State ex rel. Rose v. City of La Porte

• Court: Texas Supreme Court
• Writing for the Court: SMITH
• Citation: State ex rel. Rose v. City of La Porte, 386 S.W.2d 782 (Tex. 1965)
• Decision Date: 06 January 1965
• Docket Number: No. A-10162,A-10162
• Parties: STATE of Texas ex rel. W. M. ROSE et al., Petitioners, v. CITY OF LA PORTE, Respondent.

Page 782

386 S.W.2d 782

STATE of Texas ex rel. W. M. ROSE et al., Petitioners, v. CITY OF LA PORTE, Respondent.

No. A-10162.

Supreme Court of Texas.

Jan. 6, 1965.

Rehearing Denied Feb. 17, 1965.

Sears & Burns and Shannon L. Morris, Houston, Joe G. Resweber, County Atty., W. K. Richardson, Asst. Co. Atty., John Wildenthal, Jr., City Atty., Houston, for petitioners.

Kiibler & Kiibler, La Porte, Strasburger, Price, Kelton, Miller & Martin, Royal H. Brin, Jr., Dallas, for respondent.

SMITH, Justice.

This is an action in the nature of a quo warranto originally brought by the State of Texas, upon the relation of three individual relators against the City of La Porte, challenging the constitutionality of the Home-Rule Charter of the City of La Porte and the validity of certain annexation ordinances enacted under authority of the claimed void 'Home-Rule Charter.'

The petitioners shall hereinafter be designated as the State, and the respondent as La Porte.

The original petition was filed after the County Judge of Harris County, Texas, had declined to order an election to incorporate a proposed town of Bayshore in May, 1962. Such declination was on the ground that La Porte Ordinances 497, of May 4, 1956, and 624, of December 31, 1960, had placed under first reading the territory involved in the Bayshore petition. The individual relators alleged that both ordinances were void because La Porte did not have 5000 inhabitants at the time of the adoption of its homerule charter on March 22, 1949.

On March 15, 1963, the State filed its Third Amended Original Petition in the nature of a quo warranto upon the relation of the original three individual relators, and in addition thereto, upon the relation of the City of Houston. From the date of the filing of this petition the City of Houston and the City of La Porte became the principal actors in a vigorous battle over the question as to whether or not the territory described in a number of La Porte ordinances was lawfully a part of the City of La Porte, the State contending that La Porte did not, on March 22, 1949, have a population of more than 5000 inhabitants as required by Article XI, Section 5, ¹ of the Constitution of The State of Texas, Vernon's Ann.St.

The validity of La Porte Ordinance No. 587 was additionally attacked, alternatively, on the ground that even if the City of La Porte were a home-rule city and all of the ordinances of annexation of La Porte were ordinances of annexation by a home-rule city, nevertheless, Ordinance No. 587 was void and invalid and afforded no basis for the exercise of either municipal authority or annexation jurisdiction, because the description of the boundaries of the territory purported to be annexed contained in Ordinance No. 587 was so defective as to describe no territory at all.

The State further alleged, in the alternative, in this Third Amended Original Petition, upon which the case went to trial, that the territory purportedly described in and contained in each of the La Porte annexation ordinances under attack was actually a part of the City of Houston and was under the annexation jurisdiction of the City of Houston.

The trial court, apparently following the theory of the State that a home-rule status must be based upon the fact of the existence of more than 5000 population and not upon a mere declaration by the Legislature or by the city council that such a home-rule status existed, and apparently being of the opinion that where quo warranto places such fact in issue the courts have both the constitutional power and the constitutional duty to determine that fact judicially, submitted special issues ² to the jury, the trier of the facts in this case, for determination. These special issues were submitted in the face of the contention of La Porte throughout the trial that the determination of the question of whether La Porte had a population of more than 5000 on March 22, 1949, was not a fact issue, and that the finding of the governing body of the City of La Porte was conclusive, having been made in good faith, and there being neither pleadings nor proof of fraud.

The trial court disregarded the jury's answers to Special Issues 1 and 4, and entered judgment that the Home-Rule Charter of La Porte was wholly void and invalid; that all annexation ordinances adopted by La Porte after March 22, 1949, were wholly void and invalid; and La Porte was by the judgment perpetually enjoined from exercising or claiming any municipal authority or annexation jurisdiction within any portion of the area involved.

The Court of Civil Appeals reversed and rendered judgment in favor of La Porte, holding La Porte to be a valid home-rule city, and that La Porte had validly adopted its annexation ordinances, including Ordinance No. 587, covering the territory in question and that such ordinances were adopted prior in time, thereby taking precedence over the Houston ordinance. 376 S.W.2d 894.

We granted the State's application for writ of error to consider the above holdings of the Court of Civil Appeals. We have concluded to affirm that part of the judgment of the Court of Civil Appeals declaring La Porte to be a valid home-rule city, but that part of the judgment declaring that Ordinance No. 587 contained a valid description of the proposed annexed territory, is reversed and judgment is here rendered that the description is void; and, therefore, Ordinance No. 587 is of no validity.

Validity of La Porte's Home-Rule Charter

Perhaps this Court would be justified, insofar as this particular case is concerned, in reaching a judgment favorable to La Porte on the question of whether or not La Porte had a population of more than 5000 on March 22, 1949, by holding that there is evidence of probative force to support the jury's answer to Special Issue No. 1, and thereby forego, at this time, passing upon the important law question of whether the governing body of a city is properly empowered to determine whether or not, population wise, its city is eligible to adopt the powers and privileges granted by Article XI, Section 5, of the Texas Constitution. An answer to this question is important not only to La Porte, but to all cities in Texas which are similarly situated. Therefore, we squarely meet the issue presented in an effort to eliminate the uncertainty which would surely continue to exist were we to elect to pursue the course followed by the trial court.

A reasonable construction of the pertinent provisions of Article XI, Section 5, commonly known as the Home-Rule Amendment, leads to the conclusion that, in adopting the Home-Rule Amendment to the Constitution, the voters had no intention of leaving the matter of population determination open indefinitely and subject to question until finally settled by judgment in a quo warranto judicial proceeding.

The Enabling Act, Article 1165, Vernon's Annotated Civil Statutes, passed by the Legislature after the adoption of the Home-Rule Amendment, provides, in part that:

'Cities having more than five thousand 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. * * * ' (Emphasis added.)

This 'subject to' provision is exactly as it appears in the Constitution.

The State argues that the Home-Rule Amendment is not self-executing, and assuming this to be true, it argues that the Enabling Act is controlling. It then reasons that since the Enabling Act does not expressly grant to the governing body the power to determine population, and since there is no language in the Enabling Act which can be construed to impliedly grant to the governing body the power to conclusively determine population, it follows that the most that could be implied from the series of articles of the Statutes, beginning with Article 1165, supra, and ending with Article 1170, is that the governing body, upon the assumption that the City has more than 5000 inhabitants, may initiate proceedings to adopt or amend a charter, 'but that the basis for making the assumption, the fact of population, remains to be determined as a fact when questioned by quo warranto.' (Emphasis added.) Thus, the State seeks to draw a distinction between determinations of population under constitutional provisions and under statutory provisions. We cannot see any reasonable basis for drawing this distinction. Certainly, the cases which we think control the result to be reached do not support such contention. The case of Williams v. Castleman, 112 Tex. 193, 247 S.W. 263 (1922), cited with approval in the later case of Town of Freeport v. Sellers, 144 Tex. 389, 190 S.W.2d 813 (1945), a case which dealt directly with a constitutional requirement, although concerned with a different constitutional provision, is substantial authority supporting La Porte's argument that the matter of population determination is placed directly in the hands of the City's governing body, although the Constitution and the Enabling Act do not expressly so provide, and that when the governing body once ascertained the fact that La Porte had a population of more than 5000 at the time of the adoption of its Home-Rule Charter, such ascertainment is presumed to have been validly exercised in the absence of allegations and of proof of fraud, bad faith or abuse of discretion.

The State seeks to distinguish the Castleman case upon the ground that it was concerned with Article V, Section 18, of the Constitution rather than Article XI, Section 5, and the further ground that the Castleman case mentioned commissioners' courts. We find no merit in this contention. The case of Town of Freeport v. Sellers, supra, deals directly with Article XI, Section 5, supra. Although, in that case there was no actual contest as to the fact of population, this Court stated that in view of the rule announced in Castleman, such a contest could not have...