City of Pelly v. Harris County Water C. & I. Dist.

• Decision Date: 27 November 1946
• Docket Number: No. A-962.,A-962.
• Parties: CITY OF PELLY et al. v. HARRIS COUNTY WATER CONTROL & IMPROVEMENT DIST. NO. 7 et al.
• Court: Texas Supreme Court

198 S.W.2d 450

CITY OF PELLY et al. v. HARRIS COUNTY WATER CONTROL & IMPROVEMENT DIST. NO. 7 et al.

No. A-962.

Supreme Court of Texas.

November 27, 1946.

Rehearing Denied January 15, 1947.

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

Consolidated suits by the Harris County Water Control & Improvement District No. 7 and others, against the City of Pelly, Texas and others, and against the city of Goose Creek, Texas and others, to enjoin the named defendants from extending their boundaries by ordinance. A judgment for the plaintiffs was affirmed by the Court of Civil Appeals, 195 S.W.2d 241, and the defendants bring error.

Reversed and rendered.

Tom Sanders, of Houston, J. E. Flowers, City Atty., of Goose Creek, and Shannon Morris, City Atty., of Pelly, for petitioners.

Vinson, Elkins, Weems & Francis, Victor W. Bouldin and A. T. Carleton, all of Houston, for respondents.

BREWSTER, Justice.

This is an appeal from a permanent injunction granted by the district court of Harris County in each of two consolidated suits, the trial court judgment having been affirmed by the court of civil appeals. 195 S.W.2d 241.

In one suit, Harris County Water Control & Improvement District No. 7, Tri-City Fresh Water Supply District No. 2, and Harris County Fresh Water Supply District No. 10, respondents, who are hereinafter referred to as Baytown District, Leger District and Busch Terrace District, respectively, joined by their directors, certain taxpayers and a holder of bonds issued by Baytown District, sued the City of Pelly and its mayor and commissioners, petitioners, to enjoin the City of Pelly from annexing parts of Baytown and Leger and all of Busch Terrace.

In the other suit the same plaintiffs sued the City of Goose Creek and its officers, petitioners, to enjoin a threatened annexation of the same territory.

Baytown District is a water control and improvement district organized under art. XVI, Sec. 59, of the Constitution of Texas, Vernon's Ann.St., and art. 7880—1 to 147z, Vernon's Annotated Civil Statutes. It owns and operates a waterworks system, sanitary sewer system, fire department and garbage collection facilities, and it furnishes those services to the residents of its territory. It has outstanding and unpaid $207,000 waterworks and sewer system revenue bonds which are secured by a first lien on the net revenues realized from the operation of its waterworks and sewer system.

The Leger and Busch Terrace Districts are water conservation districts organized under art. XVI, Sec. 59, of the Constitution of Texas, and arts. 7881 to 7959a, Vernon's Annotated Civil Statutes.

Leger District owns and operates a waterworks system, furnishing fresh water to the residents of the district. Under a lease from the United States Government, owner, it also operates a sanitary sewer system. It has unpaid and outstanding waterworks system bonds in the amount of $39,000, which are payable from ad valorem taxes on all taxable property within the district.

Busch Terrace District owns and operates a waterworks system to provide its residents with fresh water. It has unpaid and outstanding waterworks system bonds totaling $11,000; and an ad valorem tax is being levied and collected each year on all taxable property within the district to retire them. Also any surplus income from the operation of its waterworks system is pledged to the payment of these bonds.

On December 8, 1945, the City of Pelly held an election to determine whether it would adopt a Home-Rule Charter, under art. XI, Sec. 5, of the Constitution of Texas, and arts. 1165-1169, R.S.,1925. Its city council met at 7 p. m., when the polls closed on that day, canvassed the returns and declared that the charter had been duly adopted.

The adopted charter carried this provision: "Extension of Boundaries: the City Commission shall have power by ordinance to fix the boundary limits of the City of Pelly; and to provide for the alteration and extension of said boundary limits and the annexation of additional territory lying adjacent to the City, with or without the consent of the territory and inhabitants annexed. Upon the introduction of any such ordinance in the City Commission, it shall be published in the form in which it may be finally passed, in a daily newspaper published in the City of Pelly, at least one time, and said ordinance shall not thereafter be finally acted upon until at least 30 days have elapsed after the first publication thereof; and upon the final passage of any such ordinance, the boundary limits of the City shall thereafter be fixed in such ordinance and when any additional territory has been so annexed, the same shall be a part of the City of Pelly, and the property situated therein shall bear its pro rata part of the taxes levied by the City, and the inhabitants thereof shall be entitled to all the rights and privileges of all the citizens, and shall be bound by the acts, ordinances, resolutions and regulations of the City."

Immediately after declaring the charter adopted and at the same meeting, the Pelly city council resolved itself into the City Commission of the City of Pelly and passed on first reading an ordinance annexing to the City of Pelly all of Busch Terrace District, all of Baytown District except a small tract in its southwest corner and all of Leger District except a few acres along its south boundary line. In that action the city commission was acting under the provisions of the charter above quoted.

The parties stipulated that the City of Pelly had "not called or held an election of any kind for the purpose of annexing the territory within said Baytown District, the Leger District or the Busch Terrace District or for the purpose of assuming the outstanding bonds and indebtedness of said Districts or for the levy of taxes to pay said bonds and indebtedness."

It was to stop further annexation procedure by the City of Pelly that respondents brought this suit against it.

Respondents urge several propositions to support their claim that they cannot be annexed as attempted by the City of Pelly.

They say that since the territory sought to be annexed has a population in excess of 5,000 it is vested with the powers of home rule and petitioners are therefore without authority to annex it, under the holding in City of Houston v. City of Magnolia Park, 115 Tex. 101, 276 S.W. 685. In that case Magnolia Park was already functioning as a municipal corporation under the general laws of this state providing for the incorporation of cities and towns when the City of Houston attempted to annex it. So, although Magnolia Park had not availed itself of its right to operate under a home-rule charter, it was nevertheless a city with the legal right to determine for itself what kind of charter it should live under. Under those circumstances, this court held that one city cannot destroy the self-government of another city.

Citing the holding in City of Galena Park v. City of Houston, Tex.Civ. App., 133 S.W.2d 162 (er.ref.), that two political subdivisions cannot exist at the same time over the same territory for the same purposes, respondents urge that the rule there announced must be applied although the first political subdivision may be established for very limited purposes. Concretely, they insist that since Baytown District was established as a water control and improvement district and Leger and Busch Terrace...