Hunt v. Atkinson

• Decision Date: 02 January 1929
• Docket Number: (No. 941-5050.)
• Citation: 12 S.W.2d 142
• Parties: HUNT et al. v. ATKINSON, County Judge, et al.
• Court: Texas Supreme Court

12 S.W.2d 142

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

(No. 941-5050.)

Commission of Appeals of Texas, Section B.

January 2, 1929.

Error to Court of Civil Appeals of First Supreme Judicial District.

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 was affirmed by the Court of Civil Appeals (300 S. W. 656), and plaintiffs bring error. Reversed and rendered.

Ward & Ward, of Houston, for plaintiffs in error.

Sewall Myer and J. H. Painter, both of Houston, for defendants in error.

SPEER, J.

The case is thus well stated by Chief Justice Pleasants of the Court of Civil Appeals (300 S. W. 656):

"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 Court of Civil Appeals affirmed the judgment of the trial court. 300 S. W. 656.

The affirmance was ultimately placed upon the ground that plaintiffs in error's suit is a collateral attack upon the corporate existence of the city of Houston, and it is to a consideration of this point we will address ourselves for the most part.

As preliminary to the main question to be considered, it is necessary to determine whether or not section 2b of the city charter of the city of Houston quoted above is a permissible method for the extension of the boundary limits and the annexation of adjacent territory to said city. This is the method pursued in the present case in the annexation of the "Brooke Smith" territory, and if the law allows that method the present suit must fail whatever irregularities may have existed in the pursuit of that method. For, as said by Chief Justice Pleasants:

"The general rule that the valid existence of a de facto municipal corporation authorized to exist under the laws can only be questioned in quo warranto proceedings brought by the authority of the state has been recognized and enforced by many decisions of our Supreme Court and Courts of Civil Appeals."

Perhaps the very latest authoritative expression upon this subject is that of Kuhn v. City of Yoakum (Tex. Com. App.) 6 S.W. (2d) 91.

But we will revert to the initial question.

Article 1265, Revised Civil Statutes, under the chapter head of "Miscellaneous Provisions," concerning cities, towns and villages, provides:

"Any city having a population of 100,000 and under 150,000 as shown by the preceding Federal 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 having more than five thousand inhabitants according to the preceding Federal census. Such extension shall be effected in the manner following:

"1. The governing body of such city may, upon its own motion, and shall upon the petition of at least ten per cent. of the qualified voters of said city as shown by the preceding general election, submit such proposed amendment to a vote of the qualified voters of such city, which election shall be held as provided by chapter 13 of this title."

Section 5, art. 11, of the Constitution, commonly known as the Home Rule Amendment, provides:

"Cities having more than five thousand (5,000) inhabitants may, by a majority vote of the qualified voters of said city, at an election held for that purpose, adopt or amend their charters, subject to such limitations as may be prescribed by the legislature, and providing that no charter or any ordinance passed...