City of El Paso v. Tuck, 5116

• Decision Date: 24 June 1955
• Docket Number: No. 5116,5116
• Citation: 282 S.W.2d 764
• Parties: CITY OF EL PASO et al., Appellants, v. Mrs. John E. TUCK et al., Appellees.
• Court: Texas Court of Appeals

Page 764

282 S.W.2d 764

CITY OF EL PASO et al., Appellants, v. Mrs. John E. TUCK et al., Appellees.

No. 5116.

Court of Civil Appeals of Texas, El Paso.

June 24, 1955.

Rehearing Denied July 20, 1955.

H. E. Brockmoller, Asst. City Atty., Travis White, City Atty., El Paso, for appellants.

Burges, Scott, Rasberry & Hulse, J. F. Hulse, Louis A. Scott, El Paso, for appellees.

PER CURIAM.

This is an appeal by the City of El Paso from a judgment of the 41st District Court of El Paso County, holding that appellees Mrs. John E. Tuck et al. were entitled to have an election called to decide whether or not the inhabitants of an area adjacent to the City of El Paso wished to incorporate the said area into a city; that a petition filed for that purpose-alleged by appellants to have been abandoned-on March 19, 1953, was in sufficient force and effect so as to give appellees priority of jurisdiction over the areas. The trial court denied appellees' petition for mandamus to compel the county judge to call such election. $The trial court filed findings of fact and conclusions of law substantially as follows:

That shortly before January 23, 1953, the City of El Paso had annexed Ascarate, which was part of the Ysleta Independent School District. Fear of further reduction in the territory of the Ysleta Independent School District was a factor in forcing the filing of a petition to incorporate the City of Ysleta on or about January 23, 1953. After the election date was set the leaders of the incorporation movement wanted the election postponed and among other reasons therefor was the enactment by the 1953 Legislature of House Bill 129, appearing in Vernon's Ann.Civil Statutes as an amendment to Art. 2804a. The aforesaid amendment had been the law under which the City of El Paso expanded its boundaries. That the Independent School District of the City of El Paso was also expanded therewith, and in the case of the annexation of Ascarate part of the Ysleta school district had been cut off and put into the El Paso district. The amendment to said Art. 2804a had the effect of preventing any further disturbance of adjoining school districts by extension of the City of El Paso's boundaries. On advice of counsel that an election on incorporation could not be postponed except through a petition to the County Judge to cancel, such a petition was presented and the County Judge did sign an order purporting to cancel the election called in pursuance to the petition filed on January 23, 1953, and immediately thereafter a new petition to incorporate the City of Tsleta was filed March 19, 1953, and the election set for May 16, 1953; that the City Council on May 7, 1953, while in conference with some of the leaders of the incorporation movement in Ysleta, passed a resolution, which was:

'Motion made, seconded and carried that there be spread upon the minutes a statement that this City Council has no plans or intentions for further annexation of the Lower Valley at this time.'

That while it was not clear what the Mayor and Council and said leaders from Ysleta understood the resolution to mean, the Council did not promise not to annex the territory comprising Ysleta during the term of office of said Mayor and Council; that thereafter, on May 9, 1953, a petition signed by approximately forty-six of the original signers of the petition for incorporation, asking the County Judge to cancel the order for election which had been set for May 16th was duly filed, and pursuant to said petition the County Judge did cancel said election order, and no such election was held; that thereafter, on November 18, 1954, the City Council of the City of El Paso introduced ordinance No. 1285 which provided for the annexation of territory which includes the territory described in the petition filed with the County Judge on March 19, 1953; such ordinance was ordered published and was published on November 20, 1954, and republished November 23, 1954. A second ordinance, No. 1301, was introduced at a meeting of the City Council of the City of El Paso on December 23, 1954. Said ordinance was thereafter published, on December 28, 1954. This ordinance was for annexation of practically the same territory as described in the above ordinance except that it did not extend as far east of Ysleta as the territory described in the prior ordinance. On December 8, 1954, an instrument denominated as a supplemental petition, signed by sixty-nine qualified voters living in the territory described in the petition that was filed with the County Judge on March 19, 1953, was presented to the County Judge, asking that he set an election pursuant to the petition theretofore filed on March 19, 1953; that on December 11, 1954, said County Judge refused to call such an election, saying that the introduction by the City Council on November 18, 1954, of Ordinance, No. 1285 had given the City of El Paso prior and exclusive jurisdiction over said territory; that the County Judge by such refusal did not act fraudulently or arbitrarily, but that he did act erroneously upon his bona fide opinion based upon the facts before him at that time; that the area included in the proposed annexation ordinances Nos. 1285 and 1301 was a territory generally urban in character, and suitable and proper for annexation to the City of El Paso; that said ordinances would be valid if the prior assertion of authority over such territory filed in a petition for incorporation of the City of Ysleta on March 19, 1953, was not pending and existing on November 18, 1954; that said proceedings filed on March 19, 1953, had not been abandoned. The trial court further found that there is no lack of due process to the inhabitants of said territory in question, sought to be annexed pursuant to decisions by the Supreme Court of Texas, or of equal protection of the law under either the Constitution of the State of Texas, art. 1, § 3, or under the Constitution of the United States of America, Amendment 14, as asserted in plaintiffs' petition.

Except for the constitutional question raised by appellees the principal question involved in this appeal is whether or not the action of the County Judge in refusing to call the election in the absence of his acting fraudulently or arbitrarily is subject to review by either the District Court or the Appellate Courts.

Appellants' Fourth point asserts that the trial court erred in finding that the March 19, 1953, petition had not been abandoned and was still in full force and effect because the County Judge had held to the contrary, and his decision not being arbitrary or fraudulent is not subject to review.

In passing on the December 8, 1954, petition seeking an election by virtue of the petition filed March 19, 1953, the County Judge refused to call such an election, stating that the city had acquired exclusive jurisdiction over the territory in question, giving as his reasons that the election called for May 16, 1953, pursuant to said March 19th petition, had been cancelled at the request of the petitioners, and the election never held, and that no further orders had been entered and none were pending at the time the City of El Paso had begun its annexation proceedings.

There seems to be a general rule of law that

'In passing on petitions for elections and in deciding whether or not to call an election, the officer with whom such a petition is filed performs a judicial and not a ministerial function.' 29 C.J.S., Elections, § 69, p. 92.

In the case of State ex rel. Burkett v. Town of Clyde, Tex.Civ.App., 18 S.W.2d 202 (error refused), the County Judge ordered an incorporation election under a statute requiring more than 500 inhabitants. The incorporation was attacked by quo warranto on the grounds that there were less than 500 inhabitants in the territory when the election was ordered. The trial court sustained a general demurrer to the quo warranto petition. The Court of Civil Appeals affirmed the trial court's judgment, saying:

'The duty thus imposed upon the county judge was one of a judicial nature, and the law provided no right to have his decision revised and no procedure for doing so. State v. Goodwin, 69 Tex. 55, 5 S.W. 678. Any judicial action involves the possibility of error. In the absence of a right of appeal or some other method of revision, the courts are powerless to correct error in such action. Applying...