City of Fort Worth v. State, 14667.

• Decision Date: 02 February 1945
• Docket Number: No. 14667.,14667.
• Citation: 186 S.W.2d 323
• Parties: CITY OF FORT WORTH v. STATE ex rel. RIDGLEA VILLAGE.
• Court: Texas Court of Appeals

186 S.W.2d 323

CITY OF FORT WORTH v. STATE ex rel. RIDGLEA VILLAGE.

No. 14667.

Court of Civil Appeals of Texas. Fort Worth.

February 2, 1945.

Rehearing Denied March 16, 1945.

Appeal from District Court, Tarrant County; George L. Davenport, Judge.

Suit in the nature of quo warranto by the State of Texas, on the relation of Ridglea Village, against the City of Fort Worth to determine the validity of the annexation by the City of Fort Worth of Ridglea Village area. From an adverse judgment, defendant appeals.

Reversed, and judgment rendered for defendant.

R. E. Rouer and Heard L. Floore, both of Fort Worth, for appellant.

Marvin H. Brown, Jr., Dist. Atty., of Fort Worth, for appellee State.

J. A. Gooch, Robert C. Pepper, and Burney Braly, all of Fort Worth, for relator Ridglea Village.

McDONALD, Chief Justice.

This suit is in the nature of a quo warranto proceeding, attacking the annexation by the City of Fort Worth of an area described in the case as Ridglea Village.

During 1944 the City of Fort Worth submitted to the qualified voters of Fort Worth several amendments to the city charter, one of which amendments changed the boundaries of the city so as to include the Ridglea area. At about the same time, the Ridglea area was incorporated, under the general laws, as a municipal corporation under the name of Ridglea Village.

We have for decision two questions. The first is whether the annexation proceedings were in conformity with the applicable laws, and the second is whether the annexation proceedings were prior in point of time to the incorporation of Ridglea Village.

It seems not to be disputed that the proceedings to amend the charter were in compliance with the laws governing charter amendments, but the question is whether, in view of Article 1182a, Vernon's Annotated Civil Statutes, Acts 1929, 41st Leg., p. 251, ch. 110, annexation of the territory in question could be effected through the process of amending the charter of the City of Fort Worth. Appellant contends that it was authorized to annex the territory by amending its charter. Appellee contends that the territory could be annexed only by following the procedure provided in Article 1182a.

It is settled that a city having a population of more than five thousand could, prior to the enactment of Article 1182-a, annex territory by amending the charter of the city, and that in such case it was not required to submit the question of annexation to the inhabitants of the territory proposed to be annexed. Cohen v. City of Houston, Tex.Civ.App., 176 S.W. 809, writ of error refused; Cohen v. City of Houston, Tex.Civ.App., 205 S.W. 757, writ of error refused; Eastham v. Steinhagen, 111 Tex. 597, 243 S.W. 457.

Section 1 of Article 1182a reads as follows: "Whenever the City Commission of any City within this State, acting under and by virtue of any Charter adopted under Home Rule Amendment Article 11, Section 5, of the Constitution of this State, shall initiate or order an election for the extension of the territorial limits of said city, to be submitted to the legally qualified property tax paying voters residing within the territorial limits of said city, to determine whether or not the adjacent territory desired to be annexed shall be included within the territorial limits of said city, said City Commissioners shall at the same time order an election to be held at some convenient place within said city limits, so that the legally qualified property tax paying voters residing in the territory contiguous to said city and proposed to be annexed, may appear and cast their vote for the purpose of determining whether a majority of the legally qualified property tax paying voters residing in said territory proposed to be annexed, favor the annexation of said territory proposed to be annexed."

The full text of the Act, with the caption and emergency clause, is set out in the footnote.¹

We must determine whether Article 1182a took away from cities of more than five thousand inhabitants the right to annex territory by charter amendment, which, under the above cited decisions, they theretofore had possessed.

Article 1182a does not expressly repeal any designated statutes, but Section 5 repeals all conflicting laws and parts of laws. Appellant argues that Article 1182a is merely cumulative—that it provides an additional method of annexation, but does not abolish the method of annexation by charter amendment.

From the statements found in 39 Tex.Jur., pp. 130, 131, and the authorities there cited, it appears that there are two kinds of repeals of statutes, express and implied. Express repeals may be general or special. A general repeal declares, in substance, that all acts and parts of acts in conflict with the new enactment are repealed. A general repealing clause is effective to repeal prior enactments to the extent that they are inconsistent with, or repugnant to, the terms of the later statute. The repealing clause in Article 1182a is general. Is the former rule allowing Home Rule cities to annex territory by charter amendment inconsistent with, or repugnant to, the method of annexation provided by Article 1182a?

The so-called Home Rule amendment of the Constitution, Section 5 of Article 11, Vernon's Ann.St., reads in part as follows: "Cities having more than five thousand (5000) inhabitants may, by a majority vote of the qualified voters of said city, at an election held for that purpose, adopt or amend their charters, subject to such limitations as may be prescribed by the Legislature, and providing that no charter or any ordinance passed under said charter shall contain any provision inconsistent with the Constitution of the State, or of the general laws enacted by the Legislature of this State; * * *."

As declared in the decisions above cited, the power to adopt and to amend charters of this class of cities was by this amendment transferred from the Legislature to the cities themselves, and, it appears from the express language of the amendment, to the qualified voters of the cities. To put it another way, the power to adopt or amend a charter is now vested in the qualified voters of a city, but the method and manner of holding an election for such purpose may be determined by the Legislature.

It will be noted that the election provided for in Article 1182a is not to be submitted to the qualified voters, but to the legally qualified property taxpaying voters, a more limited group. It is not to be presumed that the Legislature intended, by the enactment of Article 1182a, to attempt to limit the vote on a charter amendment to the legally qualified property taxpaying voters, in the face of the constitutional provision above quoted, which vested such right in all of the qualified voters of the city. Article 1182a cannot be accepted as evidence of a purpose on the part of the Legislature to require the consent of the inhabitants of the territory to be annexed in all cases of annexation, because it expressly continues in force the right in certain cases to annex territory by ordinance of the city. And the same Legislature, at a called session later held, expressly provided that certain cities might annex territory by the charter amendment method upon vote of the qualified voters of the city. Article 1265, Vernon's Ann.Civ.St., Acts 1929, 41st Leg., 2nd C.S., p. 131, Ch. 63. Clearly there is no general public policy in Texas, either by legislative enactment or by judicial decision, to the effect that territory cannot be annexed without the consent of the inhabitants of such territory. There is nothing in Article 1182a to indicate an intent on the part of the Legislature to establish a new general policy in this respect. When the caption and the emergency clause, as well as the second and third sections, of Article 1182a are examined, it seems reasonable to believe that the chief purpose of the act is to provide a method of equalizing taxes in cases where a city annexes territory lying within a water improvement district, or a district of like nature. When we consider the entire act, together with the caption and the emergency clause, we cannot believe that the Legislature intended by its enactment to abolish the established method of annexing territory by charter amendment. In other words, Article 1182a appears to us to be cumulative rather than exclusive in its operation. It seems to provide a method whereby the city may submit to its property taxpaying voters the question whether the city will annex the territory in question and assume its indebtedness, and for the purpose of paying such indebtedness will levy and collect a tax against all the property within the city limits; and that, where such procedure is followed, the question of annexation and adjustment of taxes must also be submitted to the property taxpaying voters in the territory proposed to be annexed. We do not believe that the Legislature, in providing for the procedure adaptable to this limited kind of situation, intended to do away with the right of a Home Rule city to annex territory by amending its charter upon the vote of all its qualified voters. If the Legislature had intended such a result,...