1. A franchise granted to a utility company by the City of
Texarkana, Texas, contained a section (§ IX) providing that, if the
company should "be finally compelled to, or should voluntarily,
place in any rates" for the adjacent City of Texarkana, Arkansas,
less than those fixed by the franchise, then such lower rates
should apply also in the Texas city and the company "shall not be
authorized or permitted to charge and collect any higher rate."
Held:
(1) The section was not invalid as a delegation or abdication of
the power of the Texas city under its charter to regulate the
business and fix the rates of public utilities. P.
306 U. S.
196.
(2) By the law of Texas, the section was binding on the utility
company although, because of the reserved power to raise or lower
the rates, not binding on the municipality. P.
306 U. S.
197.
Grant of the franchise is consideration for the undertaking of
the utility to maintain the prescribed rates until they are altered
by the exercise of the reserved power of the municipality to
regulate the rates. P.
306 U. S.
200.
(3) Earlier decisions of this Court to the effect that, under
the law of Texas, a municipality could not validly make a rate
contract with a public utility because inconsistent with its
reserved power to regulate rates are inapplicable, because (a) the
state supreme
Page 306 U. S. 189
court, in a subsequent decision, has indicated that the contract
and regulatory powers may be exercised concurrently, and (b) the
charter of the municipality here involved specifically empowers it
to enter into franchise agreements with rate regulation reserved.
P.
306 U. S.
201.
(4) When the utility voluntarily put into effect in the Arkansas
city rates lower than those granted by the franchise, then the
consumers in the Texas city were immediately entitled to the lower
rate. P.
306 U. S.
202.
(5) Where a rate order applicable in the Arkansas city was
challenged by the utility, the latter is not "finally compelled" to
"place in" the rate until entry of the final order of a court
making the rate effective; but when such final order is entered,
the Texas consumers are entitled to have the lowered rate applied
to their consumption for the same period of time that it is enjoyed
by the Arkansas consumers. P.
306 U. S.
202.
(6) A supplemental petition seeking to give the Texas consumers
the benefit of a lower rate which had been decreed for the Arkansas
city, but from which decree an appeal by the company was pending,
was premature. P.
306 U. S.
203.
(7) Upon remand of this case to the District Court for further
proceedings, leave should be granted -- the Arkansas rate case
having finally been determined -- to file a supplemental petition
to bring to date the controversy over the refund of charges by the
company. P.
306 U. S.
203.
(8) Section IX is not invalid as vague, indefinite, and obscure.
P.
306 U. S. 204.
(9) Section VIII-A of the franchise, relative to notice of
application for increase or decrease in rates, is, by its terms,
inapplicable to the power of the city to increase rates. P.
306 U. S.
197.
2. Questions of the validity and construction of a franchise
granted under state law to a utility company are to be determined
by the federal court in accordance with the law of the State. P.
306 U. S.
198.
3. This Court relies upon the trial court for aid in the
examination and interpretation of the local law. P.
306 U. S.
198.
4. A respondent in certiorari here may urge affirmance of the
judgment of the Circuit Court of Appeals on a ground assigned by
him on his appeal to that court as requiring judgment in his favor,
but which it did not pass upon. P.
306 U. S.
198.
5. Where there is a good cause of action stated in the original
bill, a supplemental bill setting up facts subsequently occurring
which justify other or further relief is proper. P.
306 U. S.
203.
Page 306 U. S. 190
6. That the rates stipulated in a binding contract between a
utility and a municipality are inadequate is not a defense to their
enforcement. P.
306 U. S. 204.
97 F.2d 5 reversed.
Certiorari, 305 U.S. 584, to review a decree which, upon appeal
from the District Court in a suit brought by the city against the
utility company, reversed and remanded with instructions to dismiss
the bill.
MR. JUSTICE REED delivered the opinion of the Court.
A writ of certiorari brings to this Court for review a judgment
[
Footnote 1] of the Circuit
Court of Appeals for the Fifth Circuit denying the validity or
applicability of the following section in a franchise granted to
respondent by petitioner in 1930. Section IX of that franchise
reads as follows:
"If Grantee shall be finally compelled to, or should
voluntarily, place [
sic] in any rates in the City of
Texarkana, Arkansas, less than the rates granted by this Ordinance
then and thereupon the lessened rate shall apply in the City of
Texarkana, Texas, and Grantee shall not be authorized or permitted
to charge and collect any higher rate."
Texarkana, Texas, and Texarkana, Arkansas, are adjacent cities
divided by the Arkansas-Texas state line. Respondent serves as a
public utility for the distribution of gas in
Page 306 U. S. 191
both cities. Because of the section just quoted, the Texas city
undertook judicial action to secure gas for itself and its citizens
at rates lower than those stated in other sections of the
franchise. We granted certiorari [
Footnote 2] on account of asserted conflict with the
decisions of the state courts on an important question of local
law.
The charter of the Texas city gives authority to grant
franchises for the use of its public ways upon terms to be embodied
in ordinances, which must expressly provide that the city shall
retain the regulation of the business of the utility, the fixing of
its rates, and the right to inspect its operations. Should these
reservations be omitted, they are nevertheless to be considered
part and parcel of the franchise. [
Footnote 3] The charter also provides that the city should
have the power to regulate rates charged by gas companies.
[
Footnote 4]
Page 306 U. S. 192
The gas company and its predecessors had long held a franchise
for furnishing gas to the Texas city. The earliest ordinances of
the city were amended in 1923, by which amendment certain rates for
gas were fixed. Article E in that ordinance provided that the gas
company should "not at any time charge for furnishing gas" to the
Texas city "a greater sum . . . than it at the same time charges
and collects" from the Arkansas city. On June 17, 1930, the gas
company accepted a compromise agreement, in ordinance form, which
increased the rates to gas consumers from those set out in the 1923
franchise. This is the ordinance containing the Section IX
heretofore quoted, and it is the ordinance regulating rates now in
effect in the Texas city.
On May 30, 1930, the gas company secured a similar arrangement
adjusting rates from the Arkansas city. There had previously been
in effect a franchise of 1923 with rates substantially identical
with the Texas 1923 rates. The Arkansas franchise of 1930 was
subjected to a referendum and to prolonged litigation. Eventually,
on December 1, 1933, a final order set aside the 1930 ordinance of
the Arkansas city and established the rates of the 1923 ordinance
as effective for the consumers of the Arkansas city from 1930 to
the date of the decree. This
Page 306 U. S. 193
decree also required refunds to the Arkansas consumers for
overpayment during that period. [
Footnote 5] By further litigation, a resolution of the
council of the Arkansas city of December 22, 1933, promulgating
rates for the future was upheld. [
Footnote 6] These last rates were the 1923 rates, modified
in minor particulars. In the order of December 4, 1936, confirming
the rates established by its resolution, the gas company was
directed to refund to the consumers any overpayment by reason of
the collection of higher rates during this last judicial
proceeding. It thus appears that the legal rates to the consumers
of the Arkansas city at all times have been substantially those of
the 1923 ordinance.
In Texarkana, Texas, the consumers have paid since 1930 the
rates fixed in that ordinance, which are substantially higher than
those finally determined as applicable to the Arkansas consumers.
The gas company, in October, 1933, sought from the Texas city
council rates still higher than those granted by the 1930
ordinance. The company gave notice that, on November 23, 1933, a
new and higher schedule of rates than those provided in the 1930
agreement would be established in the Texas city. The Texas city
sought and obtained in the state court an injunction against this
increase. This is still effective. This suit was removed to the
Federal district court for Texas. The bill was amended on January
15, 1934, to set up an additional cause of action against the gas
company by reason of the entry of the decree on December 1, 1933,
in the Arkansas litigation. As this decree was a final order
determining that the Arkansas consumers
Page 306 U. S. 194
should pay only the 1923 rates, the Texas city conceived its
citizens should have the benefit of the same lower rates by virtue
of Section IX. It was further sought by this amendment to recover
for the affected time a refund for the Texas consumers equal to the
difference between the Arkansas rates, as determined by the decree
of December 1, 1933, and the Texas 1930 rates. Later, on December
30, 1936, a supplemental bill was filed to set out the further
claim of the Texas city consumers, for the period between that
covered by the first amendment and the filing of the supplemental
bill, together with a prayer that the gas company be compelled to
pay into the registry of the court the excess amount which it was
alleged it had and was continuously collecting from the Texas
consumers. Immediate distribution was asked for the funds
applicable to those periods concerning which no further Arkansas
litigation was pending.
The situation from the standpoint of the Texas city might be
summarized by saying that it seeks for its consumers the lower 1923
Arkansas rates, instead of the Texas 1930 rates, from the effective
date of the Arkansas resolution of May 30, 1930, to February 16,
1934. This refund is claimed because the Arkansas consumers
obtained these lower rates by the Arkansas decree of December 1,
1933, and the voluntary act of the gas company in collecting the
lower rates from the date of the decree to February 16, 1934. On
final affirmance of the Arkansas litigation, it seeks refunds for
its consumers from February 16, 1934, to December 4, 1936, of the
difference between the Texas 1930 rates and the Arkansas December
22, 1933, rates. This refund is claimed because of the decree of
December 4, 1936, [
Footnote 7]
validating for the Arkansas consumers the rates of the 1933
resolution. These rates were substantially
Page 306 U. S. 195
the same as those fixed in the 1923 ordinance. As an injunction,
pending appeal, was refused, these lower rates have been in effect
in Arkansas since the date of the decree. As pointed out above, the
decree was affirmed by the Circuit Court of Appeals and certiorari
refused here. It is further sought to have put into effect in Texas
the rates collected in Arkansas after December 4, 1936. The right
to the lower rates and to the refund depends upon the
interpretation of Section IX.
Another bill was filed by the Texas city in May, 1934, seeking
substantially the same relief as that sought in the proceeding
heretofore detailed. The reasons for the filing of this second suit
and its purpose are not material to the present proceeding. The two
actions were consolidated. Later motions, pleadings, and the decree
in the two cases are the same.
The gas company filed answers to the bills set out above and a
counterclaim seeking higher rates. Section IX was challenged as
invalid because of conflict with the provisions of the city
charter, the laws, and constitution of Texas. It was asserted that
the section was not a binding contract on either party to the
franchise, and further asserted that, if § IX was valid, it was
inapplicable to any of the three periods for which the Texas city
sought relief and refund. The district court granted the city's
motion to strike the answers and counterclaim and, the gas company
declining to amend, decreed that § IX was a binding contract
between the parties; that it was inapplicable to the period prior
to December 1, 1933; that refund should be made from December 1,
1933, to February 16, 1934, and that the suit was premature as to
the period after February 16, 1934, because an appeal was pending
in the Circuit Court of Appeals for the Eighth Circuit at the time
the second amendment was filed by the Texas city on December 30,
1936. The Circuit Court of Appeals reversed and remanded with
directions to dismiss
Page 306 U. S. 196
the bill. [
Footnote 8] It
thought that § IX was an invalid abdication or delegation of the
Texas city's ratemaking power, since the section purported to bind
both parties to lower rates which might be fixed by the gas company
and the Arkansas city. The lower court stated also, without
discussion, that the clause was inapplicable even if valid. The
petition for certiorari relies upon the alleged error of the lower
court in deciding that the section was invalid and
inapplicable.
Abdication or delegation of regulatory power. By the
act to incorporate the city of Texarkana, Texas, the legislature
granted a special charter which contained delegations of power to
the municipality to contract for utilities and to regulate gas
rates, and prohibitions against the granting of a franchise without
specific reservation of this power of future regulation. [
Footnote 9] The respondent takes the
position that, since § IX not only requires the application of
lower Arkansas rates to Texas consumers, but provides that the gas
company "shall not be authorized or permitted to charge and collect
any higher rate," the Texas city has abdicated power to raise the
Texas rates above the Arkansas rates. As the Texas city is
forbidden to give up the power to regulate rates, the section, says
the company, is invalid.
The city agrees that any delegation or abdication of complete
power to regulate rates would be unlawful, and any provision of a
franchise leading to that result invalid, under the decisions of
Texas. [
Footnote 10] It is
the petitioner's position,
Page 306 U. S. 197
however, that a proper interpretation of the section leaves with
the city the unimpaired power to regulate the gas rates, within the
limits of the applicable constitutional provisions. We agree with
this analysis of the section. The words just quoted prohibiting the
charge or collection of higher rates more reasonably imply a
limitation on the right of the gas company to look to other
provisions of the franchise for authority to exact other rates.
But, if this view is not accepted, it is quite clear that the
charter provision 163a retaining the right to regulate must be read
into the franchise. This would result in leaving in the council of
the Texas city the power to raise or lower the gas rates.
Nor, in this view, can it be said there is delegation, as
distinct from abdication, of the power to regulate. It is true,
extra-state action determines that the rate shall lessen, but the
council has power over the rates at all times. The Arkansas rate is
a mere measuring rod, as though the rate fluctuated with
temperature or consumption. Even if § VIII-A [
Footnote 11] is valid, in the face of §§ 163,
163a and 196 of the charter, it is inapplicable, by its terms, to
the power of the city to increase rates.
The obligation of the utility under section IX. As the
lower court determined § IX is wholly invalid as a delegation and
abdication by the city of its ratemaking powers, there was no
occasion for it to consider whether the
Page 306 U. S. 198
section was binding upon the utility alone. With the conclusion
that the city is free to raise or lower the rate, in the public
interest, we must inquire whether the gas company is bound to
furnish Texas consumers their gas at the lessened Arkansas rates.
The determination follows the state law. [
Footnote 12] This Court looks to the trial court for
the original examination of local questions [
Footnote 13] and relies for aid upon the
explanation of its conclusion. While no opinion was written in the
trial court, its decree found § IX a "binding contract" and awarded
recovery for a portion of the time involved. Assuming the district
court agreed with this Court that the city could not and did not
delegate or abdicate its ratemaking function, this necessarily
required a holding that the company alone was bound by this section
of the contract. An appeal, with specific assignment of this ruling
as error, brought the case to the Circuit Court of Appeals and the
point is argued here by respondent as justification for the
judgment reversing the District Court. [
Footnote 14] Under these circumstances, we feel
constrained to pass upon the question. [
Footnote 15]
It cannot be said that any opinion of the Supreme Court of Texas
settles the problem of whether a utility is bound to a contract for
a schedule of rates when the municipality is not. That court, in
1925, in
Dallas Railway Co. v. Geller, did state that an
ordinance on rates is a contract. [
Footnote 16] There had been a franchise with a fixed
Page 306 U. S. 199
maximum rate. The municipality granted an increase. A citizen
objected on the ground that the franchise, as a contract, bound the
municipality and the utility to the agreed rate. The Court of Civil
Appeals [
Footnote 17] held
the rate section of the franchise was not a "fixed contract," but a
rate schedule, subject to the city's power of regulation by reason
of § 17 of Article 1 of the Texas Constitution, forbidding
uncontrollable grants of special privileges. On review, the Supreme
Court stated that a question had been raised by city attorneys,
appearing as
amici curiae, as to the meaning of the
language of the lower court which was construed by some to hold
that "a municipality cannot make contracts that are binding upon
public service corporations." [
Footnote 18] While the court could have avoided comment
on the point upon the theory that, whether or not there was a
contract, the city's regulatory power was unaffected, it chose to
interpret the franchise in the light of the contract in these
words:
"The right or power to further control or regulate the grant in
regard to the rate schedule is a reservation to the municipality,
and not an inhibition to contract; and, where a franchise is
accepted by a grantee, this reservation . . . becomes a part of the
contract."
Later, the Supreme Court, in discussing the power of the
legislature to authorize specifically binding rate contracts for
definite periods, citing the
Uvalde case, said, "It is
well established in this state that the Legislature may, by express
words, authorize municipal corporations to enter into contracts"
for rates for limited periods. [
Footnote 19] We reason from these opinions that, in
Texas, a
Page 306 U. S. 200
utility franchise is a contract, with an express or implied
provision that the rate schedules are subject to regulation by the
city. In such a contract, an agreement by the utility to lower
rates under specified conditions is binding, although the rule as
to the reserved power of regulation prevents the city from agreeing
not to raise or lower rates. Grant of the franchise is
consideration for the undertaking of the utility to maintain the
prescribed rates until they are altered by the exercise of the
reserved power of the municipality to regulate the rates.
The case of the
Uvalde v. Uvalde Electric & Ice
Co., [
Footnote 20] is
suggested as an authority against interpreting a rate contract,
invalid as to the city, as binding upon the utility. Uvalde,
without power to contract for rates, did so contract. The utility
raised the rates without permission. The court was of the view that
"the power to regulate rates and the power to stipulate by contract
for a term of 10 years for rates cannot coexist." Looking at the
contract in this way, and without discussion of the effect of the
attempted agreement on the utility, an injunction against the new
rates was refused. That case appears rather a precedent for the
rule that, where a city is not authorized to contract as to rates,
but only to regulate them, any effort to contract is nugatory. As
indicated above, it has been cited by the Supreme Court of Texas as
authority for the right of a municipality to contract when so
empowered.
This Court has had other occasions to consider the rights of
Texas utilities under the provisions of the Texas statutes and
constitution. In
San Antonio Traction Co. v. Altgelt,
[
Footnote 21] we assumed a
rate contract between the city and the street railway, and ruled
that it was subject to
Page 306 U. S. 201
§ 17 of the Texas bill of rights, [
Footnote 22] which declared that all privileges granted
by the legislature remained under its control. Consequently, an
enactment changing the rate agreement was valid. Later, 1920, in
San Antonio v. San Antonio Pub. Serv. Co., [
Footnote 23] in passing upon a rate
increase by a utility in the face of a franchise limitation, we
ruled that § 17 of the constitution, with its provision against
irrevocable special privileges, made impossible a contract in Texas
on rates because of the conflict between the right to contract and
the superior and inconsistent power to regulate. To the argument
that the company might be bound, though the city was not, the court
replied: If the city is not bound,
"it would follow that that power [uncontrolled regulatory] would
be required to be exerted, and hence the supposed condition
operating upon the private owner would be nugatory. [
Footnote 24]"
These conclusions of this Court are inapplicable here for two
reasons: first, the subsequent opinion of the Supreme Court of
Texas in the
Geller case indicates that regulatory and
contract power may be exercised concurrently in that state; second,
the charter of Texarkana, Texas, gives it specific power to enter
into franchise agreements with rate regulation reserved to the
city. [
Footnote 25] The
Page 306 U. S. 202
utility was chargeable with notice in 1930 of the rule in Texas,
restated in the Texarkana charter, that rate regulatory power
remains in the municipality and the charter provision to that
effect was reserved in the franchise by force of law. It
contracted, nevertheless, to furnish the Texas city gas at the same
rates as Arkansas consumers enjoy. There appears no reason why such
an agreement should not be enforceable and, in our view, of the
Texas law, it is.
Applicability. The trial court determined that § IX was
not to be applied to the period prior to December 1, 1933; that it
should be applied to the period December 1, 1933, to February 16,
1934, and that the effort to recover refunds for the period after
February 16, 1934, was premature. The Circuit Court of Appeals
thought the section, if valid, generally inapplicable. We are of
the opinion that the language of the section was intended to and
does make applicable to each Texas consumer the same rates that
Arkansas consumers are charged for similar uses and quantity, when
the Arkansas rates are lower than the rates granted Texas consumers
by the ordinance of the City of Texarkana, Texas, of June 13, 1930.
This flows from the words in § IX "place in any rates" less than
the Texas ordinance rates.
The lower rates for Texas are to be effective only when the
utility is "finally compelled to, or should voluntarily, place in"
effect the lower rates for Arkansas. When a rate is voluntarily
placed in effect in Arkansas, the Texas consumers are immediately
entitled to the same rate. We construe "finally compelled" as
meaning the entry by a court of the final order which makes
effective a challenged rate order. No right to demand the lower
rate and no cause of action to enforce the right arises until that
time. When such order is entered, however, the Texas consumers are
entitled to have the lowered rate applied to their consumption for
the same period of time
Page 306 U. S. 203
it is enjoyed by the Arkansas consumers. The purpose of the
clause was to give Texas consumers the advantage of lower Arkansas
rates for similar periods of time. Litigation, regardless of its
merit, may not stay the beginning of the lower Texas rate. On our
view, so much of the relief sought as was based upon the challenged
rate order of December 22, 1933, was premature. [
Footnote 26] As there was an appeal from
the decree of December 4, 1936, it was ineffective to create a
cause of action when the supplemental petition of December 30,
1936, was filed.
Leave to file a supplemental petition to bring to date the
controversy over the refund of rates, collected subsequent to
February 16, 1934, should be granted, upon the return of the case
to the District Court, on motion of the City of Texarkana, Texas.
The present action is an appropriate proceeding for the settlement
of the entire rate controversy and the refund of such sums as may
be determined, ultimately, to be due the Texas consumers. [
Footnote 27] Where there is a good
cause of action stated in the original bill, a supplemental bill
setting up facts subsequently occurring which justify other or
further relief is proper. If the original decree in the trial court
had not been entered, this supplemental petition would simplify the
controversy. [
Footnote 28]
We think this procedure is equally applicable after remand for
further proceedings. [
Footnote
29]
Page 306 U. S. 204
Other suggestions to support the respondent's position that § IX
is invalid are made. It is said that it is vague, indefinite, and
obscure. These have been answered by what we have written. The
issue of confiscation tendered by the answer of the utility to the
petition to enforce the obligations of § IX need not be considered
in this proceeding. If the utility has entered into a binding
contract as to rates, their confiscatory character is not a defense
to the claim of the city to service at the contract rates.
[
Footnote 30]
It is further ordered that the decree of the United States
District Court for the Eastern District of Texas, filed herein on
July 31, 1937, be reversed insofar as it held that § IX of the
franchise was not applicable to the period prior to December 1,
1933.
Reversed.
MR. JUSTICE McREYNOLDS and MR. JUSTICE BUTLER are of opinion
that the decision of the Circuit Court of Appeals is right, and
that its judgment should be affirmed.
MR. JUSTICE FRANKFURTER took no part in the consideration or
decision of this case.
[
Footnote 1]
Arkansas Louisiana Gas Co. v. City of Texarkana, Texas,
97 F.2d 5.
[
Footnote 2]
305 U.S. 584.
[
Footnote 3]
"Sec. 160. The rights of the City of Texarkana in the use of the
public streets, alleys, squares, parks, bridges and all public
places are hereby declared to be inalienable to any person, firm or
corporation, except by license permit and franchise passed by the
city council on the affirmative vote of three-fifths of all the
members of said council elected."
"Sec. 163. Said proposed franchise shall contain all the terms
and agreements between the parties thereto, and it must expressly
set forth that the council shall have the right and privilege of
regulating and controlling the operation of all business done
thereunder, fixing fares, rates, tolls and charges and inspecting
the business and work from time to time as it progresses, and rate
regulations shall conform to Section 197 of this charter."
"Sec. 163a. In the event that any franchise or permit is so
given by said council, which shall not contain such stipulations
therein as provided for in Section 162 of this charter, then it
shall, nevertheless, be considered that all of the said
stipulations contained in said Sections 162, 163 and 197 are part
and parcel of the said contract and franchise, just as though
written therein, and the said applicant so accepting such
franchise, as well as their heirs, assigns and successors, shall be
held and firmly bound thereto, notwithstanding such omissions."
[
Footnote 4]
"Sec.196. That the city council shall have the power to regulate
by ordinance the rates and compensation to be charged by all water,
gas, light and telephone companies, corporations or persons using
the streets and public grounds of said city and engaged in
furnishing water, gas, light and telephone service to the public,
and to prescribe reasonable rules and regulations under which such
commodities shall be furnished and services rendered, and to fix
penalties to enforce such charges, rules and regulations; provided,
that the city council shall not prescribe any rate or compensation
which will yield less than ten percent per annum net on the actual
costs of the physical properties, equipments and betterments. Said
city council may also fix the charges which may be collected for
transporting passengers and baggage in vehicles engaged in public
service."
[
Footnote 5]
Arkansas Louisiana Gas Co. v. Texarkana, 97 F.2d 5, 6,
col. 2;
cf. Southern Cities Distributing Co. v. Carter,
184 Ark. 4, 41 S.W.2d 1085,
appeal dismissed, 285 U.S.
525-526;
Texarkana v. Southern Cities Distributing Co., 64
F.2d 944,
cert. denied, 290 U.S. 650.
[
Footnote 6]
Arkansas Louisiana Gas Co. v. Texarkana, 17 F.
Supp. 447,
aff'd, 96 F.2d 179;
cert. denied,
305 U.S. 584.
[
Footnote 7]
United States District Court, Arkansas:
Arkansas Louisiana
Gas Company v. Texarkana, 17 F. Supp.
447.
[
Footnote 8]
Arkansas Louisiana Gas Co. v. Texarkana, 97 F.2d 5.
[
Footnote 9]
The provisions are set out in notes
3 and 4 supra.
[
Footnote 10]
Uvalde v. Uvalde Elec. & Ice Co., 250 S.W. 140;
Texas Gas Utilities v. Uvalde, 77 S.W.2d 750;
Nairn v.
Bean, 48 S.W.2d 584, 586;
cf. Railroad Comm'n v. Weld
& Neville, 96 Tex. 394, 405, 73 S.W. 539;
Missouri-Kansas & T. R. Co. v. Railroad Comm'n, 3
S.W.2d 489, 493;
Green v. San Antonio Water Supply Co.,
193 S.W. 453.
[
Footnote 11]
"Section VIII-A. In consideration of the granting of this
franchise, it is mutually agreed and understood by and between the
parties hereto that, before the City Council of said City shall
apply for a reduction in rates, or before the Southern Cities
Distributing Company, its successors or assigns, shall make
application for an increase in rates, either party shall give to
the other party one year's notice in writing of its intention to so
apply for an increase or decrease in rates, and no application for
increase or decrease in rates shall be acted upon or considered
unless said one year's notice is first given before making such
application."
[
Footnote 12]
§ 34, Act of September 24, 1789, c. 20, 1 Stat. 73, 92;
Erie
R. Co. v. Tompkins, 304 U. S. 64;
Southern Iowa Elec. Co. v. Chariton, 255 U.
S. 539,
255 U. S. 543;
Railroad Comm'n v. Los Angeles Ry. Co., 280 U.
S. 145,
280 U. S.
151.
[
Footnote 13]
Railroad Comm'n v. Los Angeles Ry. Co., 280 U.
S. 145, p.
280 U. S. 164
dissent, n. 1.
[
Footnote 14]
Langnes v. Green, 282 U. S. 531,
282 U. S.
538.
[
Footnote 15]
Cf. Ruhlin v. New York Life Ins. Co., 304 U.
S. 202,
304 U. S.
206.
[
Footnote 16]
114 Tex. 484, 271 S.W. 1106, 1107.
[
Footnote 17]
Geller v. Dallas Ry. Co., 245 S.W. 254, 256.
[
Footnote 18]
It was stated in petitioner's brief and not denied that, after
the decision in
Uvalde v. Uvalde Elec. & Ice Co., 250
S.W. 140, discussed in the next paragraph, briefs were filed in the
Supreme Court in the
Geller case arguing the effect of the
Uvalde decision.
[
Footnote 19]
Lower Colorado River Authority v. McCraw, 125 Tex. 268,
83 S.W.2d 629, 638.
[
Footnote 20]
250 S.W. 140, 141.
Compare Texas Gas Utilities v.
Uvalde, 77 S.W.2d 750, 752.
[
Footnote 21]
200 U. S. 304,
200 U. S.
308.
[
Footnote 22]
Constitution of Texas, Bill of Rights, Vernon's Texas Statutes
1936, p. xxv, § 17.
"No person's property shall be taken, damaged or destroyed for
or applied to public use without adequate compensation being made,
unless by the consent of such person; and, when taken, except for
the use of the State, such compensation shall be first made, or
secured by a deposit of money, and no irrevocable or uncontrollable
grant of special privileges or immunities, shall be made; but all
privileges and franchises granted by the Legislature, or created
under its authority shall be subject to the control thereof."
[
Footnote 23]
255 U. S. 255 U.S.
547,
255 U. S.
555.
[
Footnote 24]
Cf. Railroad Comm'n v. Los Angeles Ry. Co.,
280 U. S. 145,
280 U. S. 151.
But cf. Southern Utilities Co. v. Palatka, 268 U.
S. 232,
268 U. S.
233.
[
Footnote 25]
§§ 163, 163a, 196, notes
3 and
4 supra.
[
Footnote 26]
Great Atlantic & Pacific Tea Co. v. Grosjean,
301 U. S. 412,
301 U. S.
429.
[
Footnote 27]
Rule 15(d), District Court Rules, September 1, 1938.
Cf. Rule 34, Federal Equity Rules, 1912.
[
Footnote 28]
New York Security & Trust Co. v. Lincoln St. Ry.
Co., 74 F. 67, 68;
Banks Law Pub. Co. v.Lawyers' Coop.Pub.
Co., 139 F. 701;
Kryptok Co. v. Haussmann & Co.,
216 F. 267;
Milo Manor, Inc. v. Woodard, 67 App.D.C. 296,
92 F.2d 220, 223.
Cf. Clarke v. Boysen, 264 F. 492, 496, a
closed account cannot be reopened.
[
Footnote 29]
Cf. 2 Daniell's Chancery Pleading and Practice, 6th
Am.Ed., pp. 1536, n. 6, and 1537. For further action after decree,
see Mitchell Coal & Coke Co. v. Pennsylvania. R. Co.,
230 U. S. 247,
230 U. S. 266;
Morrisdale Coal Co. v. Pennsylvania. R. Co., 230 U.
S. 304,
230 U. S. 314;
Rio Grande Dam Co. v. United States, 215 U.
S. 266,
215 U. S.
274.
[
Footnote 30]
Cf. St. Cloud Public Service Co. v. St. Cloud,
265 U. S. 352;
Henderson Water Co. v. Corp. Comm'n, 269 U.
S. 278;
see Southern Iowa Elec. Co. v.
Chariton, 255 U. S. 539,
255 U. S. 542;
Paducah v. Paducah Ry. Co., 261 U.
S. 267,
261 U. S.
272-273;
Georgia Ry. & Power Co. v.
Decatur, 262 U. S. 432,
262 U. S.
438-439;
cf. Columbus Ry., Power & L. Co. v.
Columbus, 249 U. S. 399,
249 U. S.
410.