State ex rel. American Mfg. Co. of Tex. v. City of Fort Worth, 15930

• Decision Date: 16 May 1958
• Docket Number: No. 15930,15930
• Citation: 314 S.W.2d 335
• Parties: STATE of Texas ex rel. AMERICAN MANUFACTURING COMPANY OF TEXAS, et al., Appellants, v. CITY OF FORT WORTH et al, Appellees.
• Court: Texas Court of Appeals

Page 335

314 S.W.2d 335

STATE of Texas ex rel. AMERICAN MANUFACTURING COMPANY OF TEXAS, et al., Appellants, v. CITY OF FORT WORTH et al, Appellees.

No. 15930.

Court of Civil Appeals of Texas, Fort Worth.

May 16, 1958.

Howard M. Fender, Dist. Atty., and Richard U. Simon, Fort Worth, for appellants.

R. E. Rouer, S. G. Johndroe, Jr., Robert R. Goodrich, G. Gordon Whitman, Earl C. Morgan, Lloyd W. Perkins, and John Gano, Fort Worth, for appellee, City of Fort Worth.

Wade, Davis, Callaway & Marshall, and Clyde M. Marshall, Jr., Fort Worth, for appellee Town of Saginaw.

RENFRO, Justice.

With proper leave of the court a quo warranto was filed by the State of Texas on relation of the American Manufacturing Company of Texas to determine the validity of City of Fort Worth Ordinance No. 3418, which purported to annex an area of land that included an area previously annexed by the Town of Saginaw in Ordinance No. 67. The Town of Saginaw was made a party to determine the validity of its Ordinance No. 67.

The court entered a lengthy judgment, the gist of which was to uphold the validity of Saginaw Ordinance No. 67, holding that said ordinance established an enforceable municipal jurisdiction in Saginaw over all the area described in said ordinance; that Fort Worth Ordinance No. 3418 established a valid and enforceable jurisdiction in Fort 'over all that area of land described in said ordinance excepting only that portion of land described in said Ordinance No. 3418 which is contained in the area of land described in said Ordinance No. 67' of the Town of Saginaw.

The area described in Fort Worth Ordinance No. 3418 crosses the tract previously annexed by Saginaw, and includes land on both sides of the Saginaw annexation.

The State and relator contend that since Fort Worth annexation Ordinance No. 3418 included an area theretofore annexed by Saginaw, and inasmuch as the Fort Worth Ordinance was a single non-severable ordinance purporting to annex a single integral area of land, such ordinance was void in its entirety.

The record reflects that Saginaw adopted Ordinance No. 67 on November 26, 1954. On June 15, 1955, an act of the Legislature became effective which validated prior annexation proceedings of towns and cities of 15,000 inhabitants or less. Article 974d-5, Vernon's Ann.Civ.St. On January 11, 1956, Fort Worth, adopted on first reading Ordinance No. 3418, which proposed to annex certain territory including the part previously annexed by Saginaw Ordinance No. 67. Fort Worth Ordinance No. 3418 was finally passed December 12, 1956, on second reading. The instant suit was filed February 19, 1957.

The municipal authority which first commences legal proceedings asserting authority over a given territory thereby acquires a jurisdiction over the same which cannot thereafter be defeated by a subsequent attempted exercise of jurisdiction by a similar municipal corporation. State ex rel. George v. Baker, 120 Tex. 307, 40 S.W.2d 41; State ex rel. Binz v. City of San Antonio, Tex.Civ.App., 147 S.W.2d 551; City of Terrell Wells v. City of San Antonio, Tex.Civ.App., 216 S.W.2d 657; City of Houston v. State ex rel. City of West University Place, 142 Tex. 190, 176 S.W.2d 928; Beyer v. Templeton, 147 Tex. 94, 212 S.W.2d 134.

In the instant case, Saginaw had not only commenced but had completed the annexation of a portion of the territory described in Fort Worth Ordinance No. 3418 before said No. 3418 was passed by the City Council of Fort Worth on first reading.

Under the law as announced and followed in the above cited cases, there can be no doubt Ordinance No. 3418 was invalid in so far as it attempted to annex territory previously annexed by Saginaw.

Fort Worth contends, however, that the ordinance was valid, subject to exclusion of that territory previously annexed by Saginaw.

Ordinance No. 3418 described a single tract of land. It made no mention of the area previously annexed by Saginaw, and of course made no effort to except the Saginaw territory. It dealt only with the annexation of the territory described in said Ordinance. It contained no 'saving clause.'

Since Ordinance No. 3418 was invalid as to a portion of the area attempted to be annexed, we think it was invalid as a whole. The whole ordinance pertained to no one single matter, i. e., the annexation of one certain described tract of land. As said by the Supreme Court in City of Wink v. Griffith Amusement Co., 129 Tex. 40, 100 S.W.2d 695, 698, '* * * since sections 1 and 3 of the ordinance were void * * *, the whole ordinance was void, all sections being interdependent and related to these sections.'

Had Fort Worth known such territory had been annexed previously by Saginaw, it might or might not have annexed the remaining area, or it might or might not have annexed a part of the territory not included in the Town of Saginaw. That is a matter for the City Council of the City of Fort Worth to determine.

To be effective as to the territory exclusive of the Saginaw annexation, the ordinance would have to be reformed. An ordinance may not be reformed by judicial action.

The City of Fort Worth argues by counterpoint that the State was not a real party to the suit, that the District Attorney took no part in the actual trial, citing State ex rel. Steele v. Heath, Tex.Civ.App., 44 S.W.2d 398. In the Steele case the State was 'neither represented nor in any way participating, either through the district attorney or any other officer, * * *' and nobody for State gave notice of appeal.

In the instant case the State brought the suit through...