City of Houston v. State, 8138.

• Decision Date: 01 December 1943
• Docket Number: No. 8138.,8138.
• Citation: 176 S.W.2d 928
• Parties: CITY OF HOUSTON et al. v. STATE ex rel. CITY OF WEST UNIVERSITY PLACE et al.
• Court: Texas Supreme Court

176 S.W.2d 928

CITY OF HOUSTON et al. v. STATE ex rel. CITY OF WEST UNIVERSITY PLACE et al.

No. 8138.

Supreme Court of Texas.

December 1, 1943.

Rehearing Denied February 2, 1944.

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

Quo warranto suit on the relation of the City of West University Place, through its elected officers and others, against the City of Houston and its elected officials. A judgment in favor of petitioner was affirmed by the Court of Civil Appeals, 171 S.W.2d 203, and defendants bring error.

Judgments of the Court of Civil Appeals and of the trial court reversed and judgment rendered in favor of petitioner.

Lewis W. Cutrer, City Atty., Lester Settegast and Harry G. Dippel, Asst. City Attys., and Ernest H. Folk, all of Houston, for plaintiffs in error.

Gerald C. Mann, Atty. Gen., and Dan W. Jackson, Crim. Dist. Atty., A. J. Lamonte, W. Ray Scruggs, and Harvey T. Fleming, all of Houston, for defendants in error.

TAYLOR, Commissioner.

This is a quo warranto suit brought on the relation of the City of West University Place through its elected officers (appearing in both their official and tax-paying capacities) and two taxpaying citizens of the unappropriated territory in question against the City of Houston and its elected officials in which plaintiffs seek to have Houston's ordinance purporting to annex said territory declared invalid. The trial court instructed a verdict in favor of plaintiffs and against the defendants, nullifying the ordinance. The Court of Civil Appeals affirmed the judgment. 171 S.W.2d 203.

The writ was granted upon the City of Houston's point alleging that the Court of Civil Appeals was in error in holding that the City could not annex territory adjacent to it if the result of such annexation was to preclude respondent from further expanding its boundaries. Upon mature consideration we hold that the tentative opinion which we entertained when the writ was granted, was correct.

We accept as correct for present purposes the map accompanying (171 S.W.2d 205) the opinion of the Court of Civil Appeals. It together with the description and the Court's discussion thereof correctly designate the territory involved, and the location thereof with respect to the two municipalities. In the view we take of the case it is unnecessary to discuss the technical proceedings, respectively, of the municipalities looking to the annexation of the territory further than will be hereafter stated in the matter of Houston's prior jurisdictional right over same for annexation purposes.

The territory in question was adjacent to both cities and under their respective charter powers was subject by constitutional and statutory right to annexation by either. Vernon's Ann.St.Const. Art. 11, sec. 5; Vernon's Tex.Civ.St. Art. 1175, sec. 2. The cited article of the constitution is the Home Rule Amendment and the cited section of the statutory article is the section of the enabling act passed pursuant to the provisions of article 11. The purpose of the people in adopting the Home Rule Amendment is thus declared by this Court speaking through Commissioner Powell in response to certified questions in City of Houston v. City of Magnolia Park, Tex.Com.App., 276 S.W. 685, 689: "It was the purpose of the people to bestow upon the cities coming under the Home Rule Amendment `full power of local self-government.' This was the declared purpose of the Enabling Act passed in January, almost immediately after the new home rule section of the Constitution had been adopted. * * * It was the intention of the citizenship of this state to give to cities the right to determine for themselves what kind of charter they should live under. Until their population exceeded 5,000, they were subject to the general law in their incorporation. After that, they could avail themselves of the Home Rule Amendment and change their charters at their pleasure."

Section 2 of the enabling act provides that cities adopting a charter or amendment under the Home Rule Amendment shall have "the power to fix the boundary limits of said city, to provide for the extension of said boundary limits and the annexation of additional territory lying adjacent to such city" in accordance with its charter rules. Houston's charter (Sec. 2b) provides that its governing body "shall have power by ordinance to fix the boundary limits" of the city and to annex "additional territory lying adjacent to said city." The only limitation on the city's power to annex additional territory is that it shall be adjacent thereto and not a part of any other municipality, as will subsequently be shown.

The Court of Civil Appeals correctly stated in its opinion that it was not concerned with the motives of the governing body of the City of Houston in undertaking to annex the territory involved, and correctly pointed out that home rule cities in altering their boundaries must observe the procedure prescribed by the enabling act. No question was made by the Court of the city's method of procedure in the enactment of the annexation ordinance in the present case. Houston was in the process of passing its ordinance annexing the territory in question when respondent, West University Place, began proceedings looking to the annexation of the same territory, along with other territory. The Court of Civil Appeals held in this connection that the City of Houston by annexing the territory (which lay adjacent to both cities) would destroy the right of West University Place (also a home rule city) to thereafter annex additional territory, inasmuch as the result would be to complete the encirclement of that city; and for this reason declared the annexing ordinance void. The Court relied upon the Magnolia Park case, supra, as affording a basis for such holding. We cannot agree either with the Court's holding that the ordinance was invalid or with its view of the case relied upon.

The holding in the Magnolia Park case, insofar as it has any bearing upon the present case, was that one municipality could not absorb by annexation another municipality of equal dignity, and thereby destroy its right of self government guaranteed to it under the Home Rule Amendment. While it is true that the result of the passage of the annexation ordinance would be to absorb within the boundaries of the City of Houston all of the unappropriated territory mutually adjacent to that city and West University Place, none of the governmental power of West University Place would be thereby taken away. The result would be merely to leave none of the mutually adjacent territory...