City of Waco v. Higginson

• Decision Date: 08 December 1920
• Docket Number: (No. 6261.)
• Citation: 226 S.W. 1084
• Parties: CITY OF WACO et al. v. HIGGINSON.
• Court: Texas Court of Appeals

Page 1084

226 S.W. 1084

CITY OF WACO et al. v. HIGGINSON.

(No. 6261.)

Court of Civil Appeals of Texas. Austin.

December 8, 1920.

Rehearing Denied January 19, 1921.

Appeal from District Court, McLennan County; E. J. Clark, Judge.

Suit by C. H. Higginson against the City of Waco and others. Judgment for plaintiff, and defendants appeal. Affirmed.

E. C. Street and Sleeper, Boynton & Kendall, all of Waco, for appellants.

O. L. Stribling, of Waco, for appellee.

BRADY, J.

The appellee instituted this suit in the district court of the Nineteenth judicial district in McLennan county, Tex., against the appellants, city of Waco and its tax assessor and collector, to enjoin and restrain appellants from the collection of taxes assessed and levied by the appellants against the lands of the appellee as described in his original petition for the reason that such lands were not within the corporate limits of the city of Waco, and not subject to assessment for taxes by the city of Waco. The grounds alleged by appellee for the relief prayed for are in substance:

(1) That for a long time prior to December 29, 1913, the city of Waco was a municipal corporation as a city of over 10,000 inhabitants, created and organized under a special act of the Legislature granting a charter to said city, in which such charter the territory and limits defining and designating the city of Waco were particularly described and established.

(2) That on the 29th day of December, 1913, at an election held for that purpose, the inhabitants of the city of Waco, as it then existed, adopted a new charter which had been prepared by a charter committee, selected in pursuance of the action of a mass meeting of the citizens of the city of Waco held for that purpose.

(3) That article 1 of the new charter so adopted defines by metes and bounds the territory constituting the city of Waco, which is the same territory that constituted the city under the old charter.

(4) That the city was duly organized under the charter adopted December 29, 1913, by an election of city commissioner and other officer provided for in that charter.

(5) That the lands of the appellee described in his petition were not on the 29th day of December, 1913, within the city limits of the city of Waco, as defined in article 1 of the new charter adopted December 29, 1913.

(6) That after the adoption of the new charter on December 29, 1913, the board of commissioners of the city determined to amend the charter as adopted by changing the territorial limits and boundaries as designated in article 1 of the new charter, and passed an ordinance enlarging and extending the city limits, and called an election to be held within the territory therein described for the purpose of having qualified voters therein to determine whether or not the charter of the city should be so amended, which election was held on April 7, 1914, at which election there was submitted to the qualified voters of the city of Waco as defined in its new charter as well as said territory to be added the proposition as to whether or not "all that district of country within the following limits should hereby be created into a city to be known and styled as the city of Waco, in the county of McLennan" (setting up by metes and bounds the new territorial limits, which included all the old territorial limits and an extension of the same in certain directions); that the land of the appellee was included in the new territorial limits as defined.

(7) That at an election held on April 7, 1914, the amendment of the city charter was adopted, and the city commissioners thereafter passed an ordinance defining the boundaries of the city of Waco, and declaring that the territory therein should thereafter be and constitute the city of Waco.

(8) That thereafter the land of appellee was listed for taxes for the year 1915 by the city assessor and collector after the appellee had refused to render same for taxes.

(9) That thereafter the city of Waco, through its assessor and collector, assessed taxes against appellee's land so described for the year 1915 amounting in the aggregate to the sum of $1,700.42, which amount at the time of filing this suit the city was undertaking to collect and enforce its lien against said land.

That the adoption of the amendment of the charter of the city of Waco at an election held on April 7, 1914, was without authority of law and in violation of article 11, § 5, of the state Constitution and the statutes enacted under this constitutional provision, in that the amendment was adopted at a period of less than two years after the new charter had been adopted on December 29, 1913, under article 11, § 5, of the Constitution. That the changing and enlarging of the territorial limits of the city constituted an alteration and amendment of the charter as adopted on December 29, 1913, and such amendment was void, and appellee's lands are not subject to taxation by the city of Waco.

That the lands of appellee described in the petition were on the 7th day of April, 1914, exclusively farm lands and only suitable for agricultural purposes, and were at that time and at the time of filing suit being used by appellee for farming purposes; that said land was not adjoining the limits of the city of Waco as established in the charter adopted December 29, 1913. That such land had not been laid off in city lots and blocks and was not being offered by the appellee as city property; that there is situated between the said tract of land and the original limits of the city of Waco other farming lands used exclusively for farming purposes; that in attempting to place said tract of land within the corporate limits of the city of Waco the board of commissioners acted arbitrarily, and not in the proper exercise of the power given to them to submit to the qualified voters the question as to whether or not said land should be included within the city limits.

That the assessed valuation of said land is unreasonable and unjust and imposes an unequal burden of taxation on appellee's land in comparison to burden placed upon other agricultural lands contiguous thereto and not included in the limits of the city of Waco. That said tract of land is not occupied by people engaged in pursuits in the city of Waco, and is not logically any part of the city of Waco.

Defendants answered: First, by exceptions; second, general denial; third, that prior to the adoption of the charter of the city of Waco a charter committee was appointed to frame a charter to be submitted to a vote of the inhabitants of the city, under the constitutional provisions of article 11, § 5, and the Enabling Act of the Legislature, which made its report of a proposed charter to the city commissioners, and along with the report presented a resolution, to be submitted to the voters at the same time with the charter, providing for extension of the city limits so as to include the lands of plaintiff, and which resolution provided that in case it carried the city commissioners should order an election under the provisions of section 20 of the charter for annexation of new territory. Both the proposed charter and the resolution were submitted to a vote of the people and both were duly adopted. The first section of the new charter set out the limits of the city of Waco the same as under the former charter, which did not include plaintiff's land, but in said section it was provided that the limits should be the same as those in the former charter until the boundaries should be extended as provided in the resolution submitted and voted on with the new charter. After adoption of the new charter and said resolution the city commissioners passed an ordinance ordering an election to be held in conformity to the charter and resolution for extending the boundaries, pursuant to which an election was held on the 7th day of April, 1914, and said ordinance extending the city limits so as to include plaintiff's property was adopted by a majority vote. That the effect of the provision in section 1 of the new charter fixing the city limits was to constitute the old city limits as defined in section 1 the city limits until the new city limits could be established in the manner provided in said resolution, and when said limits were so established by the very terms of the charter the old limits ceased to exist, and thereafter the limits of the city of Waco were established as provided in said resolution and in the charter, and there was no alteration or amendment of the charter, but the establishment of the new limits were provided for in the charter itself to come into existence upon the contingencies provided for in the charter, all of which happened as alleged. That immediately after the new city limits were established and brought into existence by operation of the charter the city of Waco assumed jurisdiction throughout the extent of the entire new city limits and exercised municipal control over the same, and the inhabitants thereof enjoyed the privileges and benefits of municipal government, and the children in the new limits attended the public schools of the city, and large sums of money were spent by the city in the new territory, and that, if the procedure by which the lands of plaintiff were taken into the city was irregular or illegal, no person except the state could take advantage thereof, and that the Legislature of the state had passed laws validating the extension of the boundaries of the city of Waco so as to include the lands of the plaintiff.

The case was tried before the court without a jury, and the court held that the proceedings whereby it was sought to annex the lands of the plaintiff to the city of Waco were void for the reason that the effect was to amend the charter of the city of Waco within two years after the adoption of the charter, which was forbidden by article 11, § 5, of the Constitution, and the court gave judgment for the plaintiff to the effect that...