State ex rel. Richmond Plaza Civic Ass'n v. City of Houston

• Decision Date: 17 June 1954
• Docket Number: No. 12608,12608
• Parties: STATE ex rel. RICHMOND PLAZA CIVIC ASS'N et al. v. CITY OF HOUSTON et al.
• Court: Texas Court of Appeals

Page 235

270 S.W.2d 235

STATE ex rel. RICHMOND PLAZA CIVIC ASS'N et al. v. CITY OF HOUSTON et al.

No. 12608.

Court of Civil Appeals of Texas, Galveston.

June 17, 1954.

Rehearing Denied July 8, 1954.

Ewing Werlein, Harris County Dist. Atty., and Ernest A. Knipp, Houston, for appellant.

Will G. Sears, City Atty., Richard H. Burks, Senior Asst. City Atty., and Robert L. Burns, Senior Asst. City Atty., Houston, for appellee City of Houston.

Paul Strong, Houston, for appellee City of Bellaire.

CODY, Justice.

This is a quo warranto proceeding brought through the District Attorney of Harris County upon the relation of members of the Richmond Plaza Civil Association, being some 233 in number, residing in an area which is located just outside and adjoining the city limits of the City of Bellaire and which is referred to in the record as the 'Richmond Plaza Area'. The proceeding questioned the validity of certain elections proceedings by the City of Houston held for the purpose of annexing a large territory surrounding the city, inclusive of the aforesaid 'Richmond Plaza Area', and consequently questioned the authority of the City of Houston to exercise jurisdiction over said territory, inclusive of 'Richmond Plaza Area', and sought, ancillarily, (1) to enjoin the City of Houston from exercising authority in the 'Richmond Plaza Area', and (2) sought a declaratory judgment determining the validity of a contract between the City of Houston and the City of Bellaire by the terms of which Bellaire furnishes water and sewer service to the property owners of 'Richmond Plaza Area', as well as of the ordinances which implement said contract. By the terms of said contract it is provided that the City of Bellaire should charge rates for water furnished to the property owners in the 'Richmond Plaza Area' which exceed the rates and charges applied to users of water in the City of Bellaire by 50%. The terms of the contract further provide that the City of Houston must pay the sewer charges exacted by the City of Bellaire to the property owners in 'Richmond Plaza Area', and no charges are made for the sewer service to owners of property within the 'Richmond Plaza Area'.

This appeal is from a judgment rendered in the 61st Judicial District Court of Harris County, the Honorable Ben F. Wilson presiding, in favor of the City of Houston and the City of Bellaire and against the relators in a trial which was had to the court without a jury. Appellants predicate their appeal upon eight formal points, which, however, are presented for discussion in three separate groups.

The first group presents that the election held on December 30, 1949, which presented to popular vote for adoption or rejection of the proposed extension of the city limits of Houston, was void. This, because the election also submitted the question of whether the bonded or other indebtedness of the various water districts located within the territory to be annexed should be assumed by the City of Houston, and because the voters who were permitted to participate were not limited to those owning taxable property in the City of Houston, who had duly rendered same as provided by Section 3a of Art. VI of the Texas Constitution, Vernon's Ann.St. Said first group of points further presented that said election held on December 30, 1949, was void because the same was ordered on November 29, 1949, to take place on December 30, 1949, which was a period of more than thirty days, and under relators' contention this violated Sec. 2 of Art. VIIb of the Charter of the City of Houston. (In Appendix 'A' attached to this opinion we have set out the relative portions of said Art. VIIb.). We overrule relators' said first group of points.

We will discuss relators' foregoing contentions in inverse order, and we hold that the City Council's order of November 29, 1949, setting the election for December 30, 1949, which was more than thirty days off, did not violate Sec. 2 of Art. VIIb of the City Charter. Relators urge that Section 2(c) of said Article is controlling here. That Section relates to an 'initiative' petition, and requires the council after the receipt of such a petition 'within ten days after the receipt thereof * * * to either pass the ordinance', which proposes to initiate a proposed ordinance, 'without alteration, or submit it to the popular vote at a special election, which must be held within thirty days after the date of the ordering thereof; * * *.' (Emphasis ours.) Relators make no contention that the City Council was dealing here with an 'initiative' petition. But here the City Council, acting under Section 4 of aforesaid Article, on its own motion, submitted to popular vote for adoption, or rejection, the ordinance to extend the city boundaries, being Ordinance No. 4490. And, as will be noted, Section 4 provides for the submission of the ordinance to popular vote to be 'in the same manner and with the same force and effect as provided in this Article for submission on petition'.

Now the council in its administrative capacity construed the quoted language to refer to Section 3 of 'this Article', dealing with 'referendum'. In that Section it is provided that the submission to popular vote shall be made 'at the next municipal election, or the Council may, in its discretion, call a special election for that purpose'. We think that independently of the council's construction of Section 4, that the courts would have been inclined to have held that the language of Section 4 referred back to the preceding 'referendum' Section (as did the council), since Section 4 authorizes the council on its own motion to refer the passing of an ordinance to popular vote. However, the council here was undertaking to administer a power conferred upon it, and unless it could be said that the council's construction was clearly wrong it should be sustained. While we find it unnecessary to pass on whether, had the thirty day provision of Section 2(c) of the Article applied here, the election would have been void, great inconvenience would result if it should now be found that the city limits had not been validly extended. Unauthorized persons would have participated in city elections. Unauthorized taxes would have been collected. And the exercise of police power in the annexed territory would have been no better than trespasses. It is because fo the ensuing inconveniences that would result in overruling administrative constructions that the courts tend to adopt same where not clearly wrong. See 39 Tex.Jur. 235, et seq.

However, here the City Council had two strings to its bow. It duly finally passed Ordinance 3384 on December 30, 1949, after it had found that Ordinance 4490, which extended the city limits had been duly enacted by popular vote, and Ordinance 3384 in all material respects contained the same provisions as were contained in Ordinance 4490. If, therefore, for any reason Ordinance 4490 was not duly enacted by popular vote, then it was merely a void Ordinance. If Ordinance 4490 is void, there is nothing to prevent Ordinance No. 3384 from effecting a valid annexation of the territory which Ordinance No. 4490 failed to annex. Ordinance No. 3384 was duly finally passed by the City Council on December 30, 1949, after the council had canvassed the votes, and determined that the Ordinance had been adopted by popular vote. Relators' position that the territory sought to be annexed by Houston on December 30, 1949 by either Ordinance No. 4490, or Ordinance No. 3384, or both, had not become annexed, is untenable.

We find as a fact that the City Council did not submit the question to popular vote on December 30, 1949, of whether the city should assume the indebtedness of the water districts. Nor do relators make any claim that the City Council in terms did so. However, on December 28, 1949, two days before the popular election aforesaid, the City Council duly passed Ordinance No. 4586, the nature of which is indicated by its caption, which reads: 'An Ordinance Fixing The Effective Date For The Taking Over By The City, Subject To Annexation, Of The Functions, Assets And Obligations Of Certain Water Supply District; Authorizing Certain Audits, Inventories, Examinations, Etc., Provided That If A Certain Pending Annexation Ordinance Be Not Approved This Ordinance Shall Cease To Be Of Any Effect, And Declaring An Emergency'. It is relators' position in that connection that by enacting Ordinance No. 4586 pending, and prior to the election, that the City Council in effect submitted to popular vote the question of whether the indebtedness referred to in Ordinance No. 4586 should be assumed by the city. Relators contend that, by alalogy, the cases of Moore v. Coffman, 109 Tex. 93, 200 S.W. 374, and Black v. Strength, County Judge, 112 Tex. 188, 246 S.W. 79, sustain such position.

We do not deem it necessary to review the cases just cited. By passing Ordinance No. 4586, the City Council was merely obeying Art. 1182c-1, V. A.T.S., which requires that a city, when it has annexed all of the territory within a water control and improvement district, take over all property and assets and assume all debts, liabilities and obligations of such district, and further requires the governing board of the annexing city to 'By ordinance, designate the date upon which the city shall take over and such district shall be abolished, but in no event later than ninety (90) days after the effective date of such annexation'. As a matter of law, the language of Ordinance No. 4586, which we deem unnecessary to quote, indicates that the council intended said Ordinance as a compliance by the 'governing body of the city' with the requirements of Art. 1182c-1. The reason why the legislature enacted Art. 1182c-1 is to be found in the holdings made in Harris County Drainage District No. 12 v. City of Houston, Tex.Com.App., 35 S.W.2d 118; City of Pelly v. Harris County Water Control & Improvement District No. 7, 145 Tex. 443, ...