Hancock v. Rouse

• Decision Date: 23 January 1969
• Docket Number: No. 15419,15419
• Citation: 437 S.W.2d 1
• Parties: Virgil HANCOCK et al., Appellants, v. William H. ROUSE et al., Appellees. . Houston (1st Dist.)
• Court: Texas Court of Appeals

Page 1

437 S.W.2d 1

Virgil HANCOCK et al., Appellants, v. William H. ROUSE et al., Appellees.

No. 15419.

Court of Civil Appeals of Texas Houston (1st Dist.).

Jan. 23, 1969.

Rehearing Denied Feb. 13, 1969.

Gaines & Merrill, Charles P. Merrill, Kathryn V. Wolfer, Houston, for appellants.

Paul Strong, Houston, for appellees.

MacNaughton & McWhorter, W. A. MacNaughton, Houston, amicus curiae.

COLEMAN, Justice.

This is an action seeking an order requiring the City Council of the City of Bellaire to submit to an election a zoning ordinance proposed by an initiative petition and four zoning ordinances previously enacted by the Council, under Charter provisions concerning Initiative and Referendum Elections. The trial court denied the requested mandamus order and this appeal resulted.

The City of Bellaire is a Home Rule City. Article X of its Charter authorizes initiative, referendum and recall elections and provides the procedure to be followed in requesting such elections.

Section 5 of Article XII of the Charter specially authorizes the Council to enact zoning ordinances. The Charter provides that the City shall have such powers with reference to zoning as are granted by Title 28, Chapter 4, Article 1011a to 1011j, together with all amendments thereto, of the 1925 Revised Civil Statutes of Texas.

Appellant has presented nine points alleging error on the part of the trial court in reaching certain conclusions of law and in making certain findings of fact. It is unnecessary to set out these various points since we are of the opinion that these ordinances, all relating to zoning, are not subject to the provisions of the Charter authorizing initiative and referendum elections.

In Glass v. Smith, 150 Tex. 632, 244 S.W.2d 645 (1952), the court held:

'* * * respondents being otherwise entitled to have the initiative election called and held, cannot be defeated in that right by the refusal of petitioners to perform purely ministerial duties on the ground that in their opinion the ordinance would be invalid if adopted. * * * But to entitle respondents to a writ of mandamus on the ground that they have a legal right to have the election called and held and that petitioners are under a legal duty to order and to hold it, it is not enough that the subject matter of the proposed ordinance be legislative in character but it must also appear that the subject matter of the ordinance has not been withdrawn from the field in which the initiatory process is operative.'

The Supreme Court recognized that the power of initiative and referendum is 'the exercise by the people of a power reserved to them, and not the exercise of a right granted,' and that such a reservation of power in a city charter 'should be liberally construed in favor of the power reserved.' But the Court then said:

'Even so, the field in which the initiatory process is operative is not unlimited. * * * Accordingly, city charters frequently expressly limit the right of initiative to legislative matters. But even though a charter contains no such express limitations * * * the limitation is usually read into the charter by the courts. * * * The field where the initiatory process is operative may also be limited by general law. Article XI, Section 5 of our Constitution provides that no city charter shall contain any provision inconsistent with the general laws of this state. * * * Again, the field may be limited by the city charter itself. Other provisions of the charter may withdraw from the people the power under the initiative provisions to deal with a particular subject. The limitation by the general law or by the charter of the field in which the initiatory process is operative may be either an express limitation or one arising by implication. Such a limitation will not be implied, however, unless the provisions of the general law or of the charter are clear and compelling to that end.

'In all the Texas cases called to our attention in which it has been held that the people of a municipality could not validly exercise a delegated legislative power through initiative proceedings, it will be found that authority to act was expressly conferred upon the municipal governing body exclusively, or there was some preliminary duty such as the holding of hearings, etc., impossible of performance by the people in an initiative proceeding, by statute or charter made a prerequisite to the exercise of the legislative power. Into this class fall the cases of McCutcheon v. Wozencraft, 116 Tex. 440, 294 S.W. 1105; Southwestern Telegraph & Telephone Co. v. City of Dallas, 104 Tex. 114, 134 S.W. 321; Lindsley v. Dallas Consolidated St. Ry. Co., Tex.Civ.App., 200 S.W. 207; Dallas Ry. Co. v. Geller, 114 Tex. 484, 271 S.W. 1106; Denman v. Quin, Tex.Civ.App., 116 S.W.2d 783 (writ ref.).'

The Charter of the City of Bellaire provides that all of the powers granted to cities by Arts. 1011a to 1011j, inclusive, Texas Rev.Civ.Statutes, 1925, are adopted and 'made a part of' the charter. Necessarily the charter also includes the restrictions of the legislative power of the city found in those articles.

Art. 1011b authorizes the 'local legislative body' to divide the city into districts of 'such number, shape, and area as may be deemed best suited to carry out the purposes' of the Act, and within such districts to regulate the construction, repair or use of building or land. It provides that all such regulations shall be uniform for each class or kind of building in a particular district.

Art. 1011c requires that such regulations be made in accordance with a comprehensive plan 'and designed to lessen congestion in the streets; to secure safety from fire * * *; to provide adequate light and air; to prevent the overcrowding of land; * * * to facilitate the adequate provision of transportation, water, sewerage, schools, parks, and other public requirements. Such regulations shall be made with reasonable consideration * * * to the character of the district and its peculiar suitability for particular uses, and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout such municipality, * * *.'

Art. 1011d provides:

'The legislative body of such municipality shall provide for the manner in which such regulations and restrictions and the boundaries of such districts shall be...