City of Denton v. Denton Home Ice Co.

ON MOTION FOR REHEARING.

The honorable court erred in holding that the business of manufacturing and selling ice is a public utility. Van Valkenburg v. Ford, 207 S. W., 405; Clint v. Home Ice & Brewery Co., 169 S. W., 411; Williams v. Standard Oil Co., Vol. 49, Supreme Reporter, 115; Union Ice Co. v. Ruston, 135 La., 898; State ex rel. Kansas *196City v. O’Rear, 210 S. W., 392; Arts. 1108, 1119, 1302, 1528, Rev. Statutes, 1925.

Royston & Rayzor, by permission of the court, filed briefs in support of the position of appellee.

A municipal corporation, like a private corporation, can exercise only such powers as have been specifically granted to it or such as are necessary to give effect to those powers specifically granted, or such powers as are necessarily or fairly implied in or incident to powers expressly granted. Foster v. City of Waco, 255 S. W., 1104; City of Ottawa v. Carey, 108 U. S., 110, 2 Sup. Ct. Rep., 361, 27 L. Ed., 669; Hill v. Memphis, 134 U. S., 198, 10 Sup. Ct. Rep., 562, 33 L. Ed., 887; Barnett v. Denison, 145 U. S., 135, 12 Sup. Ct. Rep., 819, 36 L. Ed., 652; Thomas v. Richmond, 12 Wall., 349, 20 L. Ed., 453; Merrill v. Monticello, 138 U. S., 673, 11 Sup. Ct. Rep., 441, 34 L. Ed., 1069.

The constitution and statutes of the State of Texas do not contain express grants to the City of Denton to construct, operate and maintain an ice plant, and the power to do so is not necessarily or fairly incident to any powers granted the City of Denton or essential to the accomplishment of the declared objects and purposes of the City of Denton. Revised Statutes of Texas, Arts. 1107, 1108, 1119, 1175, Sections 13 and 14, Art. 1302, Sections 15, 17, 88, Art. 1528.

The manufacture, sale and distribution of ice is not a business which has been so impressed with public use as to be a public utility within the meaning of law. Van Valkenburg v. Ford, 207 S. W., 405; Clint v. Home Ice and Brewing Company, 106 Texas, 508, 169 S. W., 411; Kansas City v. O’Rear, 210 S. W., 392; Union Ice Company v. Ruston, 135 La., 898, L. R. A., 1915 B, 859; Attorney General v. Detroit, 150 Mich., 310, 113 N. W., 1107; Opinion of Justices, 182 Mass., 605, 66 N. E., 25; King v. Waycross, 101 Ga., 588, 29 S. E., 42; State v. Kelly, 71 Kansas, 711, 70 L. R. A., 450; City of Ottawa v. Carey, 108 U. S., 110, 27 L. Ed., 669; White Eagle Oil and Refining Company v. Gunderson, 205 N. W., 614; Williams v. Standard Oil Company, U. S., 73 L. Ed., 141; Chas. Wolf Packing Co. v. Court of Industrial Relations of the State of Kansas, U. S., 67 L. Ed., 1103; Munn v. People of Ill., 94 U. S., 278, 24 L. Ed., 77; Terminal Taxicab Company v. Kutz, 241 U. S., 252, 60 L. Ed., 984.

*197certified question.

(As stated in the original opinion of the Commission of Appeals, here withdrawn.)

The certificate very clearly and fully states the facts and issues here presented. It is as follows:

“Upon the verified petition of appellee, Denton Home Ice Company, the Honorable B. W. Boyd, Judge of a district court of Denton County, in vacation, on the 5th day of January, 1929, granted a temporary writ of injunction against the City of Denton, its mayor and councilmen, restraining them from building, 'maintaining or operating an ice plant in the City of Denton. The defendants filed their original answer presenting a plea in abatement, a general demurrer, special exceptions, a general denial and a special verified answer. Upon this answer defendants filed and presented their motion to dissolve the temporary writ of injunction. The judge first heard the plea" in abatement, the general demurrer and exceptions, and overruled them. Upon a further hearing upon the pleadings and evidence submitted, the motion to dissolve was overruled and the injunction continued, and from the order overruling the motion to dissolve, this appeal has been duly prosecuted.

“In our further statement, we omit all reference to pleadings, evidence, and rulings of the0 court which relate to questions other than that certified, to wit: Whether it is lawful for the City of Denton to build, equip, own and operate a municipal ice plant ?

“As pertinent to this question, the record discloses that the City of Denton is a city of over 5,000 inhabitants, operating under a charter and under the Home Rule Amendment and statutes applying to such cities. The appellants, other than the city, are the mayor, city secretary, and five commissioners of the City of Denton. The appellee is a private corporation engaged in the business of manufacturing and selling ice in the City of Denton, also is a large property taxpayer of said city and a large user of electric power and water furnished by the city. The city, acting by and through its mayor and other officials named, is threatening to build, establish, maintain, and operate a large plant for the manufacture and sale of ice and for the storage of the same in the City of Denton, and in furtherance of this plan is now threatening and have advertised for bids, to be opened at a designated date, for the construction of a large brick building intended to house ice and to be used as a site for said ice manufacturing and vending business.

*198“It was further alleged and shown that there was already three ice plants in said city producing and supplying sufficient ice to meet every necessity of the inhabitants. It is contended in behalf of appellants that the manufacture, sale, and distribution of ice is a business affected with a public interest in a like category with gas as fuel and electric current and the supply of- water, and that municipally owned ice plants are justified and authorized by law. In support of this contention, appellants cite article 1175, Rev. Statutes of 1925, which enumerates powers of cities operating under the Home Rule Amendment, and Article 1302, secs. 15 and 88, which define the purposes for which private corporations may be created. Appellants further cite McQuillan on Municipal Corporations, Vol. 5, sec. 1158, page 77, and the following cases as upholding the right of municipalities to own and operate ice plants, towit: Oklahoma Light & Power Co. v. Corporation Commission, 220 Pac. 54; Holton v. Camilla, 68 S. E., 472; Saunders v. Mayor and Council of Arlington, 147 Ga., 581, 94 S. E., 1022; City of Tombstone v. Macia, 245 Pac., 677; Laughlin v. Portland, 111 Me., 486, 90 Atl., 318; Jones v. Portland, 113 Me., 123, 93 Atl., 41, affirmed by the Supreme Court of the United States in Jones v. Portland, 245 U. S., 217, 38 Sup. Ct. Rep., 112; Central Lumber Co. v. Waseca, 152 Minn., 201, 188 N. W., 275; Mutual Oil Co. v. Zehrung, 11 Fed., (2d) 887; Municipal Fuel Yard Consumers Coal Co. v. City of Lincoln, 109 Neb., 51, 189 N. W., 643.

“A further contention of appellants is to the effect that if the statutes- and decisions cited above do not establish the right of a municipality to own and operate an ice plant, it is nevertheless within the legislative power to determine that such business is so affected with a public interest as to make the same a public utility and that hence the City of Denton, as a Home Rule City, had the legislative power to declare the ice business contemplated by it affected with public interest so as to make the same a public utility, citing in support of this' contention the charter provisions of the City of Denton, to the effect that the enumeration of powers in the charter shall not be construed to- preclude the City of Denton, by implication or otherwise, from exercising all the powers incident to the enjoyment of local self-government, nor to do any and all things not inhibited by the Constitution and laws of the State of Texas; that all powers heretofore granted or that may hereafter be granted by general or special laws are hereby preserved to the City of Denton; that exclusive franchises or privileges are prohib*199ited; that the city shall forever have the right ‘to purchase, own, control, and operate any and all public utilities’; and to purchase and regulate all franchises granted by said city, further citing the cases of Mutual Oil Co. v. Zehrung, 11 Fed., (2d) 890; Jones v. Portland, 245 U. S., 217, 62 Law. Ed., 252; Laughlin v. Portland, 111 Me., 486.

“In opposition to the contentions of appellants as above indicated, appellee insists upon the general proposition that municipal corporations are creatures of the statutes and can exercise only those powers expressly designated to it, or necessarily implied as an incident to those powers expressly granted, and that no statute or constitutional provision of Texas has. classified the ice business as a public utility, or as so affected with a public use as to authorize a municipality to do the things threatened in the present suit, citing in aid of this contention Foster v. City of Waco, 255 S. W., 1104; Gulf Bitulithic Co. v. Nueces County, 297 S. W., 752; State v. Country Club, 173 S. W., 570; State ex rel. Kansas City v. O’Rear, 210 S. W., 392; Union Ice Co. v. Ruston, 135 La., 898, L. R. A., 1915B, 859; Williams v. Standard Oil Co., by the Supreme Court, reported in Vol. 49, Supreme Court Reporter, 115, advance sheets, published February 1, 1929. Appellee also cites section 3, art. 8, of the Constitution, which provides that taxes shall be levied and collected by general laws and for ‘public purposes only’; and also calls attention to article 1108, Rev. Statutes of 1925, which enumerates public utilities and which fails to include the manufacture and sale of ice in the list; and article 1119 which provides for the regulating of public utilities and which does not include the ice business, and other similar statutes inferentially negativing the proposition that the ice business is a public utility, including reference to the powers given municipalities to exercise the right of eminent domain; and the case of Van Valkenburgh v. Ford, 207 S. W., 405, in which it was held that the ice business was not one of the public utilities authorized to exercise the right of eminent domain. It may not be amiss to add that the opinions printed in pamphlet form with supporting authorities of Judge H. M. Garwood of Houston and Honorable Chas. L. Black of the Austin bar, which, together with the printed pamphlet containing the charter provisions of the City of Denton, submitted herewith, are referred to by the several contestants in this case. These opinions, as we are given to understand, were submitted to our Legislature in aid of an effort to clothe our railway commission with power to regulate the ice business. *200Appellants cite the opinions in aid of their contention, while appellee refers to the fact, asserted, that the legislature failed to confer the power sought on the railway commission, thus indicating the legislative opinion that the ice business was not of such public use as to constitute it a public utility.

“Because of the wide interest in the question, the conflicting state of the decisions and because the construction of our statutes are involved, we deem it advisable, pretermitting all reference to other questions presented, to submit to your Honors for determination the vital question in this case, towit:

“Whether the City of Denton, under the foregoing statements, in lawful ways, may provide the means and therewith build, establish and operate an ice plant and supply the inhabitants of Denton with ice at a reasonable rate? ”