Hunt v. Atkinson

• Decision Date: 23 November 1927
• Docket Number: (No. 9117.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 300 S.W. 656
• Parties: HUNT et al. v. ATKINSON, County Judge, et al.
• Court: Texas Court of Appeals

300 S.W. 656

HUNT et al. v.ATKINSON, County Judge, et al.

(No. 9117.)^*

Court of Civil Appeals of Texas. Galveston.

November 23, 1927.

Rehearing Denied December 8, 1927.

Appeal from District Court, Harris County; Ewing Boyd, Judge.

Suit for mandamus by G. O. Hunt and others against Norman Atkinson, County Judge of Harris County, and the City of Houston. Judgment for defendants, and plaintiffs appeal.Affirmed.

Ward & Ward, of Houston, for appellants.

Sewall Myer and J. H. Painter, both of Houston, for appellees.

PLEASANTS, C. J.

This appeal is from a judgment of the court below in favor of appellees in a suit for mandamus brought against them by appellants to compel the appellee Atkinson, county judge of Harris county, to call an election to determine whether the inhabitants of certain territory in Harris county described in the petition should incorporate said territory under a commission form of municipal government, and for the election of a mayor and two commissioners, as provided for by articles 1154-1159,Revised Statutes 1925.Appellee, the city of Houston, was made defendant because of its claim of jurisdiction over the territory described in the petition by the passage by the city council of an ordinance extending the corporate limits of the city so as to include said territory

The record discloses the following facts: A petition for an election for territory described in the petition and designated as Brooke Smith, then unincorporated, to determine upon incorporation under the commission form of government, and to elect a mayor and two commissioners as provided by articles 1154-1159 of the Revised Statutes of 1925, was filed with the county judge of Harris county on the 27th day of May, A. D. 1927.

The petition was in all things in accordance with the law, and met every legal requirement, and the county judge so found.

The county judge acted on said petition on the 10th day of June, 1927, and refused to call said election, giving as his reasons that the city council of the city of Houston had, on the 31st day of May, 1927, passed an ordinance extending the limits of the city of Houston to take in the territory described in the petition The order of the county judge on the petition is in part as follows:

"And, although I find said petition has the requisite number of signers, duly qualified voters residing within said territory, to require the calling of such election, it is a matter of public knowledge that subsequent to the filing of said petition with me and before I determined the sufficiency thereof, and on or about the 31st day of May, 1927, the city council of the city of Houston passed on its third reading an ordinance extending the territory described in the foregoing petition, and I do therefore decline and refuse to call the election prayed for in said petition."

The provision of the city charter of the city of Houston under which the city council passed such ordinance is as follows:

"Sec. 2b.Extending Limits by Action of City Council.— The city council shall have power by ordinance to fix 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."

No election was held in the city of Houston to determine whether the corporate limits of the city should be extended to include the "Brooke Smith" territory.The ordinance making such extension was duly passed in strict compliance with the provision of the city charter.

The first point presented by appellants brief is the invalidity of the ordinance of the city of Houston annexing the Brooke Smith territory, on the ground that the provision of the city charter authorizing the city council by ordinance to extend the boundary limits of the city and annex additional adjacent territory is unconstitutional and invalid because in conflict with article 1265,Revised Statutes 1925, which requires that election be held by the qualified voters of the city to determine whether the city limits shall be extended and additional adjacent territory annexed.

We cannot agree with appellants that the act of the Thirty-Seventh Legislature, which is now embodied in article 1265, Revised Statutes of 1925, and which authorizes any city in this state having a population of over 100,000 and less than 150,000, as shown by the last preceding United States census, to extend its boundaries by a majority vote of the qualified voters of such city, so as to embrace adjacent territory not included in any town or city of more than 5,000 inhabitants, as shown by the last United States census, invalidates the provisions of the charter of the city of Houston which authorizes the boundaries of the city to be extended by ordinance of the city council without any election being held to determine the question of such extension.

The act of the Legislature, which appellants contend repealed the provisions of the charter of the city of Houston authorizing the annexation of adjacent territory by ordinance of the city council, contains the following provisions:

"Section 1.Any city having a population of one hundred thousand and under one hundred and fifty thousand, as shown by the last United States census, shall have the power and authority to amend its charter so as to extend its boundary limits by annexing additional territory adjacent and contiguous to such city where the territory so annexed does not include any incorporated city or town...