Beyer v. Templeton

• Decision Date: 07 November 1947
• Docket Number: No. 13850.,13850.
• Citation: 208 S.W.2d 692
• Parties: BEYER et al. v. TEMPLETON, County Judge, et al.
• Court: Texas Court of Appeals

Page 692

208 S.W.2d 692

BEYER et al. v. TEMPLETON, County Judge, et al.

No. 13850.

Court of Civil Appeals of Texas. Dallas.

November 7, 1947.

On Rehearing November 28, 1947.

Second Rehearing Denied February 20, 1948.

Appeal from District Court, Dallas County; W. L. Thornton, Judge.

Action by George C. Beyer and others against Al Templeton, County Judge of Dallas County, and the City of Dallas, for a writ of mandamus to compel respondent judge to canvass the votes at, and announce the result of, an election to determine whether a territory known as Honey Springs should be incorporated under the commission form of government, and for an injunction against enforcement of an ordinance of respondent city annexing such territory. From a judgment sustaining respondents' plea in abatement and motion to dismiss and dismissing the action, plaintiffs appeal.

Affirmed.

Frank Cusack, of Dallas, for appellants.

H. P. Kucera, City Atty., Robert L. Lattimore, Asst. City Atty., Will R. Wilson, Jr., Dist. Atty., and Philip Silverberg, Asst. Dist. Atty., all of Dallas, for appellees.

LOONEY, Justice.

Appellants, resident citizens, property owners and qualified voters within the territory known as Honey Springs, in their individual capacities brought this action seeking a writ of mandamus to compel Honorable Al Templeton, County Judge of Dallas County, to canvass the votes and announce the result of an election held to determine whether or not the Town of Honey Springs should be incorporated under the Commission form of government; also to enjoin the City of Dallas from enforcing its ordinance No. 3973 by means of which the City sought to annex the territory known as Honey Springs; the contention of appellants being that the ordinance and the attempt to annex the territory were unauthorized and void. Appellees answered fully, among others filed a plea in abatement and a motion to dismiss on the grounds (1) that on December 18 1946, the County Judge having revoked the order for the election issued on the previous day before it was acted upon, the election held thereunder was without authority and void; furthermore, that the County Judge was without authority to order the same, for reasons hereinafter stated; and (2) that the suit was a collateral attack upon the ordinance of annexation adopted by the City which was a valid municipal act authorized by law or color of law. The case was submitted to the court without a jury on an agreed statement of facts applicable both to the merits as well as to the dilatory pleas. The court sustained the dilatory pleas and dismissed the suit; hence did not pass upon the merits of the case. However, this appeal brings up for review the entire case.

The material facts giving rise to this litigation, including the original acts of incorporation, the efforts of citizens to abolish same, the proceedings pursued by the City of Dallas to annex the territory, the quo warranto suit against the City of Honey Springs, the judgment of ouster rendered therein, and the efforts of citizens of the Honey Springs territory (appellants herein) to re-incorporate, are epitomized as follows: In the year 1937, the territory known as Honey Springs was sought to be incorporated under chapter 11, Art. 1133, R.C.S. and in 1945, by ordinance, the City accepted the provisions of Art. 961, R.C.S., thus attempting to enlarge its powers. On February 9, 1946, the County Judge of Dallas County called an election under Art. 1261, R.C.S., for the purpose of abolishing the corporation; on February 20, 1946, the election was held and the proposition abolishing the corporation was carried. In that status, on February 27, 1946, the City Council of the City of Dallas passed its ordinance No. 3973 on its first reading, annexing the territory comprising the Town of Honey Springs. On March 28, 1946, there was filed with the City of Dallas a petition by about one-hundred and twenty-one property owners and electors of the territory of Honey Springs (presumably a majority in the absence of any showing or contention to the contrary), requesting the City of Dallas to vote to its final passage its ordinance No. 3973. Thereafter, on May 29, 1946, a suit was filed in a District Court of Dallas County (the City of Dallas not being a party) in the nature of a quo warranto proceedings questioning the corporate existence of the City or Town of Honey Springs, which, on September 13, 1946, resulted in a judgment of ouster, thus terminating its corporate existence for all purposes. The quo warranto suit having been appealed to this Court, on January 17, 1947, we affirmed the judgment of the court below and thereafter the Supreme Court refused an application for writ of error (N.R.E.). See report of the case, Richardson et al. v. State, Tex.Civ.App., 199 S.W.2d 239. On September 25, 1946, after the judgment of ouster was rendered, the City of Dallas passed its ordinance No. 3973 on its second reading, and on December 18, 1946, finally passed the same on its third reading, annexing said territory.

The record discloses that on December 17, 1946, Al Templeton, County Judge of Dallas County, upon the petition of residents of the territory of Honey Springs, ordered an election to determine whether or not the said City of Honey Springs should be re-incorporated, but on the next day, December 18, 1946, having ascertained the facts in regard to the status of the territory in question, that is, that by ordinance the City of Dallas had annexed the same, the County Judge revoked his previous order calling the election, on the ground that he was without jurisdiction or authority, that the City of Dallas had exclusive jurisdiction over the territory from the time of the passage of its ordinance on February 27, 1946.

Notwithstanding the revocation of the order of election issued by the County Judge, an election was held for the re-incorporation of the territory of Honey Springs which apparently received a majority vote, and on January 26, 1947, returns were made of the election to the County Judge of Dallas County; however, on the 3rd of February, 1947, the County Judge entered an order refusing to make any further orders in regard to said election and presented in writing his reasons for canceling the election order of December 17, 1946, as hereinbefore stated.

Appellants urge two points of error as follows: (1) That the trial court improperly sustained appellees' plea in abatement and in dismissing the suit; (2) that the trial court erroneously failed to hold as void ordinance No. 3973 of the City of Dallas, annexing the Honey Springs territory, and, in this connection, appellants concede that unless the ordinance is void they are without capacity to bring this suit; hence, that the sole question presented is, whether or not ordinance No. 3973 is void.

Appellees counter with the following: (1) That the court did not err in sustaining appellees' plea in abatement and in dismissing the suit, in that, on December 18, 1946, the County Judge of Dallas County revoked his order of the day before calling an election for the purpose of re-incorporating the Honey Springs territory; thereby vitiated and destroyed the right of the voters of said territory to conduct a valid election; (2) that the appellants were improper parties, in that, the instant case is a collateral attack upon an ordinance valid on its face, enacted by a duly constituted municipal corporation; hence appellants were not authorized to raise the sole question as to whether or not the territory known as the Town or City of Honey Springs was properly brought within the City of Dallas. Appellees also agree with appellants that the question whether or not ordinance No. 3973 of the City of Dallas is void, necessarily is determinative of the entire controversy.

In reviewing the quo warranto suit heretofore mentioned, we held, among other things, that prior to and at the time of the rendition of the judgment of ouster, Honey Springs, although illegally incorporated because containing excess territory, nevertheless was invested with a de facto status. Richardson v. State, Tex.Civ.App., 199 S. W.2d 239, 245; see also Wilson v. Carter, Tex.Civ.App., 161 S.W. 411, 412. We also held that the proceeding to abolish the corporation of Honey Springs was void because dissolution was attempted under Art. 1261, whereas Art. 1241 should have been pursued. So these questions will be treated as settled by our previous holdings.

Did the action of Judge Templeton, in rescinding his order of the previous day for an election to incorporate the Honey Springs territory, effectuate its purpose? If so, the election held January 25, 1947, was wholly without authority and void. It is obvious, we think, that, in ordering the election, the County Judge, of necessity, had to exercise a judicial discretion; among other things, to determine whether the territory sought to be incorporated was unincorporated and contained the requisite number of inhabitants. On December 18, 1946, the day after the County Judge issued the order calling the election, having ascertained that the City of Dallas, by its ordinance No. 3973, previously had annexed or at least acquired jurisdiction for the purpose of annexing the territory sought to be incorporated, the Judge revoked his order of the day before. After the purported election was held under the rescinded order, the proposition having received a majority of the votes, Judge Templeton was called upon for an order declaring the result of said election. Refusing this request, Judge Templeton entered an order in extenso stating the reason for his action in revoking the order for the election and in refusing to announce the result of the said election; gave a short history of the original incorporation of Honey Springs, its dissolution, the quo warranto suit in which it was ousted of all municipal functions; and, among other things pertinent to the question under consideration, said: "At...