"In the above-styled cause pending in this court, on appeal from an order of the district court of Harris county, granting appellees a temporary injunction, we deem it advisable, because of the public importance of the issues involved and the desirability of obtaining a final decision of the questions at an early date, to certify for your determination the questions hereinafter set out, which arise upon the following statement of the record:
"This suit is brought in the name of the city of Magnolia Park, a municipal corporation, organized as such under the general laws of this state providing for the incorporation of cities and towns, and was brought by four of the five members of the board of aldermen of said city, who sue both in their official capacity and as individuals. The city of Houston and the mayor and commissioners of said city are the defendants in the suit. The purpose of the suit is to enjoin the defendants from extending the boundaries of said city so as to include the city of Magnolia Park, under authority claimed by the defendants as the result of an election held on April 13, 1925, under an ordinance of the board of commissioners of said city, to determine whether the charter of the city should be amended by extending the boundaries of the city so as to include the city of Magnolia Park and other adjacent territory. The specific relief sought by the suit was an injunction restraining the city of Houston from performing or committing the following acts:
"`(a) From entering or causing to be entered upon the records of the city of Houston an order declaring the aforesaid amendment relating to the extension of the boundaries of the city of Houston aforesaid, which boundaries include the city of Magnolia Park as aforesaid, adopted.
"`(b) From extending the boundaries of the city of Houston as provided in said amendment so as to include the city of Magnolia Park.
"`(c) From defining the boundaries of the city of Houston so as to include within said boundaries the territory comprising plaintiff city of Magnolia Park.
"`(d) From assuming control and authority and exercising jurisdiction and dominion as a municipal corporation over the territory comprising the city of Magnolia Park, as it will if said amendment is put into force and effect.
"`(e) From ousting from office or otherwise interfering with or molesting the duly elected, qualified, and acting officers of the city of Magnolia Park in the exercise of their official duties.
"`(f) From taking possession of the public records of the said city of Magnolia Park.
"`(g) From taking possession of and converting to its own use the property, both real, personal, and mixed, owned and possessed by the city of Magnolia Park.
"`(h) From taking any steps or doing any act, the effect of which will be to abolish and destroy the city of Magnolia Park as a municipal corporation and depriving it of its corporate rights and privileges.'
"The grounds upon which the right to the injunction is claimed are that the 20 days' notice of the intention of the board of commissioners to pass the ordinance submitting the proposed amendment of the city charter to a vote of the electors of the city was not given as required by article 1096b of the statutes of this state (Vernon's Sayles' Ann. Civ. St. 1914), and therefore said ordinance and the election held thereunder are void; and that the act of the Legislature upon which the right of the city of Houston by a vote of the electors of that city to extend its boundaries so as to include the municipality of Magnolia Park depends (Acts 37th Leg. c. 101 [articles 773a to 773d, Vernon's Ann. Civ. St. Supp. 1922]) is unconstitutional and void for the following reasons:
"`First. The act, though general in form, is a special and local law.
"`Second. It was passed at the first called session of said Legislature, and is not a subject specified in the Governor's proclamation convening said Legislature, as a subject to be legislated upon, nor is it contained as a subject of legislation in any subsequent message of the Governor to said called session of the Legislature.
"`Third. By section 5 of article 11 of the Constitution, known as the Home Rule Amendment, cities of more than 5,000 population are given the constitutional right of adopting and amending their own charters, with such limitations as the Legislature may prescribe, and Magnolia Park, having a population of more than 5,000 at the time of the attempted amendment of the charter of Houston, extending its boundaries so as to include said Magnolia Park, the act of the Legislature aforesaid is unconstitutional in its application, in that it would authorize the city of Houston to deny and deprive the city of Magnolia Park its constitutional right under section 5, art. 11, of the Constitution, to adopt and amend its own charter.'
"The defendants answered by plea in abatement and numerous exceptions, the nature of
which are not material in the decision of the questions herein certified. They also denied generally each and all of the allegations of plaintiffs' petition, and specially denied the allegations of the petition that the Act of the Thirty-Seventh Legislature, Called Session, before mentioned, was not upon a subject included in the proclamation of the Governor convening the Legislature nor in any subsequent message of the Governor to the Legislature at said special session, and aver that the subject of the act was duly presented to the Legislature by the Governor.
"The hearing in the court below was upon the sworn pleadings and affidavits offered by the plaintiffs.
"The notice of the intention of the board of commissioners to pass the ordinance calling the election was first published on February 20, 1924, and the ordinance was passed on March 11, 1925. Due notice of the election, which was held on April 13, 1925, was given as required by the statute, and the election resulted in a large majority in favor of the proposed amendment to the city charter. No evidence was offered to show whether or not the act of the called session of the Legislature before referred to was included in the proclamation of the Governor or in any message submitted by him to said special session of the Legislature. It was shown that the city of Magnolia Park, which had less than 5,000 inhabitants at the last United States census, now has a population exceeding 10,000.
"The city of Magnolia Park has not adopted or amended its charter under the provisions of the Home Rule Amendment to our state Constitution and the Enabling Act passed thereunder by the Legislature.
"Upon this statement of the record, we respectfully certify for your decision the following questions:
"First. Is the provision for 20 days' notice of the intention of the city commissioners to pass an ordinance calling an election to determine whether the charter of the city shall be amended so as to extend the boundaries of the city, mandatory and jurisdictional, without compliance with which the order calling the election and the election held thereunder should be held void?
"Second. Is the jurisdiction of the board of commissioners to determine the fact of notice, upon which its jurisdiction to pass an ordinance rests, final and conclusive in a proceeding of this kind?
"Third. Is the Act of the Thirty-Seventh Legislature, Special Session, c. 101, a special or local act, requiring notice of intention to apply therefor as provided in section 57, art. 3, of the state Constitution?
"Fourth. Can the courts inquire into the questions of whether such notice was given or whether the subject of the act was included in the proclamation of the Governor convening the Legislature or in a message submitted to it?
"Fifth. Is the act mentioned void as to Magnolia Park because in contravention of section 5, art. 11, of the Constitution of this state?
"Justice Graves disagrees with the majority of the court upon the question of the advisability of certifying any of the questions above propounded, and is of opinion that the judgment of the trial court should be affirmed, and desires that his refusal to join in the action of the majority certifying these questions be embodied in this certificate, which is accordingly done."
