City of Deer Park v. State ex rel. Shell Oil Co.

• Decision Date: 24 March 1954
• Docket Number: No. A-4330,A-4330
• Citation: 275 S.W.2d 77,154 Tex. 174
• Parties: CITY OF DEER PARK et al. v. STATE ex rel. SHELL OIL CO. et al.
• Court: Texas Supreme Court

Page 77

275 S.W.2d 77

154 Tex. 174

CITY OF DEER PARK et al. v. STATE ex rel. SHELL OIL CO. et al.

No. A-4330.

Supreme Court of Texas.

March 24, 1954.

Rehearing Denied July 21, 1954.

On Second Motion for Rehearing Jan. 5, 1955.

Rehearing Denied March 2, 1955.

Townsend, Major & Carrigan, Pasadena, Graves, Dougherty & Greenhill, Austin, for petitioners.

Burke Holman, County Atty., R. H. Whilden, Barksdale Stevens, Vinson, Elkins, Weems & Searls, David T. Searls and Jack D. Head, Houston, Moody & Robertson, Dan Moody, Austin, for respondents.

HICKMAN, Chief Justice.

This is a proceeding in quo warranto brought by the State of Texas through the Criminal District Attorney of Harris County on the relation of Shell Oil Company and Shell Chemical Company, hereinafter called respondents, to test the validity of an ordinance passed by the City Council of the City of Deer Park on February 5, 1952, whereby it was sought to annex property of the respondents to the city. The trial court decreed the ordinance to be invalid and permanently enjoined the members of the City Council and their successors in office from enforcing same and from taking any further steps in the future to include the property of the respondents within the territorial limits of the City. The Court of Civil Appeals struck from the judgment the provision enjoining the city from taking any action in the future to annex the property of respondents, and, as thus reformed, affirmed the trial court's judgment. Tex.Civ.App., 259 S.W.2d 284.

Deer Park was incorporated on December 17, 1948, under the provisions of Chapter 11 of the Revised Statutes, entitled 'Towns and Villages', Article 1133 et seq., as amended, Vernon's Ann.Civ.St. art. 1133 et seq. Its area at that time was 448 acres and its population approximately 800. Article 961, Revised Statutes, provides, in substance, that a town or village accepting the provisions of Title 28 relating to cities and towns in the manner therein specified 'shall be known as a city or town, subject to the provisions of this title relating to cities and towns, and vested with all the rights, powers, privileges and immunities and franchises therein conferred.'

At a regular session of the City Council on February 21, 1949, it was voted that Deer Park should accept 'the provisions of Chapters One to Ten, inclusive, Title 28, Vernon's Revised Civil Statutes of the State of Texas; said chapters beginning with Article 961 and ending with Article 1132 of said statutes.' Thereafter, on September 2, 1950, the city extended its limits by annexing an additional 315 acres. The ordinance under attack in this suit was passed on February 5, 1952. By that ordinance the city undertook to annex approximately 1050 acres of land, not exceeding one-half mile in width, adjoining the city on the north, south, and west. Some of that property belonged to respondents. In passing the ordinance the city proceeded under the provisions of Article 974, Revised Statutes, which authorizes any city incorporated under or accepting the provisions of Title 28 to annex adjacent territory to the extent of one-half mile in width. Whether or not Deer Park had the authority to annex territory under the terms of that Article depends upon whether it validly accepted the provisions of Title 28, as provided in Article 961.

The first question for decision, therefore, is whether or not Deer Park validly accepted the provisions of Title 28 and thereby became vested with the powers of a city. We find it unnecessary to consider and decide the questions ably discussed in briefs pro and con on the regularity of the proceedings of the City Council in accepting the provisions of Title 28, for the reason that, since the application for writ of error was granted by this court, the Attorney General has called our attention to a validating act of the 51st Legislature at its First Called Session in 1950, Chapter 22, Acts 51st Legislature, First Called Session, Chapter 22, page 85, carried forward in Vernon's Texas Civil Statutes as Article 974d-2. In general the Act validates all cities and towns of 5,000 inhabitants or less which have functioned as incorporated cities or towns since the date of their attempted incorporation. Section 2 of the Act validates the boundary lines of such cities and towns covered by the original incorporation or any subsequent extension thereof, and Section 3 validates all governmental proceedings of such cities and towns. That Act removed any question as to the validity of the proceedings in connection with the acceptance of the provisions of Title 28 under Article 961 or as to the boundary lines of Deer Park as they existed on the effective date of the Act. It is unnecessary to discuss that Act in detail, for the reason that respondents do not question in their reply brief and did not question in oral argument that the Act must be given that effect. It follows that, if there were any irregularities in the proceedings for changing the status of Deer Park from a town or village to that of a city, they have been cured by the validating act. We shall, therefore, rest our decision of this question upon that Act without determining whether, independent of the Act, we would hold the proceedings valid.

This brings us to a consideration of a later validating act. The 53rd Legislature at its Regular Session in 1953 enacted Chapter 177, carried forward by Vernon's Texas Civil Statutes as Article 966c, reading in part as follows:

'Section 1. All cities and towns in Texas of five thousand (5,000) inhabitants or less, heretofore incorporated or attempted to be incorporated under any of the terms and provisions of the General Laws of the State of Texas, form of government, and mission form of government, and which are now functioning or attempting to function as incorporated cities and towns, are hereby in all respects validated as of the date of such incorporation or attempted incorporation; * * *.

'Sec. 2. The boundary lines of all such cities and towns, including both the boundary lines covered by the original incorporation proceedings any by any subsequent extension thereof, prior to the effective date of this Act, are nereby in all things validated.

'Sec. 3. All governmental proceedings and acts performed by the governing bodies of such cities and towns and all officers thereof since their incorporation or attempted incorporation, are hereby in all respects validated as of the respective date of such proceedings and acts.

'Sec. 4. The provisions of this Act shall not apply to any city or town now involved in litigation questioning the legality of the incorporation if such litigation is ultimately determined against the legality thereof.'

This Act became effective after the passage of the annexing ordinance under attack. Obviously, if the Act is effective as applied to the City of Deer Park, the ordinance has been validated and the territory involved in this suit legally annexed to the city. Respondents contend that we cannot rest our decision upon the provisions of that Act because no point of error was assigned with respect thereto, either in the motion for rehearing in the Court of Civil Appeals or in the application for writ of error. They further contend that the Act cannot be given retroactive effect to destroy the vested rights created by the prior judgment in this case. Both of those questions are answered contrary to the contention of respondents by three opinions by the Commission of Appeals released by this court on the same date, January 21, 1931. The cases are: Brown v. Truscott Independent School District, 34 S.W.2d 837; Desdemona Independent School District v. Howard, 34 S.W.2d 840; and Pyote Independent School District v. Dyer, 34 S.W.2d 578. In the first two cases the validating act was passed after they were decided by the Court of Civil Appeals, and in the other case the validating statute was called to the attention of this court during the pendency of a motion for rehearing. Those cases definitely hold that this court takes judicial knowledge of validating acts of the Legislature which become effective during litigation involving the validity of cities or school districts or of governmental acts thereof, without any assignment in the briefs relating thereto. Courts cannot close their eyes to valid statutes, even though the briefs of parties do not refer to them. And, further, those cases are authority for the proposition that until the litigation is finally terminated by this court, no rights have vested which take from the Legislature the authority to pass a validating act.

It is also contended that the validating statute of 1953 is inapplicable in this case because the City of Deer Park, on the effective date of the Act, was involved in litigation questioning the legality of its incorporation. It is not argued that this litigation questions the legality of the original incorporation. The argument is that Section 4, providing that the statute should not apply to any corporation involved in litigation questioning the legality of its incorporation, if such litigation is ultimately determined against the legality thereof, relates not only to the original incorporation but as well to subsequent annexation of territory. We cannot adopt that view. To annex territory to a city is not to incorporate the city. The statute validated governmental proceedings and acts, and certainly annexation of territory and the fixing of boundaries thereof are governmental proceedings and acts.

Finally, it is argued that the caption of the 1953 validating statute is insufficient to give notice that one of its purposes was to validate annexation proceedings and boundary lines of territory brought into the city by annexation. The caption reads in part as follows:

'An Act validating the incorporation of all cities and towns of five thousand (5,000) inhabitants or less, heretofore incorporated or attempted to be incorporated under the General Laws...