellee's corporate limit and 36th Street. This area in which appellants reside is now within the corporate limits of North Texarkana, Texas, which was incorporated in July, 1941, under the General Laws of Texas. The streets which run north and south in both cities are similarly named. The east-west streets are consecutively numbered, beginning with 1st Street in the business section of appellee to 36th Street in North Texarkana.

For a period of more than forty years prior to August, 1948, the American Water Works, a utility corporation, owned and operated under a franchise granted by appellee, the water and sewer system that served the City of Texarkana, Texas; the City of Texarkana, Arkansas; the area now occupied by appellants; and adjacent areas. During this period the system was enlarged from time to time by the construction of new lines or extension of old lines.

During above-mentioned period of time, appellants or their predecessors in title constructed at their own expense water mains and sewerage lines in this area above described. Under an agreement with the American Water Works, Inc., such lines were constructed from time to time and tied in and connected with the service lines in operation within the corporate limits of appellee. In the latter part of this period a large sewer line which now serves a certain area in North Heights, Arkansas, and which line crossed the area within North Texarkana and connects with other sewer lines was constructed by some of the appellants at their own expense under an agreement with the American Water Works.

In August, 1948, appellee purchased from the American Water Works, Inc., all its properties then serving the City of Texarkana and surrounding territory. The properties were purchased with proceeds derived from the sale of revenue bonds previously authorized by the vote of the citizens of Texarkana, Texas, under the provisions of Title 28, R.C.S. of Texas. Under an ordinance enacted by appellee on July 27, 1948, passed in connection with the issuance of the revenue bonds and purchase of the system the rates and fees for service theretofore charged by the American Water Works were to continue and did remain the same until the enactment of the ordinance here attacked.

Art. 1108, R.C.S. of Texas, as amended by the Acts of the 45th Legislature, Vernon's Ann.Civ.St. art. 1108, reads: 'Public Utilities

'Any town or city in this State which has or may be chartered or organized under the general laws of Texas, or by special Act or charter, and which owns or operates waterworks, sewers, gas or electric lights, shall have the power and right:

'1. To own land for such purposes within or without the limits of such town or city.

'2. To purchase, construct and operate water, sewer and gas and electric light systems inside or outside of such towns or city limits, and regulate and control same in a manner to protect the interests of such town or city.

'3. To extend the lines of such systems outside of the limits of such towns or cities and to sell water, sewer, gas, and electric light and power privileges or service to any person or corporation outside of the limits of such towns or cities, or permit them to connect therewith under contract with such town or city under such terms and...