City of Oak Cliff v. State

• Decision Date: 07 November 1903
• Citation: 77 S.W. 24
• Parties: CITY OF OAK CLIFF et al. v. STATE ex rel. GILL.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

77 S.W. 24

CITY OF OAK CLIFF et al. v. STATE ex rel. GILL.^*

Court of Civil Appeals of Texas.

November 7, 1903.

Appeal from District Court, Dallas County; Richard Morgan, Judge.

Information in the nature of quo warranto by the state, on the relation of C. A. Gill, against the city of Oak Cliff and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Etheridge & Baker, R. M. Clark, Geo. A. Titlerington, W. A. Bonner, Wm. Charlton, and M. L. Morris, for appellants. Wm. T. Henry, J. J. Collins, R. C. Porter, W. M. Alexander, Wm. P. Ellison, and Walter S. Lemmon, for appellee.

BOOKHOUT, J.

On July 1, 1903, appellee filed in the district court of the Forty-Fourth Judicial District of the state of Texas its information in the nature of a quo warranto, on the relation of C. A. Gill, individually and as acting mayor of the city of Dallas, against the city of Oak Cliff and the various officers thereof, and against the trustees of the independent school district of Oak Cliff, seeking a judicial determination to the effect that the said city of Oak Cliff became disincorporated on July 1, 1903, and that its territory became annexed to the city of Dallas, and that the officials of Oak Cliff and the trustees of the said independent School District in continuing thereafter to perform their respective official duties, became usurpers, and praying judgment of ouster. The petition recites that the city of Dallas was and is a municipal corporation of more than 10,000 inhabitants, duly incorporated as such by a special act of the Legislature of Texas; that, by amendment to the charter of the city of Dallas as then existing, the corporation of the former city of Oak Cliff was abolished, and the corporate limits of the city of Dallas extended by the terms of the said act of the Legislature to include the territory comprised within the limits of the former city of Oak Cliff and some intervening territory; that by virtue of the provision of the said act of the Legislature the public affairs of the city of Oak Cliff under the new arrangement were adjusted, and its corporate property, including the property of the public schools situated in the city of Oak Cliff, disposed of, and the future rights and relations of the two towns after the consolidation determined, as explicitly shown by the allegations of the petition; that the act was duly passed by the Legislature of the state of Texas, and approved by the Governor of Texas, and became effective on the 1st day of July, 1903; that all of the officers of Oak Cliff and the trustees in charge of the public schools refuse to recognize the validity of the said act, or in any respect to yield obedience to the same, but continued to exercise their former prerogatives and authority without regard to the said law. The defendants interposed general and special exceptions challenging the validity of the act amending the charter of Dallas so as to include Oak Cliff. The exceptions were overruled, and exception taken. The cause was submitted to the court on an agreed statement of facts, and from a judgment in favor of plaintiff the defendants appealed.

The first assignment of error reads: "The court erred in not sustaining the general exception of these defendants to the information exhibited herein against them, in that the purported act made the basis of this proceeding is void, in that said act constitutes a special or local law designed to be put in force in Oak Cliff, a city having less than ten thousand inhabitants, and incorporated under the general law, and same is in contravention of the inhibitions contained in section 4 of article 11 and section 56 of article 3 of the Constitution, and the same is not warranted by section 5 of article 11 thereof." Under this assignment five propositions are presented. In the first it is insisted that "the inhibition contained in section 4 of article 11 of the Constitution renders the Legislature powerless to repeal by special act the charter of a city having a population of less than ten thousand inhabitants, and incorporated under general law." In the next three propositions it is asserted that the act in question is void, in that: "(1) It violates that portion of section 56 of article 3 of the Constitution which inhibits the Legislature, except as otherwise provided in the Constitution, from passing any local or special law incorporating cities, or changing their charters. (2) It violates that portion of section 56 of article 3 of the Constitution which inhibits the Legislature, except as otherwise provided in the Constitution, from passing any local or special law changing the name of places, in that the purported act attempts to change the name of Oak Cliff to that of the Ninth Ward of the city of Dallas. (3) It is violative of that provision of section 56 of article 3 of the Constitution which provides: `And in all other cases where a general law can be made applicable, no local or special law shall be enacted,' in that, prior to the passage of the act in question, there existed a general law for the disincorporation of cities incorporated under the general laws." The fifth proposition is: "The act in question is not authorized by section 5 of article 11 of the Constitution, in that the city of Oak Cliff, as affirmatively disclosed by the information, contains a population of less than ten thousand inhabitants, and hence that section is without application."

The provisions of the Constitution, the construction of which is called for by appellants' contentions, are as follows: Article 11, § 4: "Cities and towns having a population of ten thousand inhabitants or less may be chartered alone by general law," etc. Article 11, § 5: "Cities having more than ten thousand inhabitants may have their charters granted or amended by special act of the Legislature," etc. Article 3, § 56: "The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law authorizing * * * incorporating cities, towns or villages or changing their charters."

It is held that the limitations and prohibitions contained in section 56, art. 3, of the Constitution, were intended to operate on such subjects as are embraced alone by that section. City of Dallas v. Western Electric Co., 83 Tex. 243, 18 S. W. 552. The subject of incorporating of cities having more than 10,000 inhabitants, and granting and amending their charters, is embraced in section 5, art. 11, of the Constitution, and is excepted from the prohibitions contained in section 56, art. 3. City of Dallas v. Western Electric Co., supra; Smith v. Grayson Co., 18 Tex. Civ. App. 153, 44 S. W. 921. It is clear that by terms of section 5, art. 11, the Legislature has authority to extend the limits of a city of more than 10,000 inhabitants so as to include a city of less than 10,000 inhabitants, unless it is prohibited by section 4, art. 11. Is the power prohibited by this clause of the Constitution? It will be noted that the power conferred by section 5, art. 11, to enact special laws in relation to cities of more than 10,000 inhabitants, not only includes the power to grant charters, but the power by special law to amend them. In section 4 of article 11, which imposes a limitation upon the authority of the Legislature, restricting its power by special law over cities of less than 10,000 inhabitants, only the word "chartered" is used; and in order to extend the limitation so as to include the amendment or repeal of a charter of a city of less than 10,000 inhabitants, and dissolve its corporate existence, the limitation could only arise by implication, it not being expressly stipulated therein. The question arises then, will the express authority contained in section 5, art. 11, be abrogated by the implied limitation contained in section 4, art. 11?

In Lytle v. Halff, 75 Tex. 132, 12 S. W. 610, Judge Stayton, speaking for the Supreme Court, uses the following language in relation to an implied constitutional limitation of power: "A prohibition of the exercise of a power cannot be said to be necessarily implied, unless, looking to the language and purpose of the Constitution, it is evident that without such an implication the will of the people, as illustrated by a careful consideration of all its provisions, cannot be given effect. * * * An intention to restrict the power of a state Legislature, and especially in reference to such a matter, further than this is done by express limitations, is not to be presumed; and, when it is claimed that this is done by implication, those so claiming ought to be able to point out the provision or provisions of the Constitution which require such implication to give effect to the will of the people evidenced by the entire instrument." In Day Land & Cattle Company v. State (Sup.) 4 S. W. 874, Judge Stayton, again speaking for the court, says: "When it is intended to withhold a power from the Legislature, this is done by some provision of the Constitution clearly expressing such intention." In the case of City of Cleburne v. Railway Company, 66 Tex. 461, 1 S. W. 342, Judge Robertson, for the Supreme Court, says: "A power will be implied only when without its exercise an express duty or authority would be nugatory." In the very recent case from the Supreme Court of Brown v. City of Galveston, 75 S. W. 488, 7 Tex. Ct. Rep. 763, in which case the Supreme Court cites with approval Lytle v. Halff, it is declared: "As we have seen, the power of the Legislature can be limited only by a prohibition contained in the Constitution, either in express terms, or by fair implication arising from the instrument. If the purpose the convention had in adopting the section in question can be effected without the prohibition, none will be implied."

Again, it is to be observed that section 56, art. 3, prohibits, except as otherwise provided in the Constitution, the incorporation of, or changing the charter of, cities by special or local law, while...