City of Wichita Falls v. State ex rel. Vogtsberger, 17636

• Decision Date: 11 July 1975
• Docket Number: No. 17636,17636
• Citation: 526 S.W.2d 618
• Parties: CITY OF WICHITA FALLS, Texas, Appellant, v. STATE of Texas ex rel. Richard VOGTSBERGER, Appellee.
• Court: Texas Court of Appeals

Page 618

526 S.W.2d 618

CITY OF WICHITA FALLS, Texas, Appellant, v. STATE of Texas ex rel. Richard VOGTSBERGER, Appellee.

No. 17636.

Court of Civil Appeals of Texas Fort Worth.

July 11, 1975.

Rehearing Denied Sept. 12, 1975.

H. P. Hodge, Jr., City Atty., Wichita Falls, for appellant.

Paul O. Wylie, County Atty. Archer County, Archer City, and Douthitt & Mitchell, and Frank J. Douthitt, Henrietta, for appellee.

OPINION

MASSEY, Chief Justice.

The City of Wichita Falls accomplished procedure whereby it purported to annex certain territory lying in Wichita and Archer Counties, all to the southeast of its previously existent corporate limits wholly within Wichita County. There was no validation statute applicable thereto prior to the institution of this suit in Quo Warranto by the State of Texas upon the relation of Richard Vogtsberger. The suit constituted a direct attack upon the validity of the annexation.

Trial was to the court without a jury. Judgment was rendered to the effect that the City's annexation be set aside and annulled, and the City appealed.

We affirm.

We have concluded that while there was error, nevertheless there were two persisting grounds upon which the judgment should be affirmed. One reason is because, under the state of the record, there was want of requisite notice of the pendency of annexation proceedings. The other is because the City's Ordinance No. 2756 purported to annex territory which was not (and impliedly was factually found not to have been) 'adjacent' to the pre-existent city limits. 'Adjacency' would be a necessary requisite for valid annexation.

The points where the territory intended to be annexed touched the pre-existent boundary line of the City consisted in the width of U.S . Highway No. 281 as it entered the City from the south. For our purposes the width may be treated as 125 feet. From said pre-existent boundary line the 'finger of land' sought to be annexed 'took-off'--with such width as constant--down the highway toward the south, thence into open country to the east, and ending at the west boundary line of a tract of land called the H. & T.C. R.R. Survey, a distance of approximately 3.5 miles from the points of adjacency to the City of Wichita Falls.

One predicate for the judgment by the trial court was the holding among the Conclusions of Law filed that the description of the land to be annexed by Ordinance No. 2756 was insufficient. With this holding we disagree. It is our opinion that by State v. Wofford, 90 Tex. 514, 39 S.W. 921 (1897), and by Lower Nueces River Water Supply Dist. v. Cartwright, 274 S.W.2d 199, 204, 205 (San Antonio Civ.App., 1954, writ ref., n.r.e.) that in a construction of the subject matter of the ordinance we should treat as certain that which might be made certain, exactly as would be the requirement in the construction of a statute. In a statutory construction it is the duty of a court, where it is possible, to ascertain the intent of the legislative body which has acted and when so ascertained to give effect to the intent; that there is not a requirement for the specificity which is the requirements of deeds . See also the authorities cited in State v. City of Fort Worth, 339 S.W.2d 707, 709 (Fort Worth Civ.App., 1960, writ ref., n.r.e.). We believe that in the present instance the intent of the City in its enactment of Ordinance No. 2756 might be made certain. We therefore sustain the City's contention.

In comport with what is written in the foregoing paragraph, notice given to the public pursuant to the attempted annexation proceedings would in the ordinary case have been sufficient. There would have been sufficiency of notice in so far as it dscribed the property to be annexed.

However, in the instant case we have the peculiar situation where the positive showing is by the partial Statement of Facts before us. In other words, it is not made to appear that we have before us on the appeal all that was before the trial court as evidence. And while we have the court's Conclusions of Law there are no Findings of Fact. At least one of the Conclusions of Law would indicate that denial of due process of the law as provided by our Constitution might lie in the court's implied fact finding that there was want of adequacy of notice to citizens whose rights would be adversely affected by the annexation, and also to the State whose right-of-way on Highway No. 281 was intended to be annexed.

We know that there were Admissions of Fact by the parties filed upon request made therefor. And the Stipulations of Fact to which the parties agreed were reduced to writing and filed. These, along with the exhibits separately filed, constitute the Statement of Facts on appeal. But the foregoing does not necessarily constitute the whole of the evidentiary matter. Nothing anywhere in the record evidences that it did constitute the whole evidence before the trial court.

The judgment reads, in material part, as follows: '. . . the parties entered their appearance by counsel and the exhibits were introduced and evidence stipulated; thereafter, the stipulations, including the proof of the exhibits, were reduced to writing and filed in the record herein; attorneys . . . submitted Memorandum or Trial Briefs, . . . after considering all of the competent evidence, exhibits, briefs and arguments of counsel, the Court is of the opinion that judgment should be entered herein for Petitioner; . . ..' So in the judgment where the court speaks of exhibits introduced and evidence stipulated it is left uncertain whether the whole of the evidence or only some of the evidence was stipulated. In such a circumstance, there being nothing elsewhere in the record in clarification, and since presumptions to be made are such as would support and not impair the judgment of the trial court, we consider ourselves obliged to read the judgment as to the effect that 'some of the evidence' was stipulated, not that all the evidence was encompassed by the stipulation.

The result is that we must presume that the newspaper of the City of Wichita Falls, in which there was publication of the notice of the intended annexation (the City's Charter providing merely that there be publication in a newspaper of general circulation published in the City of Wichita Falls), was in the instant case shown by evidence Not to have been a publication of general circulation in the territory proposed to be annexed outside the City and in part outside Wichita County--in Archer County lying to the south, the location of property of a number of persons affected, including that of the Relator in the case. The form of our statement is correct because it was the State's burden to prove the negative and not the City's burden to prove that the newspaper by which there was publication of notice did have general circulation in the territory annexed. 47 Tex.Jur.2d, p. 587, 'Quo Warranto', Sec. 23, 'Burden of proof'.

By provisions of V.A.T.S., Art. 970a, 'Municipal Annexation Act', Sec. 6, 'Notice and hearing--annexation proceedings', the publication of notice must be in a newspaper having general circulation both in the annexing city and also in the territory proposed to be annexed. In this case the City's notice, published in a paper in the City of Wichita Falls, complied with its Charter provision, but in view of the peculiar state of the record it appears that the notice did not comply with the provisions of statutory law protecting persons in or owning property in the area annexed. There was necessity for compliance with the provisions of both the Charter and the statute. Here, therefore, the judgment must be affirmed upon the theory that there was want of proper notice as provided by Art. 970a relative to territory proposed to be annexed, which want is to be presumed to have been proved. Here the article purports to prescribe the due process of law requisite with reference to notice in annexation cases. The contentions of the City are overruled as applied to its 'notice' propositions and also upon its 'due process' theory.

We believe and hold that on and prior to the approval and adoption of Ordinance No. 2756, annexation such as attempted was not merely vulnerable to direct attack as in the instant proceeding, but even to collateral attack. It would be a void annexation because of the legal nonadjacency of the premises intended to be annexed.

We may take judicial notice that the City is a Home Rule City, and we know that by our legislative enactments it has been granted certain enumerated powers as such. By V.A.T.S., Art. 1175, the power to annex additional territory Lying adjacent to its incorporated boundaries was granted to it. Only such powers granted to it by the legislature may it possess and not additional or contradictory powers, for these would be reserved to the State as representative of its citizens. Therefore it was only land Lying adjacent to the City's former boundaries which it had the power to annex.

In 1970, Justice Brewster of this Court made an exhaustive search into the state of the law in the attempt to resolve the question of whether an attempt by a municipality to annex territory was void. Culmination was the conclusion that an ordinance which purported to annex a strip of land 50 feet wide at the point it was adjacent to an existent municipality, and then 'took off across country for 12 1/2 miles and ended up by adjoining onto the limits of the City of Mansfield' was void for want of that adjacency requisite to the exercise of the power of annexation by ...