City of La Porte v. State ex rel. Rose

• Court: Texas Civil Court of Appeals
• Writing for the Court: PHILLIPS; HUGHES
• Citation: City of La Porte v. State ex rel. Rose, 376 S.W.2d 894 (Tex. Ct. App. 1964)
• Decision Date: 18 March 1964
• Docket Number: No. 11154,11154
• Parties: CITY OF LA PORTE, Appellant, v. STATE of Texas ex rel. W. M. ROSE et al., Appellees.

Page 894

376 S.W.2d 894

CITY OF LA PORTE, Appellant, v. STATE of Texas ex rel. W. M. ROSE et al., Appellees.

No. 11154.

Court of Civil Appeals of Texas, Austin.

March 18, 1964.

Rehearing Denied April 8, 1964.

Kiibler & Kiibler, La Porte, Strasburger, Price, Kelton, Miller & Martin, Royal H. Brin, Jr., Dallas, for appellant.

Joe G. Resweber, County Atty., W. K. Richardson, Asst. County Atty., R. H. Burks, City Atty., W. Lawrence Cook, First Asst. City Atty., Sears & Burns, Houston, Shannon L. Morris, Baytown, for appellees.

PHILLIPS, Justice.

This is a suit to establish whether or not certain ordinances purportedly annexing land by the City of La Porte are valid or whether an ordinance enacted by the City of Houston purportedly annexing the same land was prior in time and annexed the land in question.

The action was brought in a quo warranto proceeding originally filed on the relation of W. M. Rose, Dean Johnson and Albert R. Perkins, challenging the validity of annexation rpoceedings of the City of La Porte as to a certain small area in Harris County. Thereafter the City of Houston was added as a relator, and the information was amended to attack the annexation jurisdiction of La Porte as to a much larger area and on a number of additional grounds.

Houston alleged that the area was all under the annexation jurisdiction of Houston rather than La Porte by reason of Houston Ordinance No. 60-989, adopted on first reading on June 22, 1960. The La Porte Ordinance 587 covering the greater part of the area in issue which was passed on first reading on June 6, 1960, some sixteen days before the Houston Ordinance. La Porte Ordinance No. 587 was specifically attacked as having an inadequate description. In addition, La Porte Ordinances Nos. 473, 493 and 550 were passed annexing part of the land in controversy. These latter ordinances all preceded the first reading of Houston Ordinance 60-989 and no question was raised as to the adequacy of their description.

Houston Ordinance 60-989 purports to annex all territory within Harris County not hitherto appropriated by any other municipality.

A quo warranto proceeding was also filed in District Court in Harris County on the relation of W. R. Hays, Charles Hitt, Raymond Neil, Ray Sandy and John Garies, being No. 595022, and attacking the claim of municipal authority and annexation jurisdiction by the City of Houston over the area in question and in particular the application of Houston Ordinance No. 60-989 These relators were allowed to intervene in the present suit on the side of La Porte.

The case was tried before a jury for some two weeks and the issues and the jury's answers thereto were as follows:

'SPECIAL ISSUE NO. 1

'Do you find from a preponderance of the evidence that, on March 22, 1949, the City of La Porte did not have more than 5,000 inhabitants?

'Answer: 'It did not have more than 5,000 inhabitants' or 'It had more than 5,000 inhabitants' as you find the facts to be.

'Answer: It had more than 5,000 inhabitants.

'In connection with the foregoing Special Issue, you are instructed that the resolution of the City Commission of the City of La Porte of December 21, 1948 purporting to determine the population of such city as of both December 1, 1948 and as of the date of its adoption is not, as a matter of law, final and determinative of the question of the population of such city on the date of the Home Rule Charter election, March 22, 1949.

'SPECIAL ISSUE NO. 2

'Do you find from a preponderance of the evidence that, on June 6, 1960, a projection of the course of the center line of the last meander of Taylor Lake and Bayou would not have intersected the center line of Clear Lake for a corner?

'Answer: 'Such projection would not have intersected such center line of Clear Lake for a corner' or 'Such projection would have intersected such center line of Clear Lake for a corner' as you find the facts to be.

'Answer: Such projection would have intersected such center line of Clear Lake for a corner.

'In connection with the foregoing special issue, you are instructed as follows:

'In proceeding along the center line of Taylor Lake and Bayou and following its meanders, a new meander began whenever the center line of Taylor Lake and Bayou changed its direction.

'SPECIAL ISSUE NO. 3

'Do you find from a preponderance of the evidence that La Porte Ordinance No. 587 as passed by the City Commission on June 6, 1960, contained, between the first and second running calls of ordinance 587 as appearing in Defendant's Exhibit 9A, a call south from Spencer Highway down the east line of the W. M. Jones Survey to the south line thereof?

'Answer: 'Yes' or 'No'.

'Answer: No.

'SPECIAL ISSUE NO. 4

'Do you find from a preponderance of the evidence that the La Porte City Commission intended La Porte Ordinance No. 587 to have the east line of the W. M. Jones survey as one of its boundaries?

'Answer: 'Yes' or 'No'.

'Answer: Yes.'

Defendant filed its motion for judgment on the jury verdict, while plaintiff filed a motion to disregard the jury's answers to Special Issues 1 and 4 and a motion for judgment notwithstanding such issues. The court granted the motions of plaintiff, disregarded the jury's findings on Special Issues 1 and 4, and entered judgment that the Home Rule Charter of the City of La Porte, adopted at a special election on March 22, 1949, was wholly void and invalid; that all annexation ordinances adopted by La Porte after March 22, 1949, were wholly void and invalid; and that La Porte be perpetually enjoined from exercising or attempting to exercise or claiming any municipal authority or annexation jurisdiction within any portion of the area in question.

Defendant duly excepted, gave notice of appeal, and has perfected its appeal to this Court.

We reverse the trial court and render judgment that defendant's (La Porte) Home Rule Charter is valid and that the annexation ordinances hereafter specified were valid.

For the purposes of this opinion the parties will be referred to as La Porte and Houston.

The greater part of this proceeding was taken up with the attempt of Houston to prove that the Home Rule Charter of the City of La Porte was and is null and void inasmuch as the population of La Porte was less than 5,000 inhabitants at the time the charter was adopted. Article XI, Section 4, of the Texas Constitution, Vernon's Ann.St. requires that cities and towns having a population of five thousand or less may be chartered alone by general law.

In 1912 the voters of Texas adopted the 'Home Rule Amendment', Article XI, Sec. 5, of our Constitution relating to the government of cities of more than 5,000 inhabitants. Under the authority this amendment and the enabling act, Article 1175, Sec. 2, Vernon's Ann.Civ.St., Home Rule cities have the power to extend the city limits and to annex territory.

It has been the position of the City of La Porte throughout this proceeding that its population on March 22, 1949, the date of the election adopting its Home Rule Charter, was not a fact issue for determination herein, the finding of the City Commission at the time being binding and conclusive. The trial court, however, did allow the issue to be tried and the jury found in favor of La Porte answering that it did have a population in excess of 5,000. The following is a copy of the resolution passed by the Board of Commissioners of the City of La Porte on December 21, 1948, determining the population to be more than 5,000 inhabitants:

'RESOLUTION

'WHEREAS, the City Clerk reported on the survey he had been instructed to make with the utilities in the City as follows:

'City Water Department records show the number of water connections in 1940, the date of the last Federal census, to be 527 and the number of water connections in the City on December 1, 1948, to be 909;

'The Houston Natural Gas Corporation had 527 consumers in the City in 1940 and on Decmber 1, 1948 had 905 consumers;

The Houston Lighting & Power Company on December 1, 1948 had 1073 consumers in the City; the exact number of consumers in 1940 is not available but the present number of consumers is approximately double that of 1940; and

'WHEREAS, based upon a population of 3072, as shown by the 1940 Federal census, the population of the City of La Porte on December 1, 1948, is indicated as follows:

'City Water Department, 5454 inhabitants;

'Houston Natural Gas Corporation, 6678 inhabitants;

'Houston Lighting & Power Company, 6144 inhabitants; and,

'WHEREAS, the Engineer's report on Extension of the Water and Sewer systems for the City of La Porte, dated August 18, 1947, made by Wyatt C. Hedrick, Engineer, Houston, Texas, shows the population in the spring of 1947 to be 4200 inhabitants, with 1015 houses; and

'WHEREAS, said Engineer estimated that when the houses increased to 1258 there would be a total population of 5200 persons; and

'WHEREAS, the City permits show the 269 additional houses were constructed in the City of La Porte from April, 1947 to December, 1948, making a present total of 1384 houses, showing an increase in population to a present total of 5724 inhabitants in the City of La Porte; and,

'WHEREAS, the Federal census in 1920 shows the population of La Porte to be 889, the Federal census in 1930 shows the population of La Porte to be 1280 and the Federal census in 1940 shows the population of La Porte to be 3072; and

'WHEREAS, the rate of increase in population has been greater in the period since the Federal census in 1940 to date, it is evidence that the population of La Porte is in excess of 6000 inhabitants; and

'WHEREAS, based upon the above information, statements of the La Porte Independent School District officials, of the City Superintendent of the Water and Sewer Departments, of business men and others in La Porte familiar with the growth and population of the City, and upon all other reliable, available information, the Board of Commissioners of the City...