Graham v. City of Greenville
| Decision Date | 26 November 1886 |
| Citation | 2 S.W. 742 |
| Court | Texas Supreme Court |
| Parties | GRAHAM <I>v.</I> CITY OF GREENVILLE. |
Action to restrain collection of a tax. Judgment for defendant. Plaintiff appealed.
Matthews & Neyland, for appellant. E. W. Terhune, for appellee.
On the twelfth of March, 1884, the appellee was a duly incorporated city, having accepted as its charter the provisions of title 17 of the Revised Statutes. On that day the following paper was filed in the mayor's office:
"To the Hon. Mayor and City Council of the City of Greenville: We, the undersigned, whose names are hereto subscribed, declaring our vote in favor of or against annexation of territory, or extending the limits of the city of Greenville as hereinafter described and set out, to-wit, [here follows the bounds of the territory,] hereby petition your honorable body for all orders and proceedings necessary for the annexation of territory above described as part and parcel of said city of Greenville: For annexation, [here follows 44 names, including that of appellant;] against annexation, [here follows 13 names.]"
All the signers were qualified voters, and resided in the territory described; and the 44 names favoring annexation constituted a majority of the voters of such territory. On the same day, O. D. Moulton, A. G. Pace, and B. F. Britton, qualified voters residing in said territory, filed in the mayor's office an affidavit, to the effect that on the _____ day of April, 1884, a vote was taken for the purpose of determining whether a majority of the inhabitants of said territory, qualified to vote for members of the legislature, were in favor of becoming a part of the city of Greenville, and that 44 persons, being a majority of such qualified voters, had voted in favor of the proposition, and 14 against it. This affidavit was certified by the mayor to the city council, and an ordinance was thereupon passed receiving the territory into the corporate limits of Greenville, and proclamation to that effect was made by the mayor. A tax for the year 1885 was levied by the council upon the appellant's property lying within the annexed territory, and this suit was brought for the purpose of restraining its collection. In addition to the facts just stated, it was shown that, when the above petition was in circulation for signers, several persons signed the paper under the belief that it was merely a petition for an election to determine the question of annexation; but how many thus signed was not shown. It was also proved that the signing of this paper was the only mode of election resorted to for determining the question of annexation. The tax on appellant's property was the first tax assessed upon the annexed territory after it became a part of the city. It was also shown that the appellant had accepted positions of trust under the city government as extended. The court gave judgment, upon the law and the facts, against Graham, and from this judgment he has appealed to this court.
The appellant contends that the property is not liable to taxation by the city because the annexation was not legally made; the vote upon which it was based having been taken otherwise than by ballot. Article 503, Rev. St., reads as follows:
The power of the legislature to extend the limits of a city so as to include adjoining territory is not restrained by the constitution; and the manner of doing so is prescribed only in this respect: that, in case of a city of 10,000 inhabitants or less, this change in the charter shall be effected by a general law. Without some constitutional restraint, it is now conceded almost universally that the legislature may annex or authorize the annexation of contiguous territory without the consent of the persons residing in the corporation or the annexed territory. 1 Dill. Mun. Corp. § 185. The power of the legislature to grant, alter, amend, or recall the charter under which the corporation is acting is supreme, and cannot be irrevocably transferred to any local community within its limits. Blessing v. City of Galveston, 42 Tex. 641. But, while the legislature is not bound to obtain the assent of the persons residing within the contiguous territory before annexing it to a city, it may do so, and provide that the annexation shall not take place unless a majority of such persons shall assent thereto in some manner prescribed by the legislature. This is "in no just sense a delegation of legislative power, but merely a question of the acceptance or rejection of a charter." 1 Dill. Mun. Corp. § 44, and authorities cited.
The legislature, having power to provide by general law for the extension of the corporate limits...
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Ex Parte Francis
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