holding members of San Antonio Electric and Gas System board of trustees, created pursuant to article 1115, are municipal agents whose powers and duties derive solely from the contract of encumbrance and the ordinance that created board and that their powers and duties are fixed and limited to those the municipality has expressly or by necessary implication conferred on them
How later courts described this case
- holding members of San Antonio Electric and Gas System board of trustees, created pursuant to article 1115, are municipal agents whose powers and duties derive solely from the contract of encumbrance and the ordinance that created board and that their powers and duties are fixed and limited to those the municipality has expressly or by necessary implication conferred on them
Written by the judges who cited it.
The opinion
On Motion for Rehearing.
MURRAY, Justice.
The majority of the Court adheres to the original opinion, because to do otherwise would be to overrule Sifford v. Waterworks Board of Trustees, Tex.Civ.App., 70 S.W. 2d 476 , and San Antonio Independent School District v. Waterworks Board of Trustees, Tex.Civ.App., 120 S.W.2d 861 , in both of which cases the Supreme Court ¡refused a writ of error.
However, in deference to the dissenting opinion of Chief Justice Smith, we have deemed it proper to discuss other phases of the case. The temporary injunction should be set aside because the petition therefor fails to allege an irreparable injury and likewise the proof fails to show any such irreparable injury. The “Board of Trustees” are in possession of the “Comal Plant” — no one is attempting by unlawful means or force to interfere with their possession — and if they feel that it is their, duty not to surrender the possession of such plant then all they have to do is to simply continue in possession of the same. The evidence shows that the same competent individuals will operate the plant whether it is theoretically in the possession of the “Board of Trustees” or of 'the Colorado River Authority, that the books are being so kept that regardless who should be ultimately shown to be entitled to operate the plant an accounting can easily be made. Under such circumstances there is no showing which will justify the harsh remedy of a temporary injunction.
Furthermore, a fair construction of all the instruments having a bearing upon the deal show that the Board of Trustees are not entitled to hold possession of the Co-mal Plant, and that it is under the. record as shown here their duty to deliver the same to the Colorado River Authority.
The purchase of the property of the San Antonio Public Service Company, the sale of the revenue bonds (whereby the purchase money was provided), the lease of the Comal Plant to the Guadalupe-Bianco River Authority, and the sub-leasing of the same to the Colorado River Authority, are one simultaneous transaction. It is true that the “Indenture” was contained in an ordinance passed some time before the deal was closed and it is also true that an ex-ecutory contract for the purchase of the property of the San Antonio Public Service Company and an executory contract for the sale of the revenue bonds were executed prior to the closing of the deal, but the Guadalupe-Bianco River Authority had certain suits pending against the City of San Antonio and the Attorney General of Texas very properly refused to approve the revenue bonds until all litigation was dismissed. The bonds could not be sold until the Attorney General gave his approval. The deal could not be closed until the City got the money for the bonds. The Guadalupe-Bianco River Authority *523 would not dismiss its suits unless the City would lease to them the Comal Plant. Thus the deal was simultaneously closed. The City entered into the lease contract with the Guadalupe-Bianco River Authority, the Authority dismissed its suits, the Attorney General approved the bonds, the brokers purchased the bonds and delivered the money to the City, the City paid the money to owners of the property, known as the San Antonio Public Service Company Gas and Electric System, the proper-tv was delivered to the City and by the City delivered to the Board of Trustees, with instructions to deliver the Comal Plant to the Colorado River Authority, in keeping- with the provisions of the lease contract with the Guadalupe-Bianco River Authority. Thus we have one simultaneous transaction with each instrument involved being of equal dignity with every other instrument.
But appellees contend that there is a conflict between the provisions of the “Indenture” and the “Lease Contract” and that this conflict should be decided in favor of the “Indenture.” The alleged conflict is based upon the following provision of the “Lease Contract”: “Sec. 2. The provisions of this Agreement are recognized and declared to be subject to all of the terms of that certain indenture dated August 1, 1942, by and between the City of San Antonio and Harris Trust and Savings Bank and Harold Eckhart, as trustees, in all respects with like force as though the bonds secured by said indenture had been delivered and outstanding on the date of the execution of this agreement, and if any provision or provisions hereof or the obligation of the City hereunder shall be determined by any court of competent jurisdiction to be in conflict with any terms which may appear in said indenture, the trustees under such indenture (Harris Trust and Savings Bank and Harold Eckhart) may enforce the provisions thereof as if the conflicting provision or provisions of this contract were void. All rights and remedies given bondholders by said indenture shall be fully enforceable against the leased properties, and if default shall ever occur in the payment of either principal or interest or any of the bonds secured by said indenture, all rights and remedies provided in said indenture may be enforced as if this agreement had automatically terminated and become void. * ⅝ *»
If this paragraph is given the effect contended for by appellees, it will render the other provisions of the lease meaningless and in effect nullify the entire “Lease Contract.” In construing contracts the intention of the parties is the determining factor. Certainly the parties did not write a lease contract of many pages, going into the most minute and particular provisions as to how the lease should be effected, and then by one vague and uncertain paragraph, intend to wipe out all they had written.
There is another cardinal principle, governing the construction of contracts which here applies. Where two contracts of equal dignity are in apparent conflict, it is the duty of the courts in construing such contracts to give to each such a construction, if possible to do so, that each may stand and that each may have effect.
When these cardinal principles of the construction of contracts are here applied, it becomes plain that what was intended by the parties was. that the “Lease Contract” should in no way impair the lien securing the revenue bonds provided in the “Indenture.”
We are not here called upon to pass upon whether the “Lease Contract” was a good deal or a bad deal for the City. Whether or not the “Lease Contract” should have been entered into was a matter addressed to the discretion of the May- or and City Commissioners of the City of San Antonio. There is no attempt here to show fraud, mistake or overreaching on the part of any one, and if the contracts were legally executed and are not in hopeless conflict they should be upheld.
Appellees’ motion for a rehearing is overruled.
The temporary injunction will be continued in effect for thirty days to enable appellees to apply to the Supreme Court for a writ of error herein.