Beyer v. Templeton

• Decision Date: 16 June 1948
• Docket Number: No. A-1659.,A-1659.
• Citation: 212 S.W.2d 134
• Parties: BEYER et al. v. TEMPLETON et al.
• Court: Texas Supreme Court

212 S.W.2d 134

BEYER et al. v. TEMPLETON et al.

No. A-1659.

Supreme Court of Texas.

June 16, 1948.

Rehearing Denied July 7, 1948.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Suit by George C. Beyer and others against Al Templeton, County Judge, and another for a writ of mandamus to compel respondent judge to canvass votes and announce results of an election and for an injunction against annexation of territory by City of Dallas. Judgment sustaining respondents' dilatory pleas and dismissing the suit was affirmed by the Court of Civil Appeals, 208 S.W.2d 692, and plaintiffs bring error.

Judgment of Court of Civil Appeals affirmed.

Frank Cusack, of Dallas, for petitioner.

H. P. Kucera, City Atty., and Robert L. Lattimore, Asst. City Atty., both of Dallas, for City of Dallas.

Will R. Wilson, Jr., Dist. Atty., and Philip R. Silverberg, Asst. Dist. Atty., both of Dallas, for Al Templeton.

SHARP, Justice.

Suit was brought by George C. Beyer and others, petitioners here, for a writ of mandamus to compel the Honorable Al Templeton, as County Judge of Dallas County, to canvass the votes and announce the result of an election which had been held on January 25, 1947, and which election was to determine whether the town of Honey Springs should be incorporated under the commission form of government; and also to enjoin the City of Dallas from enforcing its ordinance No. 3973, by which it sought to annex the territory of Honey Springs. The case was submitted to the court without a jury on an agreed statement of facts applicable both to the merits and the dilatory pleas. The trial court sustained the dilatory pleas and dismissed the suit. The trial court did not pass upon the merits of the case, but in the appeal to the Court of Civil Appeals the whole case was brought up for review. A majority of the Court of Civil Appeals affirmed the judgment of the trial court. 208 S.W.2d 692.

The territory comprising Honey Springs is contiguous to and adjoins the territory comprising the City of Dallas. The City of Dallas is a municipal corporation, operating as a home rule city by virtue of its charter. The dispute between Honey Springs and the City of Dallas has been the basis of three or more lawsuits. An enumeration of all the material facts in regard thereto would be too lengthy, so they will be summarized.

In 1937 Honey Springs attempted to incorporate under the provisions of Articles 1133 and 971 of Vernon's Annotated Civil Statutes, and thereafter operated as the City of Honey Springs. Its existence as a municipal corporation was not questioned until February 20, 1946, when an election was called by the County Judge of Dallas County to determine whether the City of Honey Springs should be abolished. The result of the election was 168 for dissolution and 72 against. But before the election result could be canvassed, the City of Honey Springs, acting through its agents, filed a suit, styled City of Honey Springs v. Al Templeton, County Judge, in the District Court of Dallas County, seeking to restrain the county judge from declaring the result of the election and declaring the corporation dissolved and the City of Honey Springs abolished. On February 25, 1946, the trial court denied the injunction and dismissed the suit; and thereafter, on February 27, 1946, the county judge entered an order declaring the result of the election and declaring the corporation dissolved and the City of Honey Springs abolished. The City of Honey Springs prosecuted an appeal to the Court of Civil Appeals, where the judgment of the trial court was affirmed, the court holding that the cause was moot, since the only injunctive relief sought by the City of Honey Springs was the prevention of the declaration of the result of the election held on February 20, 1946, and that such declaration had already been made. See City of Honey Springs v. Templeton, Tex.Civ. App., 194 S.W.2d 620, Error Refused, N. R.E.

On February 27, 1946, after the trial court had refused to enjoin the declaration of the result of the election dissolving the corporation and abolishing the City of Honey Springs, the City of Dallas passed its ordinance No. 3973 on its first reading, annexing the territory composing the community of Honey Springs. On March 28, 1946, a petition by 121 property owners and electors of the territory of Honey Springs was filed, requesting the City of Dallas to vote to its final passage its ordinance No. 3973.

The mayor and other officials of the City of Honey Springs continued to enforce the ordinances theretofore enacted by the City of Honey Springs, refused to recognize the legality of the election of February 20, 1946, and contended that the City of Honey Springs was a duly constituted municipal corporation under the laws of the State of Texas. In view of this situation, on May 29, 1946, the State of Texas, acting through the Honorable Dean Gauldin, Dallas County District Attorney, instituted a suit in the nature of quo warranto against said officials, questioning the corporate existence ab initio of the City of Honey Springs, and in the alternative contending that the City of Honey Springs had been abolished pursuant to the statutory election held February 20, 1946. The trial court rendered a judgment of ouster, and the Court of Civil Appeals affirmed the judgment of the trial court, on the ground that the City of Honey Springs had never been legally incorporated. Richardson et al. v. State, Tex.Civ.App., 199 S.W.2d 239, Error Refused, N.R.E.

The City of Dallas in the annexation of the territory of Honey Springs acted under the provisions of Sections 4 and 4a of its charter, and the pertinent portions of said sections read:

"Sec. 4. Additional Territory. Any territory adjoining the present or future boundaries of said city may from time to time in any size or shape desired, be admitted and become a part thereof on application made or written consent given to the City Council by the owner or owners of the land, or, as the case may be, by a majority of the legal voters resident on the land sought to be added. * * *" "Sec. 4(a). As an alternative method of enlarging or extending the corporate boundaries, the City Council shall have the power by ordinance to provide for the alteration and extension of said boundary limits, and the annexation of additional territory lying adjacent to the City, with or without the consent of the territory and the inhabitants annexed. Upon the introduction of any such ordinance in the City Council, it shall be published one time in the newspaper designated as the official newspaper of the City of Dallas, * * *. The proposed ordinance shall not thereafter be finally acted upon until at least thirty (30) days have elapsed after the publication thereof; and upon the final passage of any such ordinance, the boundary limits of the City shall thereafter be as fixed in such ordinance, * * *."

The judgment of the trial court in the case of Richardson et al. v. State, supra, was rendered on September 30, 1946; the judgment of the Court of Civil Appeals was rendered on December 13, 1946; and the action of the Supreme Court in refusing the writ of error was taken April 23, 1947.

During the time the case of Richardson et al. v State, supra, was pending on appeal, the City of Dallas continued to act in the annexation proceedings commenced by the passage of the annexation ordinance on first reading on February 27, 1946. On September 25, 1946, the said ordinance was passed on a second reading; and on December 18, 1946, the City Council of Dallas finally passed the ordinance annexing the Honey Springs territory to the City of Dallas.

Prior to the final passage of the ordinance on December 18, 1946, and after the decision of the Court of Civil Appeals in the case of Richardson et al. v. State, supra, on December 13, 1946, certain property owners in the Honey Springs territory on December 17, 1946, petitioned the County Judge of Dallas County for an election to incorporate a new City of Honey Springs, to be composed of a portion of the territory embodied within the boundaries of the City of Honey Springs which was attempted to be incorporated in 1937; and on the same date the Honorable Al Templeton ordered an election to determine whether the said City of Honey Springs should be incorporated. However, on December 18, 1946, he rescinded this order calling for an election to incorporate the new City of Honey Springs, on the ground that the county court had no jurisdiction to call that election, because exclusive jurisdiction in the annexing proceedings had vested in the City of Dallas. In his order of December 18, 1946, he gave his reasons for rescinding his order made on December 17, 1946, and we quote from the order of recission the following:

"At the time the petition for the election to incorporate the area in question was offered on December 17, 1946, no proof or evidence was offered, and no hearing was had as to whether said property sought to be incorporated was already incorporated for municipal purposes, nor was there any proof that the signatures of said petition constituted 10 per cent of the qualified voters, nor was there any proof of the population of the area, * * * the court was not aware, nor was it made known to him, that the City of Dallas had already, prior to the filing of said petition, instituted and commenced annexation proceedings by ordinance, in accordance with law, to annex all of the area included within the attempted incorporation of 1937 of the Town of Honey Springs, and including all of the area sought to be incorporated by the petition of December 17, 1946, and that the City of Dallas was, on December 17, 1946, then proceeding, and in the course of completing, said annexation. * * * That, by reason thereof, this Court was and is wholly without jurisdiction to entertain said petition of December 17, 1946, to incorporate into a separate municipality a...