Cohen v. City of Houston

• Citation: 205 S.W. 757
• Decision Date: 06 June 1918
• Docket Number: (No. 361.)
• Parties: COHEN et al. v. CITY OF HOUSTON et al.
• Court: Court of Appeals of Texas

205 S.W. 757

COHEN et al. v. CITY OF HOUSTON et al.

(No. 361.)

Court of Civil Appeals of Texas. Beaumont.

June 6, 1918.

Rehearing Denied October 9, 1918.

Appeal from District Court, Harris County; Henry J. Dannenbaum, Judge.

Action by H. F. Cohen and others against the City of Houston and others. From an adverse judgment, plaintiffs appeal. Affirmed.

See, also, 176 S. W. 809.

Wilson, Dabney & King and Wm. H. Wilson, all of Houston, for appellants. J. C. Hutcheson, Jr., and W. J. Howard, both of Houston, for appellees.

BROOKE, J.

This is an action filed by H. F. Cohen, Wm. H. Wilson, Mrs. C. W. Walker and husband, J. C. Walker, B. Meineke, Miss Sallie Conner, Miss Susan Conner, W. T. Palfrey, J. J. Settegast, M. P. Geiselman, B. C. Dissen, and H. O. Schneider, plaintiffs, against the city of Houston and Ben Campbell and others, sued in their official capacity as mayor and aldermen of the city of Houston, setting up that the plaintiffs were the owners of real estate situated in lands outside of the city of Houston and in the neighborhood thereof, and that the voters in the city of Houston had, by an election held in said city, undertaken to make the said outlying lands a part of said city, and that said city was proceeding to assess, levy, and collect the taxes of the city of Houston on said outlying property belonging to plaintiffs, and praying an injunction against the collection of any city taxes off of said property, and for other relief.

General demurrers were sustained by the court to said petition, and also a general demurrer, on the ground that the question of the liability of said property to pay taxes to the city of Houston could be raised only by the state of Texas in a quo warranto proceeding. The plaintiffs declined to amend, the suit was dismissed by the court, and this appeal was taken.

The case was originally filed October 14, 1914. Plaintiffs' second amended original petition was filed March 9, 1917, and the following is the prayer of said petition:

"Wherefore plaintiffs pray that this court enter its judgment declaring the invalidity and nullity of the proceedings herein attacked, and removing the cloud from the title of these plaintiffs herein described, and enjoining and restraining the collection of any taxes of the city of Houston off of said territory, and off of property therein situated, and particularly of the lands of these plaintiffs situated within said territory, and the doing of any other act by the city of Houston whereby it shall claim or assert that the said described lands or any part of them are a part of the city of Houston, and for all other relief, both general and special, legal and equitable, to which the plaintiffs may be entitled."

The defendants filed, along with other pleadings, various exceptions to said pleadings, including, among others, a number of general exceptions, each stating the ground on which it was urged.

The court, on March 14, 1917, entered its judgment, and decree that the defendants' general demurrers Nos. 5, 6, 7, and 8 to the allegations of plaintiffs' petition be sustained, and that defendants' general exceptions Nos. 9, 10, 11, 12, 13, 14, 15, 16, 18a, and 18d, to the effect that the plaintiffs, as property owners and residents of the annexed territory, were without legal authority to maintain the action, and that same could only be maintained by the state in a quo warranto proceeding be sustained, and that all the remainder of defendants' exceptions to plaintiffs' said amended petition be overruled, to which the defendant excepted, and thereafter, the case being called for trial, plaintiffs by their counsel declined to amend their pleadings, upon which the court dismissed the action, to which judgment the plaintiffs excepted and gave notice of appeal.

The case as originally filed was not only to enjoin the taxation of property within the attempted annexation, but was also to enjoin the issuance of bonds in the sum of $4,500,000 against the city of Houston. This case went up to the Court of Civil Appeals at Galveston heretofore (176 S. W. 809), and that court held that the temporary injunction be refused.

The assignment of error as presented is:

"The court erred in sustaining the general demurrer to plaintiffs' petition, because that the citizens of Houston held an election among the inhabitants of said city, and undertook to annex outlying territory, a part of Harris county, and its population, to said city equal in area to the true limits of the city, and although as much as two-thirds of this territory so sought to be annexed consisted of agricultural or of pasture land, or of woodland, or of other land which was not in any sense urban land, or needed for any city purpose or use, and because the authority contained in the Constitution was to adopt or amend the charter of a city of more than 5,000 inhabitants, and because such agricultural and pasture and other nonurban land was not, within the sense of the word as used in the Constitution, or in the laws, any part of a city, or authorized to be made such by any subordinate body or community, that in so far as the voters of Houston undertook to incorporate said rural property into the city of Houston they were acting beyond the authority contained in the Constitution itself, or in any of the laws, and that hence, so far as they undertook to incorporate said agricultural, pasture, and other nonurban land into the city of Houston, their action was null and void, without any authority, or color of authority, in the law, and wholly ineffective for any purpose; and, being void to that extent, the whole attempted extension of the limits is null and void, since the courts possess no power to make an extension of the limits of Houston in the absence of a lawful extension made by some body or community having power to do so."

The proposition under this assignment is:

"The authority given by the Constitution is that `cities having more than five thousand inhabitants may, by a majority vote of the qualified voters in said city, at an election held for that purpose, adopt or amend their charters.' The voters of a city, by virtue of this grant to adopt or amend a charter of said city, are not given unlimited power of legislation to extend incorporation over outlying territory and population. A necessary limitation on the powers granted is contained in the term `cities' and its definition. The judicial decisions of Texas give to the word `city,' when used in such connection, a definite and fixed meaning. It means a collection of inhabited houses. The term carries with it the idea of a considerable aggregation of people, living in close proximity. Defined by what it is not, in the Texas law a city population is distinguished from a rural population, which is understood to signify a people scattered over the country, and engaged in agricultural pursuits, or some similar vocation requiring a considerable territory for its support. A section of country so inhabited cannot be called a city, nor treated as a part of a city, without doing violence to the meaning ordinarily attached to that word. Where any considerable amount of agricultural, grazing, or timber land not used for, or susceptible of, city use is added to a city by the vote of a new charter to such city by its qualified voters, such annexation of timber, grazing, and agricultural lands is void, and the whole annexation is void; for there is no power in the courts to create an addition to the city less than that which has been attempted, but which is ineffective and void, because of the absence of any authority to make the particular extension."

On the other hand, it is contended that appellants' first assignment of error complains of the overruling of the demurrer because it involves the holding that the majority of the voters of the city of Houston, at an election held for that purpose, could amend the charter of said city, so as to extend its limits to include, together with other territory, certain agricultural, pasture, and other nonurban lands.

In the case of Cohen v. City of Houston, reported in 176 S. W. 809, the court discussed the Acts of the 33d Legislature (chapter 147, Vernon's Sayles' Annotated Civil Statutes 1914, arts. 1096a-1096i inclusive), which were adopted to put into effect the amendment to the Constitution, art. 11, § 5, which authorized cities to adopt or amend their charters, but provided that no such charter should contain any provision inconsistent with the Constitution of the state or the general law, which act gave to a city adopting its own charter under that amendment power to fix boundary limits, providing for the extension of boundary limits and the annexation of additional territory, and held that the act superseded, in so far as such cities were concerned, Revised Statutes 1911, art. 781, which requires a vote of the inhabitants of outlying territory before the same can be annexed to a city, so that a provision of the city charter, authorizing it to extend its boundaries to include adjacent territory without vote of the inhabitants of such territory, does not conflict with a general law.

In this case we quote from the opinion of the Galveston Court of Civil Appeals as follows:

"We shall first consider the contention of appellants to the effect that the extension of the city limits so as to include a larger area of outlying territory was illegal and void.

"As has been hereinbefore shown, the special act of 1907, granting a charter to the city of Houston, defined the boundaries thereof as four miles square, of which the center of the courthouse square, in Harris county, in the city of Houston, should be the center. At the time of the passage of the special act no power was lodged in any incorporated city in this state by general law by which it could, in any manner, extend its boundaries, except in the manner prescribed by article 574 of chapter 10, tit. 18, Revised Statutes 1895 (article 781...