City of Irving v. Callaway

• Decision Date: 21 December 1962
• Docket Number: No. 16093,16093
• Citation: 363 S.W.2d 832
• Parties: CITY OF IRVING, Texas, Appellant, v. Carl B. CALLAWAY et al., Appellees.
• Court: Texas Court of Appeals

Page 832

363 S.W.2d 832

CITY OF IRVING, Texas, Appellant, v. Carl B. CALLAWAY et al., Appellees.

No. 16093.

Court of Civil Appeals of Texas, Dallas.

Dec. 21, 1962.

Rehearing Denied Jan. 11, 1963.

C. J. Taylor, Jr., City Atty., and Walls & Power, Irving, for appellant.

Strasburger, Price, Kelton, Miller & Martin, and Royal H. Brin, Jr., Dallas, for appellees.

WILLIAMS, Justice.

Carl B. Callaway, Edward Marcus, Morris E. Moore, Bruton Orand, Rae E. Skillern and Jack Wyatt, as original plaintiffs, brought this suit against the City of Irving seeking a temporary restraining order, temporary injunction, and permanent injunction, restraining the defendant City from proceeding further with a 'First Reading' annexation Ordinance which plaintiffs allege to be void. The Ordinance No. 625, was enacted on first reading on July 28, 1960. The Ordinance attempted to annex approximately 40 square miles of land situated in Dallas and Denton Counties. Plaintiffs were property owners and residents in the area described in said Ordinance No. 625 and they allege that the purported Ordinance of annexation was invalid and void ab initio for the reasons, inter alia, that such Ordinance included an area already within the corporate limits of another municipal corporation and also that the property described in such Ordinance was not adjacent to and contiguous with the existing corporate limits of the City of Irving, Texas. After the suit was filed James Frady, and approximately 40 other property owners in the area, filed a plea of intervention, adopting the allegations of plaintiffs' petition. Temporary restraining order was issued and when the matter came on to be heard on temporary injunction the parties stipulated that the hearing should be on the merits for permanent injunction. Following a non-jury trial the court rendered judgment in favor of plaintiffs and intervenors permanently enjoining the City of Irving from taking any further action with reference to the purported annexation Ordinance No. 625. From that judgment the City of Irving brings this appeal.

Appellant's primary attack upon the judgment of the trial court (as contained in its first four points on appeal) is based upon the proposition that this suit is one that must be brought in the nature of quo warranto proceeding by the State of Texas and that since appellees do not have the legal capacity to sue for the relief sought, such action should have been dismissed. Appellant presented this defense to the trial court throught the medium of a motion for summary judgment, motion to dismiss, motion to abate, as well as special exceptions, all of which were overruled.

Both parties agree that this action constitutes a collateral attack upon the inchoate annexation ordinance passed by the City of Irving. The sole question, therefore, is whether such a collateral attack may be made by private citizens, as was done here, or whether such action must be brought in a nature of quo warranto action pursuant to Art. 6253, Vernon's ann.Civ.St.

After a careful review of many cases dealing directly with the question we are of the opinion that the law of Texas is well settled that thwen objections are leveled to an annexation Ordinance relating to irregularities, or which would make it voidable only, same will not support a collateral attack and must be raised only by quo warranto. We think it equally well established that when an annexation ordinance is attacked on grounds which are alleged to make the action of the municipality entirely void then such action may be instituted by any person or persons affected by such void ordinance. The rule is succinctly stated in 30-A Tex.Jur. Sec. 99, pp. 111-113 as follows:

'The validity of an annexation by a city cannot be collaterally attacked in a suit by an individual where the city, in attempting to annex territory, acts under authority conferred by law or its charter, and thereafter assumes and exercises authority over the territory attempted to be annexed; such annexation may be questioned only by a direct suit in the nature of a quo warranto or in a proceeding to which the State is a party. However, the act of extension or annexation is subject to collateral attack by anyone, whenever and wherever its validity is called in question, where it is absolutely void because wholly beyond the powers of the municipality--that is, an act not authorized by law or color of law.'

Our Supreme Court announced this rule of law in the early case of Lum v. City of Bowie, Tex., 18 S.W. 142 (1891) involving an attempt of annexation which was attack by private citizens. Holding that it was not necessary to bring the action in the nature of quo warranto proceeding, the Supreme Court said:

'The proceedings by means of which it was attempted to annex the land of appellants were, we think, void, and not mere irregularities, and the rule is familiar that void acts may be questioned collaterally.'

This rule has been consistently followed by Texas cases to the present time. Waco v. Higginson, Tex.Civ.App., 226 S.W. 1084; City of Houston v. Magnolia Park, Tex.Civ.App., 276 S.W. 685; Kuhn v. City of Yoakum, Tex.Com.App., 6 S.W.2d 91; Hunt v. Atkinson, Tex.Com.App., 12 S.W.2d 142; Grisham v. Tate, Tex.Civ.App., 35 S.W.2d 264; Town of Griffing Park v. City of Port Arthur, Tex.Civ.App., 36 S.W.2d 593; City of Port Arthur v. Gaskin, Tex.Civ.App., 107 S.W.2d 610; City of Galena Park v. City of Houston, Tex.Civ.App., 133 S.W.2d 162; Lefler v. City of Dallas, Tex.Civ.App., 177 S.W.2d 231; City of Pelley v. Harris County Water Control, etc., Tex.Civ.App., 195 S.W.2d 241; Phillips v. Odessa, Tex.Civ.App., 287 S.W.2d 518; State ex rel. City of West Orange v. Orange, Tex.Civ.App., 300 S.W.2d 705 and Forbes v. City of Houston, Tex.Civ.App., 304 S.W.2d 542.

Such being the rule we look to appellees' pleadings to determine the invalidity asserted. The two principal grounds charging the attempted annexation ordinance void ab initio were that (1) such ordinance attempted to annex territory within the corporate limits of another municipal corporation, and (2) that same attempted to annex property which is not adjacent to the corporate limits of the City of Irving.

The right of the City of Irving, a Home Rule City, to annex any territory is derived from Art. 1175, Sec. 2, V.A.C.S., and its own charter. Perforce these authorities the City of Irving has the right to annex territory but, as said by the Supreme Court in City of Houston v. City of West University Place, 142 Tex. 190, 176 S.W.2d 928, 'The only limitation on the city's power to annex additional territory it that it shall be adjacent thereto and not a part of any other municiality * * *.' See also City of El Paso v. Town of Ascarate, Tex.Civ.App., 209 S.W.2d 989; Town of Griffing Park v. City of Port Arthur, Tex.Civ.App., 36 S.W.2d 593; Port Arthur v. Gaskin, Tex.Civ.App., 107 S.W.2d 610; City of West University Place v. Bellaire, 198 S.W.2d 766; Beyer v. Templeton, 147 Tex. 94, 212 S.W.2d 134 (S.Ct.); Pan American Production Co. v. City of Texas City, 157 Tex. 450, 303 S.W.2d 780; Pitzer v. Abilene, Tex.Civ.App., 323 S.W.2d 623.

The foregoing cases are direct authority for the proposition that where an annexation ordinance includes territory already incorporated within another municipality same is wholly void and not merely voidable. It has also been held that if the attempted annexation ordinance includes a part of the territory already covered by an annexation ordinance of a different municipality, then the attempted annexation is invalid as a whole and the ordinance may not be reformed by judicial action. American Mfg. Co. of Texas v. City of Fort Worth, Tex.Civ.App., 314 S.W.2d 335.

In the light of these authorities, and the uncontroverted facts presented here, we are of the opinion that appellees' suit challenging the purported annexation Ordinance No. 625 of the City of Irving clearly demonstrates facts which would declare said inchoate annexation ordinance to be void ab initio, and not merely voidable for irregularitites, so as to justify the bringing of such suit in the nature of a collateral attack rather than directly through the medium of quo warranto proceedings. Appellant's points one through four are overruled.

The trial court, in its judgment, found that the territory embraced by the proposed annexation Ordinance No. 925 was not adjacent to the City Limits of the City of Irving and, therefore, such ordinance was void. By its fifth point of error, appellant assails this finding, contending that such finding is not supported by the evidence. Art. 1175, Sec. 2, V.A.C.S., authorized Home Rule Cities to annex additional territory 'lying adjacent to said city.' The Charter of the City of Irving, which limits the power of the appellant, provides for the extension of the boundary limits and the annexation of additional territory 'lying adjacent to the city.' It is stipulated in this record that the area described in Ordinance No. 625 is not contiguous to any land annexed to the City of Irving by final reading, nor to the...