City of Wichita Falls v. Bowen

• Decision Date: 15 March 1944
• Docket Number: No. A-22.,A-22.
• Citation: 182 S.W.2d 695
• Parties: CITY OF WICHITA FALLS v. BOWEN.
• Court: Texas Supreme Court

182 S.W.2d 695

CITY OF WICHITA FALLS v. BOWEN.

No. A-22.

Supreme Court of Texas.

March 15, 1944.

Rehearing Denied October 11, 1944.

Error from Court of Civil Appeals of Second Supreme Judicial District; Appeal from Wichita County.

Suit by R. C. Bowen, trustee, against the City of Wichita Falls, Tex., to enjoin defendant from attempting to enforce certain ordinances as against the plaintiff, wherein defendant filed a cross-petition for an injunction against plaintiff to restrain the operation of his busses until plaintiff acquired a franchise and complied with the ordinances. Judgment for plaintiff was affirmed by the Court of Civil Appeals, 175 S.W.2d 732, and defendant brings error.

Judgments of District Court and of Court of Civil Appeals reversed and judgment entered dissolving injunction granted by District Court, and denying plaintiff all injunctive and equitable relief and cause remanded to District Court for further proceedings on defendant's cross-action.

T. A. Hicks and Thelbert Martin, both of Wichita Falls, for petitioner.

T. R. Boone, of Wichita Falls and Alfred Crager, of Fort Worth, for respondent.

CRITZ, Justice.

During all the time here involved, the City of Wichita Falls, Texas, was a home rule city, duly incorporated and operating as such under the Constitution and Statutes of this State. Sheppard Field and Kell Field lay north of the City, and some three or four miles distant from its corporate limits. Sheppard Field was a United States military reservation, where soldiers were trained for service in our armed forces. Kell Field was the City's airport and was used as a combination airport and training school by the Civil Aeronautics Administration. As we understand this record, Kell Field and Sheppard Field adjoin each other, and Sheppard Field lies south of Kell Field. The above two fields were connected with the City by State Highway No. 70, a roadway some 100 to 120 feet wide.

On June 1, 1942, the City passed an ordinance which by its terms annexed the above two fields and the State highway connecting them to the City. Stated in another way, on the date above mentioned, the City passed an ordinance extending its corporate limits so as to include therein the two fields above mentioned, and the State highway connecting them, within the City. As we understand this record, no attack is made on the above ordinance on the ground that the City did not observe all legal formalities in passing or enacting the same.

After passage of the annexation ordinance the City passed two additional ordinances. One of these ordinances has effect to levy a rental charge of two per cent. of the gross income received for transporting passengers for hire in motor busses over the City's streets within its corporate limits. The other ordinance fixes fares to be charged by those transporting passengers for hire in motor busses within the City. Both of these last-mentioned ordinances provide penalties and fines for their violation.

Prior to the passage of the above annexation ordinance, and prior to the passage of the two later ordinances, Bowen held certain certificates of convenience and necessity, which, for the purposes of this opinion, we will assume were duly and legally issued to him by the Railroad Commission of Texas. These certificates on their faces authorize Bowen to operate motor bus lines on and over the section of Highway No. 70 included in the above annexation ordinance, and, of course, operated to subject him to the regulations and rates for transportation as promulgated, fixed, and defined by the Railroad Commission. As we understand, such rates are different from those fixed by the City.

After the passage of the above three ordinances Bowen continued to operate his busses over the section of Highway No. 70 included in the annexation ordinance above mentioned, claiming the right to do so only under the certificates of convenience and necessity issued by the Railroad Commission. He denies that the inclusion of this territory into the City has in any way affected his rights in such territory under these certificates of convenience and necessity. We assume that the City is attempting to enforce its ordinances.

With the record in the above condition, Bowen filed this suit in the District Court of Wichita County, Texas, against the City and its mayor, praying for a judgment declaring the above ordinances void, and enjoining their enforcement as against him. Also Bowen prayed that the City be enjoined from exercising any control over him as a bus operator. The City and its mayor answered Bowen's petition. We will not attempt to detail the pleadings of either the City or Bowen. It is sufficient to say that we will treat them as raising the questions of law we will discuss and decide.

Trial in the district court, before the court without the aid of a jury, resulted in a judgment for Bowen enjoining the City from enforcing, or attempting to enforce, either its rental or rate ordinance as against Bowen. Also, such judgment enjoins the City from exercising, or attempting to exercise, any control over Bowen. As we interpret the judgment of the district court, it does not hold the annexation ordinance void, or even voidable, but merely holds that it cannot operate to affect, diminish, or terminate the rights which the law attaches to the certificates of convenience and necessity held by Bowen and issued by the Railroad Commission. On appeal by the City, the Court of Civil Appeals affirmed the judgment of the district court on a holding that the annexation ordinance was, and is, absolutely void. 175 S.W.2d 732. The case is before this Court on writ of error granted on application of the City.

As we understand this record, Bowen makes no contention that the annexation ordinance above mentioned is void for want of power or jurisdiction on the part of the City to annex adjacent territory in the manner and way provided thereby. Also, as we interpret it, the opinion of the Court of Civil Appeals does not hold this ordinance void on any such theory.

Section 5 of Article XI of our State Constitution, Vernon's Ann.St. commonly known as the Home Rule Amendment, authorizes cities having more than 5,000 inhabitants, by a majority vote of their qualified electors, to adopt or amend their charters, and Section 2 of Article 1175, R.C.S.1925, provides that home rule cities have the power to extend their boundaries and annex additional territory lying adjacent thereto, as may be provided by their charters. Under the statute just mentioned, home rule cities have power to annex adjacent territory in any way their charters may provide. Eastham v. Steinhagen, 111 Tex. 597, 243 S.W. 457; City of Waco v. Higginson, Tex.Com.App., 243 S.W. 1078. In this instance, the City followed the pertinent provisions of its charter in enacting this annexation ordinance.

The opinion of the Court of Civil Appeals holds this ordinance is void because the territory purported to be annexed is not adjacent to the corporate limits of the City within the meaning of Article 1175, supra. This holding is based upon the fact that the territory annexed is only joined to the City by a stem, consisting of a State highway 100 to 120 feet wide, at the line of the City's limits, and extending for some three or four miles at that width before the balance of the annexed territory spreads out and comprises some several hundred acres of land. If any...