Forbes v. City of Houston

• Decision Date: 11 July 1957
• Docket Number: No. 13165,13165
• Citation: 304 S.W.2d 542
• Parties: E. E. FORBES et al., Appellants, v. CITY OF HOUSTON et al., Appellees.
• Court: Texas Court of Appeals

Page 542

304 S.W.2d 542

E. E. FORBES et al., Appellants, v. CITY OF HOUSTON et al., Appellees.

No. 13165.

Court of Civil Appeals of Texas, Galveston.

July 11, 1957.

Rehearing Denied Aug. 12, 1957.

W. Sears McGee, Hofheinz, Sears, James & Burns, and Will Sears, Houston, and Robert L. Burns, Houston, of counsel, for appellants.

George D. Neal, City Atty., and Homer T. Bouldin, Senior Asst. City Atty., Daniel

C. Arnold, David T. Searls, and Vinson, Elkins, Weems & Searls, Houston, for appellees.

BELL, Justice.

This case involves an attack upon annexation ordinance No. 3351 passed by the City Council of the City of Houston on December 31, 1956. Under the terms of the ordinance rather extensive territory lying adjacent to the city was added to the corporate limits of Houston.

Appellants, who were the plaintiffs in the trial court, by their First Amended Original Petition, asserted two causes of action. The plaintiffs in the causes of action are different.

In the first cause of action some one hundred individual citizens of the territory annexed sued the City of Houston seeking a declaratory judgment that the ordinance was void, and seeking an injunction to prevent assessment and collection of ad valorem taxes. They sued in their individual capacities and as representatives of the other residents of the territory annexed.

In the second cause of action certain citizens of the City of Houston, as tax payers, sued the City of Houston and its controller seeking to enjoin payment of any debts or claims of any Fresh Water Supply District or Water Control and Improvement District situated within the annexed territory.

Neither the County Attorney of Harris County, nor the Attorney General of Texas, joined in either of the causes of action.

The appellees, in their answer to the appellants' first cause of action, filed special exceptions, a general denial and special answers. The special answers stated that the ordinance can only be attacked by a direct suit in the nature of a quo warranto proceeding as the complaints of appellants at most set up mere irregularities in the passage of the ordinance.

Appellees' answer to the second cause of action is substantially the same as to the first cause of action with the added special answer that under Article 1182c-1 of the Laws of Texas, 1925, Vernon's Ann.Civ.St., authority is given the city to assume the indebtedness of Fresh Water Supply Districts and Water Control and Improvement Districts.

Both appellants and appellees filed motions for summary judgment. The trial court denied appellants' motion and granted that of appellees.

Appellants contend the action of the trial court was erroneous because under the undisputed facts the ordinance was void and in this situation a private citizen may maintain the suit without joinder by the State of Texas.

The City Council annexed the territory under authority of Article I, Section 2b of the City Charter, which reads as follows:

'Sec. 2b. Extending Limits by Action of City Council--The City Council shall have power by ordinance to fix the the boundary limits of the said City of Houston and to provide for the extension of said boundary limits and the annexation of additional territory lying adjacent to said city with or without the consent of the territory and inhabitants annexed; that upon the introduction of such an ordinance in the Council after it has been reported upon by the Ordinance Committee and has been amended as desired by the Council for final passage it shall be published in some daily newspaper published in the City of Houston one time, and shall not thereafter be finally passed until at least 30 days has elapsed after said publication, and when said ordinance is finally passed the said territory so annexed shall be a part of the City of Houston, and the inhabitants thereof shall be entitled to all the rights and privileges of other citizens, and shall be bound by the acts, ordinances, resolutions and regulations of the said city.' (Added by amendment, 1913.)

Appellants contend that all provisions of this Article are mandatory and since the City Council did not comply with them the ordinance is void. They say the Council failed to comply with the provisions in the following respects:

1. The Ordinance Committee did not hold a meeting before or after the ordinance was introduced in the City Council

2. The Committee gave no notice of the time and place of a meeting.

3. No opportunity was given citizens to be heard on the ordinance by the Committee.

4. The Committee did not report on the ordinance after it was introduced.

5. The City Council arbitrarily denied appellants and other citizens the opportunity to be heard at any council meeting, as required by Section 3, Article III of the Charter.

6. The ordinance was not amended as desired by the Council for final passage before it was published in a newspaper, as required by Section 2b, Article I.

7. The ordinance was amended at the Council meeting of November 28, and since there had been publication of the ordinance before the amendment this made it a new ordinance which had been read only once and therefore the publication on November 29 of the ordinance as amended was not a compliance with the Charter.

These represent the complaints concerning alleged failure to comply with the charter provisions.

However, appellants also contend that Article I, Sec. 2b of the Charter is void as being in conflict with Article 1265, Revised Civil Statutes of Texas, Vernon's Ann.Civ.St. art. 1265, and therefore the city is without authority to annex territory without a vote of the persons in the city.

We will first determine the validity of Article I, Sec. 2b, of the Charter, which confers power of annexation, without a vote of the people, upon the City of Houston.

Article I, Sec. 2b, was adopted as an amendment to the Charter in 1913. This was done pursuant to the authority conferred by Article XI, Sec. 5, Constitution of Texas, Vernon's Ann.St. This constitutional provision confers authority upon cities with a population of more than 5,000 inhabitants to adopt charters so long as a provision of the charter is not inconsistent with some provision of the Constitution, or the general laws of the State of Texas. At the time of the adoption of Sec. 2b, Article I, of the Charter, it was valid since it was not inconsistent with the Constitution of Texas or any general law. It therefore effectively conferred power upon the City Council of the City of Houston to annex territory adjacent to the city by passing an ordinance. Thereafter the Legislature of Texas passed an Act which became Article 1265 of the Revised Civil Statutes of 1925. Under this article cities with a population of between 100,000 and 150,000 could annex territory only after a vote of the people of the city. This was held to be applicable to Houston in Hunt v. Atkinson, Tex.Comm.App., 12 S.W.2d 142. There an annexation ordinance passed without a vote of the people while Houston was within this population bracket was held void. However, the City of Houston, under the federal census of 1930, had a population far in excess of 150,000 inhabitants, and Article 1265 was no longer applicable to Houston. The passage of Article 1265 did not render Sec. 2b, Article I, void. It merely suspended its operation so long as Houston remained in the prescribed population bracket. The charter provision was valid when passed and while its effectiveness was suspended so long as an inconsistent general law existed; when the inconsistency was removed by Houston passing out of the class of cities covered by Art. 1265, Sec. 2b, Article I, again became operative. 39 Tex.Jur., Sec. 72, p. 136; 50 Amer.Jur., Sec. 581; Texas & P. Ry. Co. v. Graham, Tex.Civ.App., 257 S.W. 642 (error dism); Texas & N. O. Ry. Co. v. Yerkes, Tex.Civ.App., 156 S.W. 579 (error ref.); Houston & T. C. R. Co. v. Bright, Tex.Civ.App., 156 S.W. 304 (error ref.); Reid v. State of Colorado, 187 U.S. 137, 23 S.Ct. 92, 47 L.Ed. 108; In re Rahrer, 140 U.S. 545, 11 S.Ct. 865, 35 L.Ed. 572; Sturges v. Crowninshield, 4 Wheat. 122, 17 U.S. 122, 4 L.Ed. 529.

Sec. 2b, Article I, of the Charter, being valid and operative, the City of Houston had power by ordinance to annex the territory described in Ordinance No. 3351.

The city, having power to annex the territory by ordinance, without the consent of the inhabitants of the territory annexed, the ordinance may be collaterally attacked only if the ordinance is void on its face. 30A Tex.Jur., Municipal Corporations, Sec. 99, pp. 111-113; Tod v. City of Houston, Tex.Com.App., 276 S.W. 419; Beyer v. Templeton, 147 Tex. 94, 212 S.W.2d 134; Lefler v. City of Dallas, Tex.Civ.App., 177 S.W.2d 231; Phillips v. City of Odessa, Tex.Civ.App., 287 S.W.2d 518 (error ref., n. r. e.).

In Lefler v. City of Dallas, the Court said:

'The attack here made upon appellee's ordinance is a collateral one, not being in nature of quo warranto or to which the state is a party. * * * Appellants recognize this by assuming the burden of establishing utter invalidity of the ordinance on its face; * * *. Appellants' objections to the measure in general are based upon an alleged failure to comply with the law governing annexation; and in this connection, distinction should be drawn between municipal acts unauthorized by law or color of law, and those consisting of a mere irregular exercise of power. Appellants, to maintain a collateral attack, must show an entire want of power on the part of the City to annex * * *, and it is not sufficient to allege a mere irregular exercise thereof. * * * Appellants' contentions, therefore, that the territory is not sufficiently described by metes and bounds; nonjoinder of the area to the City; and that complainants were not afforded a hearing before the Council, are obvious attacks on the regularity of the annexation proceedings * * *.' [Tex.Civ.App., 177 S.W.2d 233.]

The fact that appellants ask for a declaratory...