# Texas Power & Light Company v. City of Garland

> Texas Supreme Court · March 27, 1968 · 11 Tex. Sup. Ct. J. 303

URL: https://www.frixlaw.com/law-library/cases/9675252

## Case

- **Full name:** TEXAS POWER & LIGHT COMPANY, Petitioner, v. CITY OF GARLAND Et Al., Respondents
- **Court:** Texas Supreme Court
- **Decided:** March 27, 1968
- **Citations:** 11 Tex. Sup. Ct. J. 303; 431 S.W.2d 511; 1968 Tex. LEXIS 286
- **Precedential status:** Published
- **Opinion:** On rehearing by Pope
- **Judges:** Smith, Pope, Steakley, Calvert
- **Cited by:** 29 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9675252

## How later opinions describe it (automated extraction)

- holding ordinance must be reasonable exercise of city’s police power, meaning ordinance must directly promote the general health, safety, welfare, or morals, and must have a "real and substantial" relation to such purpose

## Opinion text

On Motion for Rehearing
POPE, Justice.
City, in its motion for rehearing, concedes, arguendo that Section 10(b) of its ordinance may contain inadequate standards as we have held. It urges, however, that we should excise the words “contemplated or planned,” under the severability clause of the ordinance, and thus save the section. In our opinion this would amount to such a change in the purpose manifested by Section 10(b) of the ordinance as to constitute new legislation on our part.
We must bear in mind that the City has already granted a franchise, and that City is now seeking by force of its police power to limit that franchise. We have held that a City may exercise its police powers. We have further held that the ordinance is indefinite in its use of the terms “area” and “duplication”. The ordinance gives us no guide or help as to the meaning of those terms. City urges that the term “duplication” embraces the avoidance of ruinous or cut-throat competition. Certainly the ordinance in all its provisions, and the City’s briefs and contention, prior to its motion for rehearing included no such suggestion of a standard. Moreover, the record, in fact, shows that City has eighty-six per cent of the customers and receives eighty-three per cent of the revenue from the customers in Garland.
In our original opinion, we quoted briefly from City of Tukwila v. City of Seattle, 68 Wash.2d 811 , 414 P.2d 597 (1966). We said that Sections b, e and k did not state a reasonable standard aimed at protecting the safety or welfare of the public. It was not intended to limit a City’s exercise of police powers to those factors only, and of course, police powers extend to the reasonable protection of the public health, safety, morals or welfare. City of Tukwila, however, well illustrates the point in question. In that case, the City sought to avoid duplication and to cut down upon franchise powers it had previously granted by resort to public safety as the basis for the exercise of police power. It was in that context, that the court wrote to explain why some safety standard needed to be included in the ordinance:
“This case, however, does not involve legislation designed to increase the safety factors or limit the dangers. It does not involve an electrical safety code, nor prescribe minimal standards for equipment, construction and safety devices but, instead prohibits the exercise of the franchise in a substantial area of the franchise territory. It prohibits rather than protects. * *
We should have quoted instead of merely citing Mr. Justice Brennan’s opinion in Weiner v. Borough of Stratford, 15 N.J. 295 , 104 A.2d 659 (1954). In that case, the Borough conditioned the grant of a business license upon compliance by the licensee with safety laws and ordinances, *533 but otherwise imposed no standard for the exercise of discretion. The court recognized, as we do, that a city may enact policing ordinances for the protection of the public health, safety, morals, and welfare; but struck down the ordinance in question, holding:
“ * * * However, unless the provisions of a licensing and regulatory ordinance vesting discretion in licensing officials to grant or deny a license provide adequate standards to govern the deliberations of the officials having the discretionary power, the provisions must be struck down as utterly void. * * * ”
The term “area” is equally indefinite. It could mean the entire city. In Davis v. City of Lubbock, 160 Tex. 38 , 326 S.W.2d 699, 713-715 (1959), this court discussed the legislative standards set for the terms “slum area” and “blighted area”. The emphasis of the legislation was, of course, upon the condition; but the terms were attacked as too vague. This court held they were not too vague because the area could be identified by conditions which were clearly stated in Section 4 of Article 12691-3. Vern.Tex.Civ.Stats. Davis v. City of Lubbock carefully points out the several legislative standards included in the statute. ■
The term “area” is discussed in Hardin v. Kentucky Utilities Co., 390 U.S. 1 , 88 S.Ct. 651 , 19 L.Ed. 787 (1968). The Supreme Court did not discuss the validity of the statute which used the term, since the statute had stated a standard in the context of the purpose of the legislation and the question was apparently not raised. The term “area” was used in the 1959 Tennessee Valley Authority Act. 16 U.S.C. § 831n-4(a). In limiting the territory which TVA could serve, the Act stated a standard for the term “area”. Section 831n-4 in part provides:
“* * * the Corporation [Tennessee Valley Authority] shall make no contracts for the sale or delivery of power which would have the effect of making the Corporation or its distributors, directly or indirectly, a source of power supply outside the area for which the Corporation or its distributors were the primary source of power supply on July 1, 1957, and such additional area extending not more than five miles around the periphery of such area as may be necessary to care for the growth of the Corporation and its distributors within said area: (Emphasis added)
(( * * *
“Nothing in this subsection shall prevent the Corporation or its distributors from supplying electric power to any customer within any area in which the Corporation or its distributors had generally established electric service on July 1, 1957, and to which electric service was not being supplied from any other source on the effective date of this Act. (Emphasis added)
The rights of one who has been granted a franchise and the limitations upon the power to impair those contractual rights are further discussed in City of Baird v. West Texas Utilities Co., 174 S.W.2d 649 (Tex.Civ.App.1943, writ ref.); Alabama Power Co. v. City of Guntersville, 236 Ala. 503 , 183 So. 396 , 119 A.L.R. 429 (1938); Tacoma v. Boutelle, 61 Wash. 434 , 112 P. 661, 665 (1911); 1 Pond, Public Utilities, Sec. 119, p. 292 (1932).
City of Garland’s motion correctly states that we were in error in our statement that the Company relied upon Mayor of City of Houston v. Houston City St. Ry. Co., 83 Tex. 548 , 19 S.W. 127 (1892), and Article 1, Section 19 of the Texas Constitution. The City cited us to the case and the case discussed Article 1, Section 19, Texas Constitution.
The motion for rehearing is overruled.
CALVERT, C. J., dissenting joined by STEAKLEY, J.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9675252. Public record. Not legal advice.