Ennis Waterworks v. City of Ennis , 136 S.W. 513 ( 1911 )

The pivotal question for decision is whether or not the franchise purporting to grant A. M. Morrison the rights and privileges stated therein exclusively tended to the creation of an unlawful monopoly in violation of article 1, § 26, of the Constitution of Texas, prohibiting monopolies and perpetuities. The lower court evidently based its judgment on the decision of our Supreme Court in the case of Brenham v. Water Co.,67 Tex. 543, 4 S.W. 143. The appellant virtually admits that if the Brenham Case is applicable, and is followed, it settles this case, but it contends that the facts in this case are different from those in the Brenham Case, and the conclusion reached in the Brenham Case is in conflict with the great weight of authority. The contracts in this and in the Brenham Case are very similar; in fact, some of the provisions in each are practically identical. At the time the Brenham contract was entered into the city of Brenham owned no water supply, no water mains, and it seems to have been without any public water accommodations whatever. When the city of Ennis entered into the contract in controversy, it owned a water supply, but owned no distributing plant, except about 8,000 feet of water main. Morrison, one of its citizens, owned a distributing plant with which, through the city mains, its lakes, the source of water supply, were connected, and through this joint system the city and its inhabitants were supplied with water. The difference in the conditions existing when the two contracts were entered into do not appear to us to affect the principle enunciated in the Brenham Case. In neither case was the source of supply of water to be obtained confined to any particular stream or lake. While the Ennis Waterworks was authorized to use the lakes owned by the city of Ennis, yet there is nothing in the contract that confined it to those lakes for the supply. The difference between the two contracts is immaterial, and, so believing, the law enjoins us to follow our own Supreme Court, and, should it be conceded that the weight of authority is against the conclusions of the Brenham Case, we feel bound to adhere to it, as the law of this case. Said decision has been approved at various times since its rendition by our Supreme Court, and we are not inclined to hold a contrary view. Altgelt v. San Antonio, 81 Tex. 448, 17 S.W. 75, 13 L.R.A. 383; City of Austin v. Nalle, 85 Tex. 520, 22 S.W. 668, 960; Edwards County v. Jennings, 89 Tex. 618, 35 S.W. 1053; Insurance Co. v. Houston,102 Tex. 817, 116 S.W. 36.

Appellant's third assignment of error is: "The city of Ennis having repudiated the contract and franchise ordinance sought to be avoided, and the court, at its instance, having adjudged such ordinance and contract void, the court erred in awarding the city the possession and use of a portion of the plant of defendant, Ennis Waterworks, as was done by the decree appealed from, and in assuming to make its own, and a part of its decree, a temporary agreement which, to meet an emergency, was found to exist between plaintiff and defendant, Ennis Waterworks." The judgment of the court, after awarding forfeiture of the franchise, and after directing the discontinuance by appellant of its alleged franchise rights, provided: "That in view of the fact that an urgent public necessity exists for the city of Ennis and its inhabitants to have a reasonable supply of water, in order to use the same for domestic and other uses, and for preventing and extinguishing fires, to maintain sanitary conditions, prevent public injury, the enforcement of this decree and the issuance of process hereunder is stayed for a period of six months from this date. At the expiration of four months from this date, the defendants are directed (unless meantime this judgment should be superseded, through process of an appeal taken, or a writ of error sued out by the defendants, or either of them) to commence the removal of their property and effects from the property, streets, highways, lanes, and alleys of the city of Ennis according to the directions of this decree, and to complete such removal before the period for the issuance of process hereunder. But, in case by appeal or writ of error the final execution of this judgment be suspended for a period of more than six months from this date, then upon the termination of such proceedings of appeal, or writ of error, the aforesaid stay shall become inoperative, and this decree be forthwith executed by the defendants, or the enforcement thereof proceeded with by the court under appropriate process. During the time of suspension of process under this decree as above provided, the present temporary possession and use by the city of Ennis of that portion of the water supply system ot the defendant corporation now in use by the city and necessary to supply the public with water and to prevent fires may continue upon condition that the city of Ennis pay to defendant, Ennis Waterworks, monthly, or into the registry of this court for its use, the reasonable value of the use of same, to wit, the sum of $125, and that during such use said defendant corporation may continue to use, without cost to it for rental value, the 8,000 feet of water mains belonging to said city of Ennis, and take water from said city lakes free of charge. Such temporary arrangement shall in no case continue longer than the time required to build the water supply system being constructed by the city of Ennis to a condition deemed adequate by it not to exceed the suspension period above named. It may be terminated earlier by order of the court on application of either party for good cause shown, if before the completion of the city system of water supply there be gathered in the city lakes an adequate supply of water. This court reserves the right to modify this paragraph of this decree at such times and upon imposition of such terms as equity may require."

While the court adjudged the contract void, it nevertheless had the power, in view of the public necessity existing, to suspend its judgment until other arrangements could be perfected for the supply of water. The judgment does not seem to be inequitable to the appellant, and we think there was no error therein. Water Co. v. Mobile, 112 Ala. 260, 20 So. 742, 33 L.R.A. 59, 57 Am. St. Rep. 28; Weatherly v. Water Co., 115 Ala. 156,22 So. 140; Electric Co. v. Snoqualmie Falls Co., 40 Wash. 380, 82 P. 713, 1 L.R.A. (N. S.) 1032.

The judgment is affirmed