State ex rel. Kimmons v. City of Azle, No. 18133

• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas
• Writing for the Court: MASSEY
• Citation: 588 S.W.2d 666
• Parties: STATE of Texas ex rel. Jack O. KIMMONS et al., Appellants, v. CITY OF AZLE, Texas, et al., Appellees.
• Decision Date: 04 October 1979
• Docket Number: No. 18133

Page 666

588 S.W.2d 666 STATE of Texas ex rel. Jack O. KIMMONS et al., Appellants,
v.
CITY OF AZLE, Texas, et al., Appellees. No. 18133. Court of Civil Appeals of Texas, Fort Worth. Oct. 4, 1979.
Rehearing Denied Oct. 31, 1979.

Page 667

Wilbur T. Knape, Hurst, for appellants.

Cantey, Hanger, Gooch, Munn & Collins and S. G. Johndroe, Jr., Fort Worth, for appellees.

OPINION

MASSEY, Chief Justice.

In a proceeding in the nature of Quo Warranto the State was denied relief it

Page 668

sought by a summary judgment granted to defendants/respondents City of Azle and its officials. The State appealed.

We affirm.

Giving rise to the complaint of those who are the relators, upon the petition of whom the State (through the District Attorney of Tarrant County) sought and obtained leave to file the suit, was Azle's enactment of a certain ordinance purporting to annex territory which belonged to relators. Attack was upon the authority of Azle, as the home rule city it claimed to be, to annex any territory, let alone that as to which relators held title.

Premise for the contention of the State erroneously lies in its interpretation of the former opinion of this court in State ex rel. City of Azle v. City of Sanctuary, 467 S.W.2d 211 (Tex.Civ.App. Fort Worth 1971, writ ref'd n. r. e.). Interestingly, the State committed itself in that case upon the relation of the City of Azle, and by Quo warranto proceedings attacked another municipality's incorporation as such. Here the State has committed itself upon the relation of certain individual relators and by Quo warranto proceedings has attacked Azle's corporate existence, including its existence as a home rule city since an election held on April 3, 1971.

To be recognized is the fact that in Quo warranto proceedings the presence of the relators along with the State is of no consequence in material aspect, for the Real Party is the State. Relators have no authority to bring suit nor to appeal from any adverse judgment in a case where there might be attack on ground of failure to follow statutory provision of law as in establishing territorial limitations, etc. and no more, for in such a case it would be the exclusive province of the State pursuant to Quo warranto proceedings. Walling v. North Central Texas Mun. Water Auth., 162 Tex. 527, 348 S.W.2d 532 (1961); 47 Tex.Jur.2d, Quo Warranto, §§ 2, 4, 15, 27 (1963) and others of the sections indicative that, at most, the relators are mere nominal parties in a case where the questions involved are not such as engage individual rights as distinguished from their rights as members of the general public. One result of this is that, insofar as the instant case is concerned, propriety of the summary judgment of the trial court is tested exactly as though none other than the State had challenged Azle. Furthermore, the same rule applies to that case already mentioned, State ex rel. City of Azle v. City of Sanctuary, 467 S.W.2d 211. There, and by the decision in that case, Azle is no way bound, although the State might be.

However, in State ex rel. City of Azle it must be noticed that the State was encumbered with "the laboring oar" and was obliged to establish facts entitling it to prevail as against the City of Sancutary. One of the facts it was obliged to establish and have found in the case, as a predicate to any right to relief, was exhibited in our earlier opinion where it was stated: In order to prevail in this cause it was essential for the State to establish that Azle was a city under the Municipal Annexation Act, i. e., under Art. 970a, § 2, subd. A, of which defines a city as an incorporated city, town or village. This it failed to so. It did not allege that Azle was incorporated. Azle's City Secretary testified that Azle was not incorporated.

On the foregoing: It is obvious that the testimony of the Secretary that Azle (in 1969) was not incorporated is, as applied to the instant litigation, both inconclusive and immaterial. Azle was a relator in that earlier case. If there was no other testimony in that case perhaps the State, the real party, became bound; but if so it was bound to City of Sanctuary, under conditions existent at time of the trial, and not to Azle. There the parties adversary were the State and City of Sanctuary. In the instant case the parties adversary are the State and Azle. Furthermore, on its face the opinion of this court in such earlier case shows that the reason the State was held to have failed to establish any right to relief was its failure to prove that Azle was a city. Without that fact proved there was absence of proof Azle had any authority as an incorporated municipality so as to possess

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authority as such under the Municipal Annexation Act, etc. The case stands for no more than this. In the instant litigation against Azle, the State can claim no benefit from its failure to prevail in its earlier case against another municipality upon the relation of Azle. Language of the Justices of our Supreme Court in the case discussed in the paragraph to follow make this fact plain and clear.

State, through its Attorney General, opposed Azle upon an occasion subsequent to State ex rel. City of Azle, the decision in which was made by this court on April 23, 1971. Six months later, on October 20, 1971, (in City of Azle v. Martin, ...